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By Jay Thorwaldson

On Deadline: Citizen watchdogs dig out another 'confidentiality' secret -- but such things go w-a-a-y back

Uploaded: May 17, 2012

The practice of public administrators sharing "confidential" information with their elected bosses while keeping it from the public has surfaced, with the discovery of numerous incidents involving Palo Alto schools Superintendent Kevin Skelly and the Board of Education.

Such practices are nothing new, going back decades in local cities, school districts, counties and special districts -- the so-called "public agencies" that govern nearly all our day-to-day contacts with democracy.

It is a surprise that Skelly has been outed, so to speak, for sending regular confidential weekly memos to school board members, as he has presented a public persona of openness and transparency in handling school affairs since he was named superintendent in the spring of 2007. (See story on the memos here, with a link to a formal protest letter from Weekly Publisher Bill Johnson).

A take-home lesson here is that the state's Ralph M. Brown Act, the open-meeting law, extends well beyond meetings. It includes private communications between officials that are part of the decision-making process. It includes "serial" communications of any kind, even when members of an elected body don't meet in person.

There are explicit exceptions to open meetings for personnel matters, actual or potential lawsuits, labor negotiations, such as the "hiring, firing or bringing of charges" provision under the personnel exception. "Personnel matter" is not a blanket cover.

Proper notifications of closed sessions must be followed immediately by a public report on any definitive decisions made, although the definition of a decision is subject to stretching.

After being alerted by citizens Ken and Michele Dauber, Palo Alto parents of five children and founders of "We Can Do Better Palo Alto," the Weekly took up the broader issue of the memos between Skelly and board members. The Daubers filed a Public Records Act request and turned up a weekly memo and other documents. They in turn alerted the Weekly. The Weekly has since filed its own Public Records Act request.

The bigger question in this case, and historically, is why the elected officials allowed these privy communications to happen.

Why did no one on the board -- not one -- speak up and put a stop to them? In earlier cases, council members also allowed such things to occur.

Yet virtually all such officials are briefed on the Brown Act. It is virtually impossible for an outsider to know about the quality of such briefings, which often occur during "boardsmanship training" retreats for multiple districts.

One problem peculiar to school boards, including Palo Alto's, is that there seems to be an emphasis on creating a "leadership team" that includes both the board members and top administrators. This is less of a pattern in cities and counties, in my experience.

A leadership team's emphasis tends to erode the distinction between those elected to govern a district and the administrators hired to run it. It blurs the line between bosses and staff, especially when there is a strong administrator who is adept at furthering such a blending of responsibility.

Similar patterns can happen with cities, counties and special districts -- the latter especially are vulnerable because they are not followed as closely by today's local newspapers and are way below the radar of electronic news.

Historically, the City of Palo Alto had a strikingly similar circumstance in 2000. It was in the form of "Frank's Weekly Memo," after then-City Manager Frank Benest. As editor of the Weekly in mid-2000, I heard about a weekly memo Benest planned to send out. Then I learned Benest had been sending them to City Council members for several months.

I immediately requested a meeting with Benest, and we set up a short after-hours session that afternoon in his office. Staff Writer Jennifer Kavanaugh and I headed over to City Hall. On the way, she asked, "Do you think we'll get the memos?" I replied that we'd get the memos but the real question was whether Benest and I would have a relationship after. We did, actually.

The 15-minute meeting stretched to an hour and a half of sometimes head-to-head discussion. He finally shoved a pile of past memos over to us and we looked through them while he ducked out to another short meeting. They were essentially harmless announcements of awards to city staffers and upcoming city events or programs.

Benest at one point said we could file Public Records Act requests and he would have 10 days to respond for each memo. I said that would be OK if that was the kind of relationship he wanted to have with the Weekly, and I wondered if this was the issue on which he wanted to throw himself in front of the bus. It wasn't. Ultimately the memos were put on the city's website.

The Weekly sued the city twice during my tenure as editor, with Johnson spearheading the suits. One, filed in January 2003 and ultimately settled, was over secret e-mails sent between certain council members and staff members. Oddly, the city attorney's office ruled that making the e-mails or staff responses public would violate the Brown Act.

The settlement was that all e-mail communications between council members and staff would be placed immediately on the city's website -- breaking new ground statewide.

The other suit, in the fall of 2005, was to obtain a $300,000 consultant's report relating to lax supervision in the city's large Utilities Department that resulted in discipline or dismissal of 19 employees and the forcing out of the department director. The court ruled cleanly for the Weekly.

My first personal brush with open meetings was when I was an intern with the Los Gatos Times-Saratoga Observer newspaper (Los Gatos was my home town). I was assigned to cover a Town Council meeting. I arrived early, and the manager invited me into his office -- where the whole council had crowded in. They went over the entire agenda, indicating likely actions they would take in public. I believe they felt if a reporter was present it was OK.

The paper made an issue of it, effectively ending the practice. But it made me acutely aware of the issues.

The Brown Act provides a strong model for good government, but it has great weaknesses. It does not apply to the state Legislature, and it suffers from weak enforcement -- which leaves it up to the elected officials, public watchdogs and the media to enforce it by exposure and public opinion.


Former Weekly Editor Jay Thorwaldson can be e-mailed at [email protected] with a copy to [email protected]

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