The following letter describes a Brown Act
violation in 2008 by the VUSD board.
October 17, 2008
Board of Trustees
Re: Cure and Correct California Ralph M.
Brown Act Violations.
Dear Chairman Gibson,
This letter is to call your attention to what I
believe were substantial violations of central
provisions of the Ralph M. Brown Act.
The natures of the violations are as follows:
On October 16, 2008 I attended a meeting of
the Vista Unified School District Board of
Trustees “VUSD.” I pulled a card to speak
on Agenda Action Item 13.
(Item 13 was Student Support Services,
Section D. Approve Guajome Park Academy’
s Staff and Board Recommendations for
Expulsion of Cases Numbered W-14-
2008/09 and W-18-2—8/09 & W-19-
When Chairman Gibson called my name to
the podium, I began to speak for about 60
seconds before Board Member David
Hubbard abruptly interrupted me. He asked
what my comment had to do with expulsion.
I said, that I was commenting on expulsions.
Before Board Member Hubbard abruptly
interrupted me I had just read VUSD’S
Board Policy No. 5013 “Suspension and
Expulsions,” Section (3), which read: “It is
the intent of the Board of Education that its
policies and regulations be consistent with
current law. Any part of this policy, which is
not consistent with current law, shall be
I asked whether VUSD knew if Guajome
Park Academy had policies for expulsions?
If they knew what those policies were? If the
policies were allied with California law and If
Guajome Park Academy had a legitimate
Board Member Hubbard asked what does
this have to do with Section “C.” and that
Section C had to do with Readmission of
Students who have been expelled from other
school districts? Board Member Hubbard
told me that I had pulled a card for “Section
C.” Board Member Hubbard said we have
already ratified the item and you cannot
speak on it any more. President of the
Board Gibson agreed. They both insisted
that I had pulled the card for Section C.
If in fact I had pulled the card for Section C
then why would the VUSD Board ratify
Section D before Section C?
I have addressed the issue of VUSD Board
Member David Hubbard rude and abrupt
interruptions, when I have attempted to
speak on the Vista Unified School District
Board of Trustees Meetings for many years.
I have addressed this same issue with
regulatory agencies. Board Member David
Hubbard has continued this illegal conduct
with complete disregard of California State
Open Meeting Laws. David Hubbard as
Board Member and attorney has given VUSD
legal advice that is contrary to the law for
over twelve years. David Hubbard conspired
with former superintendent Dave Cowles to
defraud the public, students and parents of
the Vista Unified School District; with
distorted legal advised and
recommendations that have bankrupt the
Vista Unified School District for over twelve
The Vista Unified School Board Members
need to be reminded that the people of the
state of California have the right to criticize
the policies, procedures, programs, or
services of the agency, or of the acts or
omissions of the legislative body. Baca v.
Moreno Valley Unified School District (1996)
936 F.Supp. 719.
“Thus, under the California Constitution,
District’s Board may not censor speech by
prohibiting citizens from speaking, even if
their speech is, or may be, defamatory.” (at
The action to censor my First Amendment
Right to Speak by this Board not only
violates the State Constitution, but it is also
contrary to the Brown Act. This is primary the
reason why David Hubbard and the entire
Vista Unified School District Board of
Trustees has and will continue to have a
Permanent Injunction (See also Leventhal v.
Vista Unified School District (1997) 973 F.
The Ralph M. Brown Act (Government Code
§54950 et seq.) provides that the public has
a right to address the VUSD School Board
on any matter on the agenda of the VUSD
School Board Meeting before action is taken
on that item (Government Code §54954.3),
(Section C comes before Section D) and to
also address the VUSD School Board on
any subject within the subject matter
jurisdiction of the VUSD School Board
Meetings that is, on subjects for which the
VUSD School Board has some ability to take
action (Government Code §54954.3).
The censoring of my First Amendment Right
to Speak is a violation of my right publicly to
share my criticisms of school board policies
with the VUSD Board of Trustees and
concerned community members pursuant to
California Government Code section
54954.3, a code section found in California's
open meeting law, commonly known as the
Ralph M Brown Act). Cal.Govt.Code, §§
54950 et seq.
