News

School district will correct Brown Act violation

Board failed to properly notice potential lawsuit

The Palo Alto school board plans to rectify a Brown Act violation at its next meeting after it failed to properly notice a closed-session discussion of a potential lawsuit from the family of a Palo Alto High School student who said she was sexually assaulted on campus in 2015.

Under the Brown Act, California's open-meeting law, the board president is required to verbally announce the facts and circumstances related to anticipated litigation before going into closed session. The Weekly informed school board President Terry Godfrey of this requirement prior to the meeting, but on Nov. 14, Godfrey said that the district's attorney advised against doing so. The attorney, Greg Dannis of Dannis Woliver Kelley (which recently started providing governance-related legal advice for the district), said the board only had to list on its agenda the applicable government code section, but not announce the facts and circumstances.

"It's the beginnings of an idea that potentially could be a case," Godfrey explained to the Weekly before the board went into closed session. "Our attorney, Greg Dannis, told us what we had to do is indicate that it was related to that (section), to (d)(2) and that there was one case."

In response to an email from the Weekly prior to the board meeting, the district corrected the agenda to include the relevant code section on the day of the meeting. Previously, it had incorrectly listed all three possible applicable sections.

The section listed indicates that "a point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency," government code states.

Three days after the meeting, after requests from the Weekly, Godfrey said that the board plans to remedy the mistake at its next meeting.

The anticipated litigation is from a former student and her parents "regarding the district's response to a Title IX related incident," she said.

The father of the former student confirmed to the Weekly that it is his daughter's case. The Weekly is withholding their names to protect their privacy. They have previously alleged that Paly and district administrators failed to properly handle their report that a male student sexually assaulted her on the campus quad in November 2015.

Godfrey said the district agreed, at the family's request, to sign a tolling agreement, in which the district waives its right to claim that any litigation should be dismissed due to the expiration of a statute of limitations, which would have occurred this month (two years from the date of the alleged assault.)

Godfrey attributed the noticing error to a misunderstanding between interim Superintendent Karen Hendricks and the attorney, who thought she asked for advice on which code section to notice.

The district is also facing potential legal action from the family of another former Paly student who said she was sexually assaulted in a campus bathroom in October 2016. The family is being represented by Gloria Allred, a discrimination attorney known for taking on high-profile sexual misconduct and women's rights cases.

The school board's next regular meeting will begin at 6:30 p.m. on Dec. 5 at the district office, 25 Churchill Ave.

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Comments

2 people like this
Posted by JA3+
a resident of Crescent Park
on Nov 22, 2017 at 9:46 am

"Under the Brown Act, California's open-meeting law, the board president is required to verbally announce the facts and circumstances related to anticipated litigation before going into closed session."

State of California Government Code Section 54956.9 provides a safe harbor here. In particular, 54956.9(g) states in part:

"Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the paragraph of subdivision (d) that authorizes the closed session. If the session is closed pursuant to paragraph (1) of subdivision (d), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage."

While the article later clarifies the obligation to announce "... the paragraph of subdivision (d) that authorizes the closed session", there's no obligation under the Government Code, at least to my knowledge, to disclose the "facts and circumstances related to anticipated litigation", as the article first states.


Like this comment
Posted by Reader
a resident of Adobe-Meadow
on Nov 22, 2017 at 11:18 am

@JA, the agenda notice was specifically for §54956.9(d)(2), which reads:

(2) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.

Seems pretty clear that they needed to state the "facts and circumstances" in this case. This code section overall is as clear as mud, but once narrowed down to just this clause, it is reasonably clear. Sounds like they got bum advice from their lawyers (what else is new?).


Like this comment
Posted by JA3+
a resident of Crescent Park
on Nov 22, 2017 at 11:43 am

[Portion removed due to inaccurate citation of the code section.]


Like this comment
Posted by Reader
a resident of Adobe-Meadow
on Nov 22, 2017 at 11:53 am

@JA3 - "Nowhere in §54956.9 is an obligation imposed to disclose facts and circumstances..."

End of §54956.9(d)(2) reads: "... which facts or circumstances shall be publicly stated on the agenda or announced."

Am I missing something? Keep in mind that it says "stated on the agenda OR announced" - so it wouldn't necessarily appear on the published agenda (though probably would have to be in the minutes? Not sure).


Like this comment
Posted by JA3+
a resident of Crescent Park
on Nov 22, 2017 at 12:49 pm

[Post removed.]


2 people like this
Posted by JA3+
a resident of Crescent Park
on Nov 22, 2017 at 12:54 pm

"Godfrey said the district agreed, at the family's request, to sign a tolling agreement, in which the district waives its right to claim that any litigation should be dismissed due to the expiration of a statute of limitations, which would have occurred this month (two years from the date of the alleged assault.)" Given the tolling agreement, the District appears to rely on §54956.9(e)(3), not §54956.9(e)(2), as I think you're implying. §54956.9(e)(3) states as follows: "The receipt of a claim pursuant to the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5 ." If the District relies on §54956.9(e)(3), then the District is not obligated to disclose the facts and circumstances (since there is written communication from a potential plaintiff and such communication is available to the public upon request).


15 people like this
Posted by cvvhrn
a resident of Midtown
on Nov 22, 2017 at 12:57 pm

cvvhrn is a registered user.

Honestly, in my head every time I see PAUSD in the news, The Benny Hill Song aka Yakety Sax playing over and over again. They have become a meme


I'm no longer mad, but rather marking the days when my child is no longer beholden the the PAUSD train wreck


Like this comment
Posted by records act
a resident of Crescent Park
on Nov 22, 2017 at 5:21 pm

GOV § 54956.9

"(g) Prior to holding a closed session ...shall state on the agenda or publicly announce the paragraph of subdivision (d) that authorizes the closed session."

