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By Jay Thorwaldson

On Deadline: For Palo Alto school officials, transparency is as transparency does

Uploaded: Jun 7, 2012

Palo Alto school officials right now are wrestling with the question of what constitutes "transparency" -- including whether a series of private memos between the Superintendent Kevin Skelly and school board members violate the state's open-meeting law, the Ralph M. Brown Act.

The basic policy question will come up this month at a board planning retreat set for Monday and Tuesday, June 25 and 26. Any action would come later at a regular board meeting.

Skelly and board members, at a special meeting May 31, reacted vehemently to allegations in mid-May by the Palo Alto Weekly that Skelly's weekly confidential memos to board members violate the law.

The board comments followed a lengthy briefing on Brown Act details by Louis Lozano, whose Lozano Smith law firm represents more than a third of California school districts plus other public agencies. Lozano said he saw no violation in Skelly's memos because of a provision to the Government Code, added in 2008, that explicitly allows direct communications between administrators and individual governing-board members so long as views of other board members are not shared.

A second presentation was made by San Francisco-based attorney Karl Olson, representing the Weekly and Publisher Bill Johnson -- whose May 14 letter to the district triggered the meeting. Olson disagreed with Lozano on potential Brown Act violations. Olson read the broadly worded preamble to the act, and cited legal cases and an opinion (non-binding) by the state attorney general.

Both attorneys agreed there is little or no case law -- meaning court or appellate-court rulings -- relating to the 2008 addition. Getting such a ruling is a time- and money-consuming effort -- which throws the issue, for now, into the laps of school board members as a policy question. With an overlay of emotion.

Skelly, in a lengthy written statement issued May 22, said he has sent out weekly memos during the entire five years he has been superintendent. But he denied any intent to violate the Brown Act and said he does not believe there has been a violation.

"One of my most important values as a senior leader in the District is transparency and openness," Skelly wrote. "For this reason and the expectations of our community, it is important that I address this issue directly.

"First, I want the community to know that neither I nor the Board would ever intentionally violate the Brown Act. It is my belief, and the belief of our legal counsel, that my weekly update to the Board members in fact does NOT violate the Brown Act."

Board members echoed that.

Barb Mitchell set the tone, expressing regard for the Weekly but saying that it "published incomplete information on state law, accused people of breaking the law and implied that public documents that have not been requested by citizens ? are examples of secret communications and district efforts to exclude the public.

"These unfounded accusations misrepresent the school district and promote reckless misinformation and gossip."

Dana Tom said he stands behind everything Mitchell said. "And of course I had no idea of what she was going to say," he quipped. He said all board members "had a number of emotions" relating to the accusations, that he feels there was no violation of the law "in any way, shape or form," and, "All I can say I'm doing the best I can." He said he would favor posting online "all our emails and communications" after review for legitimate confidentiality.

Melissa Baten-Caswell said the allegations were "very troubling" to her because she takes laws seriously. "I fully support what my colleagues have said, not knowing what they were going to say." She said she supports putting the memos online, but is concerned about the burden on staff of putting up all emails.

Barbara Klausner continued the quip: "I had no idea what my colleagues would say today," she began. She appreciated the comments "about the substance and the emotional content of what we've been through in the last few weeks. It is difficult. I think it is the first time I've seen any of us get particularly emotional, but I am getting emotional.

"I usually don't get emotional through these things. But it is difficult when you have bent over backwards to try to comply with the Brown Act." She said she has felt the constraints of the act: "How many of you have been public officials and have had to address and solve very complicated public issues and have one or two hands or one or two feet tied behind your back as you have tried to do it?"

Noting that the board only meets twice a month and sometimes until 2 a.m., she said communication on complicated issues becomes hard. "We're not trying to hide anything, but there's only so much time to do the district's business."

She asked if posting all emails would that itself violate the Brown Act prohibition on serial meetings or discourse. Lozano said one thing on which he and Olson agree is that one-way communications from superintendent to board comply with the act but that return messages might be a violation. "It's a web," he said of the law's complexity. He advised the district not to post email replies from board members to the superintendent.

Klausner said she also is concerned that posting the memos online would make it appear the district is "taking a corrective action, and we have done nothing wrong."

The pivotal April 20 memo (now available online) is entitled "Confidential Weekly." Its first three paragraphs are entirely blacked out -- likely signifying a legitimately confidential subject.

Yet even though Skelly offered to post all his memos online, board members said he should hold off until the board can discuss (but not act on) a policy at its board planning and goal-setting retreat coming up Monday and Tuesday, June 25-26. Lozano said he knows of no other district that posts such communications.

Skelly said anyone could request the memos via the state's Public Records Act -- and is already posting those so far requested on the district's website, www.pausd.org. Yet unless one knows of their existence -- some were designated "confidential," which commonly means "don't tell anyone about these" -- how could anyone know to make a request?

There's also a twist in the April 20 memo, as district critic Michele Dauber noted: Skelly invited board members to contact him directly to discuss the "sensitive issue" of the type and quality of counseling available at Gunn High School, which has been subject of criticism.

This twist may be significant. Even if Skelly were to avoid sharing what other board members told him, the two-way exchanges could constitute a polling of the board -- a majority opinion that Skelly could then act upon as administrator without public knowledge or process.

Is that not conducting public business in private? It makes a blanket denial of any wrongdoing problematic, even some defenders of the one-way memos agree. But whether it violates state law is an open question, in the absence of court rulings.

So, because of the delay, I will be one who personally requests receiving the memos under the Public Records Act. As these memos are regular communications, I will submit a single request to cover all memos as they are sent out -- each memo would automatically trigger a new request, in other words. Is that possible? Stay tuned.

Yet the core question remains one of transparency, to which Skelly and school board members repeatedly professed a commitment on May 31.

The board retreat this month will test the board's commitment to the deeper truth that underlies both the complexities of the law and the emotions raised:

Transparency is as transparency does.

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

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