As I have informed you before on many
letters sent to the entire Vista Unified School
District Board of Trustees:
The Vista Unified School District has
constantly been informed by community
members of its pervasive Brown Act
violations and continues to ignore the public’
s request for open government,
transparency and accountability. If by any
chance you did not read the prior letters, I
will repeat once again the Vista Unified
School District and every Member of the
Board of Trustees has a permanent
injunction in respect to Brown Act violations
in the United States Court for the Southern
District of California in the universally known
and quoted Leventhal v. Vista Unified School
District., School Board President David
Hubbard, in his Official Capacity, et al.,
Defendants. 973 F. Supp. 951 (1997)
Therefore, pursuant to provisions
(Government Code Section 54960.1.), I
demand that the Vista Unified School District
Board of Trustees cure and correct the
illegally taken actions mentioned above.
As a consequence, I am giving you a final
formal written demand letter (§ 54960.1(c)
(1); County of Del Norte v. City of Crescent
City (1999) 71 Cal.App.4th 965, 978; Bell v.
Vista Unified School Dist.(2000) 82 Cal.App.
4th 672, 684.)
I suggest that you take the advice from a true
professional instead of Board Member
Hubbard. Including a crash course on the
California Ralph M. Brown Act for all the
members of the Vista Unified School District
Board of Trustees panel. So as to enhance
your further involvement as representatives
of the California Ralph Brown Act.
Subsequently, that you may develop a
deeper understanding of members of the
public rights to attend and participate in
public meetings that should be open for
public participation for all members of the
community. [Government Code Section
A crash course on open and public meeting
law as based on the Ralph M. Brown Act for
all VUSD Members of the Board of Trustees
and VUSD subcommittees. [Government
Code Section 54950., 54950.5. 54952.] May I
suggest at minimally that VUSD
subcommittee panel members be provided
with a current copy of the Brown Act
[Government Code Section 54952.7]. Due to
the multiple roles the panel members hold
with other VUSD subcommittee
assignments and other public agencies,
perhaps a workshop presentation by Terry
Franke from The Californians Aware. 2218
Homewood Way Carmichael, CA 95608
Phone: 916-487-7000 Fax: 916-487-7999
would better serve your efforts of compliance
with the law as well as to ensure and protect
the community's rights to bring forward
public criticism of policies, procedures,
programs, or services. The Californians
Aware organization is considered the
experts in the area of open meeting laws,
public record law, and First Amendment.
As Government Code section 54950
"Declaration of Intent" indicates:
"The people of the state (Vista Unified
School District Board of Trustees) do not
yield their sovereignty to the agencies, which
serve them. The people, in delegating
authority, do not give their public servants
the right to decide what is good for the
people to know and what is not good for
them to know. The people insist on
informed so that they may retain control over
the instruments they have created."
As provided by Section 54960.1 you have 30
days from the receipt of this demand to
either cure or correct the challenged actions
or inform me of your decision not to do so. If
you fail to cure or correct as demanded,
such inaction may leave me no recourse but
to seek a judicial invalidation of the
challenged actions pursuant to Section
54960.1, in which case I would seek the
award of court costs and reasonable
attorney fees pursuant to Section 54960.5.
More VUSD links
California's Brown Act--regulating notice and conduct of
public entity board meetings
2008 Violation of Brown
Act by Vista Unified School
Leventhal v. Vista Unified School
Dist., 973 F. Supp. 951 (1997)
The judge in this case put VUSD under a permanent
"Defendants ...are hereby permanently
enjoined and restrained from
enforcing the prohibitions on any
"criticism, complaint or charge
against an employee of the District"
contained in Vista Unified School
District Bylaw No. 9002, §§ B and C."
Nancy LEVENTHAL; Margaret C. O'Neill, Plaintiffs,
VISTA UNIFIED SCHOOL DISTRICT; School Board President
David Hubbard, in his
Official Capacity, et al., Defendants.
United States District Court,
MOSKOWITZ, District Judge.
This matter comes before the Court on Plaintiffs' motion
for PERMANENT INJUNCTION ... the Court adopts its order
of June 18,1997 and applies that order to Defendant David
Hubbard and to the new Defendants--Jenny Vervynck,
Lance Vollmer, Linda Rhoades and Barbara Donovan, sued
in their official capacity ...
