School board approves new rule for anonymous donations

Members disagree on how to balance gifts and public accountability

The need to strike a balance between welcoming anonymous donations and providing transparency as a public agency divided the Palo Alto school board on Tuesday night, with its members ultimately approving in a 3-2 vote a new requirement for internally disclosing donors' identities.

People or organizations who give the district more than $50,000 and wish to remain publicly anonymous will now have to disclose their identity to the superintendent, who would then inform each board member verbally, one by one. The board can waive this requirement in public session.

Newly elected President Ken Dauber, Vice President Jennifer DiBrienza and board member Terry Godfrey supported the new policy, arguing that the board should know who donors are in case there is any reputational or financial risk to the district. The waiver, they said, provides public accountability to the board's decision to accept or reject an anonymous donation.

Board members Melissa Baten Caswell and Todd Collins cast the dissenting votes. Collins said he could not support building into policy what he described as a "clever" workaround for open-meeting law the Brown Act, which prohibits board members from talking to more than one other trustee about district business outside of a public meeting.

"We've basically gotten around it by saying the superintendent will go to each person one at a time and tell them," Collins said. "Then the question is — that's a clever idea; what else can we do to get around the Brown Act?"

Baten Caswell said she was "uncomfortable" with the proposal's potential to make board members feel "beholden" to someone who gives a large sum of money to the district. She was more supportive of working with a vetted donor-advised fund that protects the person or organization's identity.

The other members disagreed with Collins' characterization of the policy as an evasion of the Brown Act. DiBrienza said conversely that she thinks ensuring the board members and superintendent know a donor's identity would increase transparency and accountability.

The policy was spurred by a significant anonymous donation made to Addison Elementary School last year. A third-party representative for the donor approached the school district in 2015 to communicate the donor's interest in making a "substantial" contribution toward renovating aging facilities at Addison.

Though the project has moved forward, with the board accepting the first two of what is expected to be several donations and a firm drafting design plans, it has hung in the balance in some ways as the board debated the question of donor identity over the last year-plus.

At the urging of Addison Principal Amanda Boyce on Tuesday, the board voted to make no attempt to ascertain the identity of the project's donor since he or she initiated the gifts before discussions began over the new policy.

Dauber said he is not fully comfortable with the policy as it stands, but including the waiver is the best way to enable the district to accept anonymous donations and maintain public accountability.

"My belief actually is to the extent that we receive anonymous donations in the future, we will most often waive the requirement that we be informed of the donor's identity. But each and every one of those votes will be an opportunity to have the discussion and to weigh the costs and benefits and to do it in public," he said.

In other business Tuesday, the board elected its new president and vice president for 2018: Dauber and DiBrienza, respectively.

The board also postponed approving a comment letter on Santa Clara County's draft environmental impact report on Stanford University's proposed general-use permit application. The county recently extended its comment period to Feb. 2 at the request of several local agencies, including the school board and Palo Alto City Council.


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3 people like this
Posted by Gunn Dad
a resident of Gunn High School
on Dec 6, 2017 at 7:57 pm

Gunn Dad is a registered user.

The Brown Act "prohibits serial meetings that are conducted through direct communications, personal intermediaries or technological devices for the purpose of developing a concurrence as to action to be taken." (Web Link) So this would be a Brown Act violation if being serially informed of a donor's identity is part deliberating about some particular action -- for example, deciding whether to accept the donation.

So as long as the board has the option to reject a donation, then being serially and secretly informed of the donor's identity seems like a clearcut Brown Act violation.

7 people like this
Posted by Legal eagle
a resident of Crescent Park
on Dec 6, 2017 at 9:38 pm

"Gunn Dad" illustrates the perils of trying to do legal analysis without actually reading the law. SB 1732 amended the Brown Act in 2009 to explicitly permit staff members to inform individual board members of facts, so long as staff members did not inform board members of the views of other board members. See Web Link.