"(a) ...holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation ...(d) ...litigation shall be considered pending when ...(2) ...based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.

(e) ...“existing facts and circumstances” ...(2) ...that might result in litigation against the agency...shall be publicly stated on the agenda or announced...."





2 people like this
Posted by JA3+
a resident of Crescent Park
on Nov 22, 2017 at 5:39 pm

GC § 54956.9(f) and (g):

"(f) Nothing in this section shall require disclosure of written communications that are privileged and not subject to disclosure pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1).

"(g) Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the paragraph of subdivision (d) that authorizes the closed session. If the session is closed pursuant to paragraph (1) of subdivision (d), the body shall state the title of or otherwise specifically identify the litigation to be discussed, unless the body states that to do so would jeopardize the agency’s ability to effectuate service of process upon one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage."


Like this comment
Posted by cvvhrn
a resident of Midtown
on Nov 22, 2017 at 6:04 pm

cvvhrn is a registered user.

Are you guys like dueling legal briefs?


Like this comment
Posted by cvvhro
a resident of Midtown
on Nov 22, 2017 at 6:30 pm

"dueling legal briefs"
Wow, the image that brings to mind.

Oh wait, you mean piles of paper.


Like this comment
Posted by Reader
a resident of Adobe-Meadow
on Nov 22, 2017 at 7:23 pm

@JA3, you make a good point about whether they could or should have relied on (e)(3), but it appears they did not. Maybe the document didn't specifically "threaten litigation"; maybe the lawyer screwed up (he made not have even seen the document, since it was probably handled by a litigator, not the Brown Act adviser). In any case, they did not make the document available for inspection or say it was privileged (not clear why a standstill agreement would be privileged anyway, but they didn't claim it).

I'm not sure why you are avidly defending the district when they are saying they just did it wrong and taking action to correct it. I am glad that they just admitting they made a mistake and fixing it, which is a pleasant change from their past M.O. and a hopeful sign.


18 people like this
Posted by Kathy Jordan
a resident of Duveneck/St. Francis
on Nov 22, 2017 at 7:23 pm

Yet another missed opportunity to be transparent for the School District and School Board. Why not just err on the side of transparency? Wondering what the downside would have been. In the meantime, actions speak louder than words.


15 people like this
Posted by Kathy Jordan
a resident of Duveneck/St. Francis
on Nov 23, 2017 at 9:46 am

How about PAUSD owning up to its non compliant behavior and not forcing these victims/families to sign nondisclosure agreements? How about PAUSD coming clean and starting fresh, actually showing a commitment to complying with the anti discrimination laws, instead of doing things seemingly to keep things quiet, like not announcing the Cozen final report has been posted on the PAUSD website at the time it was posted, and now maybe not properly noticing this potential lawsuit, which would seem to lead to no one knowing it is happening? What is the import of all these actions? To try to keep things quiet?


11 people like this
Posted by BP
a resident of Barron Park
on Nov 23, 2017 at 1:35 pm

Unfortunately, PAUSD will only change its behavior towards discrimination and sexual harassment/assaults when it loses a big lawsuit.

Ironically, the costs will eventually be passed onto the parents to pay for the settlement. Hopefully, the administrators can be sued personally. That would be another way to change their culture.


3 people like this
Posted by Truth
a resident of Another Palo Alto neighborhood
on Nov 24, 2017 at 10:12 am

@BP,
Only if it loses a big lawsuit and the community finally decides to get legal assistance that isn't trying to encourage an adversarial relationship with families to increase their bottom line. Who makes money in an expensive lawsuit? The lawyers on both sides.

This can be avoided by created systems for handling complaints Collaboratively, and for supporting families on an equal footing with misbehaving admins, such as creating an office of ombudsman that doesn't answer to the district office but rather works for the city and is physically located outside 25 Churchill.

Hey, school board. This district still does not have processes in place for honestly and correctly and efficiently answering records requests. You are required to both answer requests (note: a letter falsely claiming to have filled the request is not the same thing) AND HAVE PROCESSES TO DO SO. The district cannot keep saying it's too hard, or oops we goofed again, for deliberately avoiding the creation of processes to be transparent.





2 people like this
Posted by NDAs
a resident of Stanford
on Nov 26, 2017 at 11:33 am

Kathy Jordan: "How about PAUSD ... not forcing these victims/families to sign nondisclosure agreements?"

It may be the family's lawyer who is advising his client not to talk.

Regardless, you can ask PAUSD for the information after the matter is resolved.

"Where final action is taken with respect to ... settlement agreements and other specified records, the public may receive copies of such records upon request" Web Link

"Once the claim or litigation is no longer 'pending,' ...the public may obtain copies of ...documents concerning the settlement of a claim that are not shielded from disclosure by other exemptions...subject to disclosure under the public interest exemption balancing test [are] court records of a settlement between the insurer for a school district and a minor sexual assault victim" Web Link


6 people like this
Posted by Andrew Maxwell
a resident of Adobe-Meadow
on Nov 28, 2017 at 8:28 am

Andrew Maxwell is a registered user.

Disgusting behavior. Hope student' parents will manage to achieve justice and the court will properly punish the perpetrators.


4 people like this
Posted by Truth
a resident of Another Palo Alto neighborhood
on Nov 30, 2017 at 2:47 am

Now, how do we get them to start correcting flagrant records law violations?


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