Plaintiffs challenge School Board Bylaw No. 9002 (the
--the First and Fourteenth Amendments to the United
--Article I, §§ 2, 3 and 7 of the California Constitution,
--and the state's Brown Act, Cal. Gov't Code §§ 54954.3 and
seeking declaratory and injunctive relief.
The Bylaw permits the Board President to "terminate a
presenter's address" at an open Board meeting "if a
presenter persists, after a warning, to engage in improper
conduct or remarks."
The Bylaw acknowledges *954 that state law grants the
public the right "to directly address the Board on items of
interest to the public that are within the subject matter
jurisdiction of the Board," but limits those rights "with
respect to presenting a complaint or charge against an
employee of the District." Under the Bylaw, "[c]omplaints
against an individual employee will not be heard at open
Board meetings unless the individual employee consents."
... Because she had concerns over Gyves's fiscal
administration of the District, his supervisory skills, and
his prior performance as superintendent of another school
district, Leventhal also questioned aloud whether the
Board had adequately investigated Gyves prior to hiring
As soon as Leventhal mentioned Gyves's qualifications,
Board President Hubbard interrupted her, stated that
Leventhal was "moving into a personnel issue," and,
pursuant to the Bylaw,
informed her that her criticisms could not be made in a
public Board meeting. According to Leventhal,
after Hubbard's interruption, she
voluntarily--terminated [her] comments
about the hiring of Dr. Gyves, rather than
face the indignity of further censorship and
disruption of the proceedings...."
... Leventhal then spoke, remarking that "it is totally
inappropriate to have a community member who is using
their free speech rights to speak ... lectured and have
judgments made about them publicly."
Hubbard responded to Leventhal, explaining that while
criticisms of the Board and the District were permissible,
"I'm not going to allow this to turn into a
situation where members of the public
engage board members in personal
attacks.... [I]f that's an abridgment of First
Amendment rights, then I'll wait for a court
of law to tell me that." ..........
Permanent injunction against Vista
Unified School District re free speech
One of the problems with Brown Act
enforcement in schools is that the
press too often keeps quiet about
deeply serious violations.
Shamefully, the reporters who keep
secrets have the nerve to hop up on
a soapbox and write stories like the
The story below was written by
Marsha Sutton who recently
excoriated the superintendent of Del
Mar School District for providing
records in response to a public
records request for invoices from
lawyer Dan Shinoff, but in this story
Marsha makes a big deal out of a
notice being thirteen minutes late in
For years Sutton has refused to
write about the vast number of
school secrets that her pal Shinoff
keeps, including the mysterious
Bate-stamped documents in my
case which Stutz law firm has
refused for years to produce, and
now claims to have lost. The most
courageous education reporting in
San Diego is being done by Voice of
San Diego, which has started to
reveal the truth about the
relationship between school
attorney Dan Shinoff and some
See Marsha's interview with Dan
Another Brown Act
blunder for SD Unified
By Marsha Sutton, SDNN
June 15, 2010
Even after admitting that the Brown Act had
been violated before, they’ve done it again.
The notice for the special closed session
meeting for San Diego Unified School District’
s Board of Education, now scheduled for
Wed., June 16 at 6:30 p.m., was sent out
Tuesday at 6:43 p.m. – less than 24 hours in
At least the district is doing better this time –
only 13 minutes late. Here is the notice:
—– Original Message —–
From: Viorato Josefina
To: undisclosed recipients
Sent: Tuesday, June 15, 2010 6:43 PM
Subject: Notice and Call of Special Meeting,
June 16, 2010, 6:30 pm
PLEASE NOTE: Notice and Call of Special
Closed Session Meeting—Wednesday, June
16, 2010 at 6:30 p.m., Room 2249, regarding
appointment/employment of superintendent.
Confidential Administrative Assistant II
4100 Normal Street, Room 2231
San Diego, CA 92103
Last week, in two separate violations, the
district was nearly six hours late – distributing
the notice around 4 p.m. for a meeting
scheduled for 10 a.m. the next morning. And
the second violation came the same day –
notifying the public at 7:23 p.m. for a 4 p.m.
meeting the following day.
The Brown Act clearly states that there needs
to be 24 hours’ notice for special meetings,
and SDUSD general counsel Mark Bresee
even concurred after being called on it before.
And yet here we are again, less than two
weeks later, with the same violation.
Does anyone even care about following the
law at the San Diego Unified School District?