If "Gunn Dad's" view were correct, *any* oral communication from a staff member to more than one board member (or city council member etc.) that touched on a topic within the subject matter jurisdiction of the body would be a violation of the Brown Act if not reduced to writing or shared with the public, even if it didn't share the views of other board members. That's exactly the opposite of what the Brown Act says.

11 people like this
Posted by Samuel L.
a resident of Duveneck/St. Francis
on Dec 6, 2017 at 10:26 pm

Samuel L. is a registered user.

So, the board wants to change the name of two middle schools because it was discovered that they supported Eugenics, but they also want to accept money without knowing who is giving it to them?

1 person likes this
Posted by Mom of little ones
a resident of Evergreen Park
on Dec 6, 2017 at 10:52 pm

Mom of little ones is a registered user.

[Post removed due to misstatement of the board's action.]

1 person likes this
Posted by Reader
a resident of Leland Manor/Garland Drive
on Dec 6, 2017 at 11:12 pm

@Mom, bad news - the board voted explicitly to NOT find out who the Addison donor is. They don't know; we (the public) don't know. The rule they proposed was too convoluted for me to understand, but the motion Godfrey made was crystal clear - don't learn the identity of the Addison donor.

3 people like this
Posted by Legal eagle
a resident of Crescent Park
on Dec 6, 2017 at 11:26 pm

If you want the district not to accept anonymous donations this is easy, no policy required. Of course, then you don't get a badly needed renovation at Addison School.

3 people like this
Posted by Parent of 2
a resident of Crescent Park
on Dec 6, 2017 at 11:47 pm

@eagle, except for the $60 million remaining on the $390 million bond, plus whatever the next bond is, there's hardly a penny for renovations. We are literally one of the richest districts in the state. We can't plead poverty as the reason we do things. I would be happy to see the district (us taxpayers) pay for more modest renovations now or later in exchange for knowing where the money comes from.

2 people like this
Posted by Legal eagle
a resident of Crescent Park
on Dec 6, 2017 at 11:55 pm

Parent of 2 says, "I would be happy to see the district (us taxpayers) pay for more modest renovations now or later in exchange for knowing where the money comes from."

Yes, that's exactly the tradeoff and the board majority disagrees, they would rather accept an anonymous $15 million donation than turn it down. Voters have the opportunity next year to decide if they agree assuming that Dauber and Godfrey run for re-election. I think most people will agree with the tradeoff the board made but it's a political question.

1 person likes this
Posted by kid
a resident of Barron Park
on Dec 7, 2017 at 7:47 am

I will step and take the money if that will help this situation.

2 people like this
Posted by Mom of little ones
a resident of Evergreen Park
on Dec 7, 2017 at 12:00 pm

Mom of little ones is a registered user.

Godfrey made that motion because the district has been working with that Addison donor for years and began the relationship with the expectation that s/he would remain anonymous. Godfrey's motion, I believe, just grandfathered that donor into the old law. It seems it was an act of good faith since we entered into this relationship with a policy that said the donor did not need to reveal him/herself.

[Portion removed due to misstatement of action taken by school board. The board approved on a 3-2 vote a policy allowing the acceptance of future anonymous donations.]

Like this comment
Posted by Gunn Dad
a resident of Gunn High School
on Dec 8, 2017 at 7:10 am

Gunn Dad is a registered user.

Legal Eagle, thanks for the update about the 2009 amendment. P.S. The Brown Act does not prohibit communication involving "more than one board member", it only prohibits communications that involve a board majority.

2 people like this
Posted by Even more legal of an eagle
a resident of Old Palo Alto
on Dec 9, 2017 at 11:04 am

Board members can have reasonable disagreements on the policy of accepting or rejecting anonymous donations. That's appropriate and what Boards are for. But let's not pretend there is a legal impediment to the policy. The policy is legal, as is just taking the money, as is turning down the money. This is not a dispute about the law. It's a policy difference among board members.