Is it too much to ask that the folks in charge
do slightly more than thumb their noses at
these relatively minor constraints, giving
hardly more than a passing nod at the public’
s right to know?
Some may say it’s making a mountain out of
a molehill – what’s a few minutes among
I’m inclined to agree in some ways. Thirteen
minutes one way or the other does not an
issue make, in and of itself.
But what rankles is that this repeated pattern
of complete disregard for the law, even in the
most minor of matters, portends a much
larger problem with rules and legalities. If it’s
so acceptable to ignore legislation that is
easy to follow, how can the public have any
assurance that proper behavior is insisted
upon in matters less visible and of much
This new meeting was called because the
board wasn’t prepared to announce its three
final candidates for superintendent when it
said it would, even though the district has
been announcing for a week that the three
finalists would be named on June 15.
Apparently, the board just wasn’t quite ready.
But that’s another issue entirely – and one
worthy of its own critical examination. I’m still
stuck on the process and seeing that it’s
Since the legislation has no teeth, apparently
public agencies like the San Diego Unified
School District feel they can get away with
breaking the law – until someone in some
position of authority is willing to make an
issue of it.
This is a matter of ethics and integrity – and
with San Diego Unified we’re not seeing a
whole lot of either of late.
... in the March 20, 1997 Board meeting...According to
Bristol, Gyves denied that he had endorsed the proposal,
"attack[ing]" Bristol's credibility and
referring to her remarks as "bizarre" and
"about typical of the accuracy of your
statements historically." Bristol states that
Hubbard, the Board President, made no
effort to restrain Gyves's comments,
"despite the fact that Mr. Hubbard has
repeatedly silenced several members of
the public who have attempted to criticize
Dr. Gyves and various Board members at
recent Board meetings."
Bristol concludes, "Based on Mr. Hubbard's continuing
enforcement of Bylaw No. 9002, I now refrain from
openly at public Board meetings about my concerns and
criticisms regarding the District Superintendent's
qualifications and performance."...
III. Ban on criticism of employees in open
Bylaw No. 9002 §§ B and C  Plaintiffs' primary claims
challenge the Bylaw's restrictions on raising
"complaints" or "charges" against District employees at
open Board meetings. [FN4] Bylaw, §§ B & C.
As explained below, the Court finds the
criticism provisions to be violative of core
First Amendment values...
Because it concerns the government's ability to limit
private expression in a public
context, this case is governed by the public forum
Although the doctrine's roots
can be traced back to dicta in the Supreme Court's
decision in Hague v. CIO, 307 U.S.
496, 515, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423 (1939), the
modern categorical approach
began with Perry Education Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d
In Perry, the Court identified three distinct
types of fora:
first, "traditional" public fora--"places which
by long tradition or government fiat have
been devoted to assembly and debate;"
second, "limited" public fora-- "public
property which the State has opened for use
by the public as a place for expressive
third, "nonpublic" fora--property not
dedicated in any significant way to free or
Under this categorical system, the state's ability to
regulate speech depends on the nature of the forum. The
government's power to restrict expression in traditional
public fora, the Perry Court explained, is extremely
limited: "reasonable time, place and manner
regulations are permissible, and a content- *957 based
prohibition must be narrowly
drawn to effectuate a compelling state interest."
The Court imposed similar restraints on speech in limited
public fora: "Although a State is not required to
indefinitely retain the open character of the facility, as
long as it does so it is bound by the same standards as
apply in a traditional public forum." Id. In nonpublic fora,
the government may restrict expression only if the
regulation is reasonable and viewpoint-neutral.
...the maintenance of the opportunity for
free political discussion to the end that
government may be responsive to the will
of the people and that changes may be
obtained by lawful means, an opportunity
essential to the security of the Republic, is
fundamental principle of our constitutional
system. [I]t is a prized American privilege to
speak one's mind, although not always
with perfect good taste, on all public
and this opportunity is to be afforded for
vigorous advocacy no less than abstract
...Defendants contend that these concerns are
outweighed by the District's interest in
protecting the privacy and property rights of its
 Before examining the Defendants'
contentions, it is important to remember
if the Brown Act sanctioned the Bylaw,
First Amendment speech guarantees
trump the statute.
It is no defense to suggest that since the Brown Act
created the Board
meetings, the Brown Act can also authorize
unconstitutional limitations on those
The essence of the public forum doctrine is the notion
that although the
government need not devote its property to expressive
activity, once it does it is bound by
the strictures of the First Amendment.
 That said, the Brown Act provides little
support for the District's position.
Although §54957 allows public employees to demand that
a governing body air complaints about the employee in
public, it does not grant the employees the right to force
the conflict behind closed doors.
Similarly, while the Brown Act permits governing bodies
to hold closed
sessions about personnel matters, nowhere does it grant
those bodies the exceedingly
broader authority to silence public speech that may also
touch upon related employment
issues. As noted above, the sections of the Brown Act
and the Education Code that
require the Board to hold public meetings grant the public
a right to speak "on any item
of interest to the public ... that is within the subject matter
jurisdiction" *959 of the
Board, without exception. Cal. Gov't Code § 54954.3(a)
(emphasis added); Cal.
Educ.Code § 35145.5 (emphasis added).
The preamble to the Brown Act sets forth the primary
purposes of the Act as a whole:
The people of this state do not yield their sovereignty to
the agencies which serve them.
The people, in delegating authority, do not
give their public servants their right to
what is good for the people to know and
what is not good for them to know. The
insist on remaining informed so that they
may retain control over the instruments
Cal. Gov't Code § 54950. In San Diego Union v. City Council,
146 Cal.App.3d 947, 954,
196 Cal.Rptr. 45 (1983), the court balanced the same two
Brown Act provisions (the
"personnel exception" of § 54957 and the "sunshine law"
of § 54953) apparently in
conflict in the instant case.
Citing the statute's preamble, the court concluded that it
"must construe the 'personnel exception'
narrowly and the 'sunshine law' liberally in
favor of openness."
The court explained, "Public visibility breeds
public awareness which in turn fosters public activism
politically and subtly encouraging the governmental entity
to permit public participation in the discussion process."
Thus, while the Brown Act authorizes a school board to
discuss personnel matters in closed session, it does not
preclude the public from raising such matters at open
Board meetings. Once the matter has surfaced in public,
the Board and the employee still may
adjudicate the matter in closed session.
While the Court recognizes the privacy
and property interests of the District's
employees, the District's asserted interests
pale in comparison to the expressive
Alternatively, the Bylaw fails even under the more
deferential standard of
review applied to speech restrictions in nonpublic fora.
As mentioned above, regulations in nonpublic fora will
survive a constitutional challenge only if they are
"reasonable in light of the purpose served by the forum
and are viewpoint neutral."
...As the Supreme Court explained in New York Times v.
Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964):
The maintenance of the opportunity for free political
discussion to the end that
government may be responsive to the will of the people
and that changes may be
obtained by lawful means, an opportunity essential to the
security of the Republic, is a
fundamental principle of our constitutional system. [I]t is
a prized American privilege to
speak one's mind, although not always with perfect good
taste, on all public institutions,
and this opportunity is to be afforded for vigorous
advocacy no less than abstract
discussion. Id. at 269, 84 S.Ct. at 720 (internal quotations
and citations omitted).
...The Court declares that the
prohibitions on any criticism,
"complaint or charge against an
employee of the District"
contained in Vista Unified School
District Bylaw No. 9002, §§ B and C,
Plaintiffs' rights secured under the
First and Fourteenth Amendments to
the United States
Defendants David Hubbard, Jenny Vervynck,
Lance Vollmer, Linda
Rhoades and Barbara Donovan, acting in their
official capacity as members of the School
Board of the Vista Unified School District, and
their agents, successors... and employees who
have received notice of this order, are
hereby permanently enjoined and
enforcing the prohibitions on any
criticism, "complaint or charge
against an employee ofthe District"
contained in Vista Unified School
District Bylaw No. 9002, §§ B and C...