Let's review:

Ken, Terry, and Jennifer voted to allow the district to continue to accept anonymous donations with the restriction that the board will have to vote in open session each time and will have the opportunity to know the identity of the donor.

Melissa just wants to take the money with no process and no opportunity to know anything about who it's from.

Todd wants to turn down the money, even if it is badly needed.

Voters can decide which position is best.

2 people like this
Posted by Legal Seagull
a resident of Old Palo Alto
on Dec 9, 2017 at 12:31 pm

@even more legal of an eagle, I think you have it partly right. Dauber, Godfrey, and Dibrienza (I'm not on a first name basis, as you seem to be) voted that the superintendent and board members could keep something secret (the name of the donor) by sharing it verbally among themselves and agreeing never to write it down (which would create a public record) or telling anyone else - basically a conspiracy to keep it from the public and evade the Public Record Act. They seemed to think this would be ok because, well, there was MONEY involved, so principles were a secondary consideration.

Collins said that approach was "clever" but "too close to the line" and voted against it. He might have the position you say (I don't know), but that's not what the vote was on. (BTW, we are a pretty well-off district, with property values in the billions, so I'm not sure when donations would be "badly needed" - but I suppose it could happen. It does seem that whenever someone offers money, no one ever feels like, "no thanks, I don't really need it.").

Baten Caswell, I'm not sure what her view was, aside from she wanted to accept money from donor-advised funds and she voted against the policy.

You may be an experienced Brown Act and CA-PRA lawyer, I'm not sure - but it seems to me until something like this is tested in court, it isn't clear whether it is legal or not. So the jury is still out (literally!) on whether this approach would stand up.

2 people like this
Posted by Hoover parent
a resident of Hoover School
on Dec 9, 2017 at 1:11 pm

Calling a policy that carefully complies with the law a "conspiracy" is sloppy. A conspiracy is when you violate the law and evade the consequences, not when you comply with the law on purpose. Same thing with the "spirit" of the law mentioned in the editorial. Just say, "the policy is legal but I don't like anonymous donations." And the idea that anything that hasn't been subject to a court case is in some hazy gray area is silly. Actually, the jury is not out because there's no case.

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Posted by Even more legal of an eagle
a resident of Old Palo Alto
on Dec 9, 2017 at 1:14 pm

Legal Seagull --

Does Collins want to turn down anonymous donations across the board? It seems like you really understand his position. I know Ken asked that during the meeting but I didn't hear Todd's answer. Did you?

1 person likes this
Posted by PiE donations can be anonymous, why not District donations
a resident of Duveneck/St. Francis
on Dec 9, 2017 at 1:24 pm

PiE donations can be anonymous, why not District donations is a registered user.

If people can donate to PiE anonymously, how is that different than donating to the District?

Like this comment
Posted by Here's why
a resident of Adobe-Meadow
on Dec 9, 2017 at 1:40 pm

Pie is a private foundation, the district is a public agency; the brown act and the public record act don't apply to pie. I don't know if Pie takes donations where they do not know the identity of the donor or not. Stanford for instance says they do not. Note that reporting a gift from an anonymous donor (ie you withhold the donor's name) is different from taking a gift where you don't know who the donor is.

Like this comment
Posted by Parent
a resident of Old Palo Alto
on Dec 9, 2017 at 1:51 pm

@hoover parent, would your prefer to call it a "scheme"? How about a "plot"? Dauber seemed to indicate that no lawyer had reviewed the policy (he offered to have it reviewed), so I'm not sure if it is legal or not. That is interesting by itself, that the committee spent a year on this, came up with something pretty novel, but never even asked a lawyer to look it over. Sounds like they haven't learned much from their title ix experience.

4 people like this
Posted by Hoover parent
a resident of Hoover School
on Dec 9, 2017 at 3:00 pm

I'd prefer the word "policy" since that's what it is. As pointed out already this policy seems completely compliant with the Brown Act. No one has made any actual case that it isn't.
I would like to know where Collins is on anonymous donations. If that's what this is really about I would like to know.

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