Susan J Boyle
Boyle and Jansen
501 West Broadway
San Diego, CA 92101
ATTORNEY TO BE NOTICED representing
Vista Unified School District
Jordan Charles Budd
ACLU Foundation of San Diego and Imperial
450 B Street
San Diego, CA 92101-8004
ATTORNEY TO BE NOTICED representing
Margaret C ONeill
Brown Act "expert"
causes problems with
[Maura Larkins' note: It seems
that most lawyers who advertise
themselves as "Brown Act
experts" are actually offering the
service of being able to help
officials get away with Brown Act
Town unhappy with report
Wasco citizens pack council meeting on
grand jury statement
by Felix Doligosa, Jr., Californian staff
WASCO -- Residents yelled "the city is
unhappy" in a packed City Council meeting
Tuesday night as discussion turned to a
grand jury report that accuses council
members and the mayor of having too many
"It's been quite a rocky two weeks and it's
getting to a point where we need a
resolution," said Tilo Cortez Jr., vice mayor
and council member for the city.
A grand jury report stated that the council
has "far too many 'special meetings'" that
leave a perception the city does not want
On Jan. 24, the mayor, Danny Espitia, and
one or two council members met to vote on
the appointment of an assistant city
manager, fire the city attorney and hire a new
law firm, according to the grand jury report.
The meeting was announced Jan. 23,
according to the report.
The grand jury report also said Councilman
and former Mayor Fred West Jr. met with the
former finance director to discuss his taking
on the job as interim city manager. An
unsigned contract showed up on the former
director's desk, according to the grand jury.
The grand jury report recommends that the
City Council get additional training on the
Ralph M. Brown Act. The state law allows
very limited closed-door meetings
concerning public business, according to
The report also recommended that Wasco
residents get more involved in City Council
meetings, the council stop having special
meetings unless it is an emergency and that
Espitia should stop voting until the city
receives an opinion from the Attorney
General of California.
Espitia said he does not want to forward the
report to the attorney general because there
are lies in it.
"The grand jury was misinformed," he said.
"It's wrong. They never interviewed me."
The grand jury said in the report that it
interviewed the mayor.
When Cortez asked if the report was telling
the truth, Espitia replied, "So we can agree
the grand jury can make another mistake."
Dozens of citizens filled the seats and some
stood in the aisles as they argued with
"This is just not right," said Wasco resident
has made about $83,000 in four months as
the city attorney, said Councilwoman
Cherylee Wegman. The grand jury report
said Garcia makes about four to five times
more than the previous attorney.
Garcia said he would be happy to have an
evaluation of his work another time.
"We have to talk about what's on the
agenda," said Wegman who tried to direct
discussion toward the grand jury report. "It's
After hearing pleas from the audience, the
City Council voted to postpone discussion of
the alleged Brown Act violations and the
hiring of Garcia until a public meeting on
Bakersfield California, June 20, 2007
Secrecy v. Free Speech
BELL v. VISTA UNIFIED SCHOOL
Plaintiff and Respondent,
VISTA UNIFIED SCHOOL DISTRICT et al.,
Defendants and Appellants.
Court of Appeal, Fourth District, Division 1,
-- June 27, 2000
Stutz, Gallagher, Artiano, Shinoff & Holtz,
Daniel R. Shinoff, Jack M. Sleeth, Jr., San
Diego, and Paul V. Carelli IV, for Defendants
Robert P. Ottilie, San Diego, for Plaintiff and
Vista Unified School District, Rancho Buena Vista
High School (RBV) Principal Alan Johnson, RBV Athletic
Director Ric Bethel, and Associate Superintendent Peter
McHugh (collectively VUSD) appeal a judgment
mandating it to nullify its termination of RBV
football coach Craig Bell, because of a notice
violation of the Ralph M. Brown Act (Gov. Code,
§ 54950 et seq.; 1 the Brown Act), and awarding him
$157,674 in attorney fees and costs.'
...FACTUAL AND PROCEDURAL BACKGROUND
By the Fall 1997, Bell had been a VUSD employee for 13
years and the only football coach in RBV's 11-year history.
As a tenured instructor, his coaching assignment was
separate and renewed annually each fiscal year. That
assignment had been renewed on July 1, 1997, and was to
expire on June 30, 1998.
In the spring 1997, Robert Ryan, the father of
Australian high school student John, asked
Bell to help arrange his son's transfer to Vista
to attend school and play American football.
Bell advised Ryan he had a “no cut” policy, but any decision
regarding eligibility would be made by the California
Interscholastic Federation (CIF), a voluntary association
which governs eligibility for interscholastic competition.
Bell immediately reported Ryan's telephone call to Athletic
Director Bethel and directed Ryan to the counseling office
for processing the transfer. Ryan later asked Bell to obtain
a visa for John to enter the United States, an Immigration
and Naturalization Service (INS) form I-20. In turn, Bell
contacted Bethel and VUSD Associate Superintendent Peter
McHugh who told him VUSD did not provide the form; made
inquiries on Bell's behalf; and later advised him where he
could obtain it. A third party obtained the form and Bell had
a Vista counselor, Frank Donez, sign it. Bell's assistant
coach offered to take John into his home for the year at a
After John's arrival and registration, RBV
Principal Johnson wrote the CIF requesting
his athletic eligibility. CIF Commissioner Jan
Jessop met with John. Upon learning his
age, his prior education and Bell's
involvement in his transfer, on September 9
Jessop denied the request for eligibility on
the grounds he was a “fifth year” senior and a
...On October 2, she further ruled Bell had
violated CIF's undue influence rule, John was
ineligible for one year, and RBV was placed on
one-year athletic probation with the
suggestion VUSD consider disciplinary action
against involved employees.
John appealed the decision to the CIF
Appellate Panel, which following hearings on
October 13, upheld the undue influence
ruling, but reduced his ineligibility to 13
days. The panel placed the school's entire
athletic program on probation for one year,
suspended its membership in the CIF for the
year, and ordered VUSD to review the matter
and take whatever action it deemed
appropriate regarding Bell. On October 16,
the VUSD Board of Trustees (the Board) held a
special closed session Board meeting to
consider action to take in response to the CIF
probation. ...The court further found VUSD
neither cured nor corrected its failure to
provide Bell notice of a meeting to discuss his
termination as football coach or his right to
request an open meeting.
The court then ruled that pursuant to section 54960.1,
subdivision (a), mandamus was a proper remedy to
declare the action taken at the October 16 meeting was
null and void. The court directed VUSD to nullify its prior
decision terminating Bell as RBV head football coach,
remove any mention of termination from his personnel file,
not communicate in the future he was ever terminated, and
permanently enjoined VUSD, its agents and employees
from attempting to enforce the October 16 termination
Finally, the court concluded that Bell had timely requested
VUSD to cure or correct the statutorily deficient notice
and that his filing suit before the expiration of the 30-day
period to correct a Brown Act violation was not prejudicial
and did not bar his mandamus action.
The court ruled Bell was entitled to reasonable attorney fees
and costs under section 54960.5, subject to a cost
memorandum and motion for attorney fees. The matter
was then heard on June 19, after which the court took the
matter under submission and confirmed its telephonic
ruling with slight modification. Judgment was filed on
August 14, incorporating an award for attorney fees and
costs in the sum of $157,674.81 (costs of $9,812.81 and
fees of $147,862.00). VUSD appealed, but the appeal was
dismissed without prejudice for violating the one final
judgment rule. The remaining tort actions went to trial in
March 1999, but the parties resolved them before its
completion. VUSD paid Bell $125,000 and gave him a
paid leave of absence during the second semester of the
1999/2000 school year to settle his remaining claims.
VUSD then timely noticed this appeal on June 22.
THE BROWN ACT WAS VIOLATED
VUSD contends the closed meeting did not
violate the Brown Act because Bell was only entitled
to a 24-hour written notice of the meeting under
section 54957 if the Board intended to consider
complaints or charges brought against him by
another person or employee. Here, VUSD asserts
the Board did not do so, but rather it met to
consider whether to discipline an employee after an
adverse finding or decision by a separate
administrative body (CIF) and that action did not
constitute a complaint or charge under the Brown
Act. Bell responds that when Superintendent Gary
Olson and McHugh, who also served as CIF board
chair, presented the CIF's finding of undue
influence as a basis for disciplining Bell to the
Board it evolved into a charge or complaint
presented by a fellow employee or another person,
requiring notice of the meeting under section
54957. As we shall explain, we agree.
The Brown Act's requirement that public meetings
be open ensures the public's right to attend
meetings of local legislative bodies, subject to
statutory exceptions. (Freedom Newspapers, Inc.
v. Orange County Employees Retirement System
(1993) 6 Cal.4th 821, 825, 25 Cal.Rptr.2d 148, 863
P.2d 218; Fischer v. Los Angeles Unified School
Dist. (1999) 70 Cal.App.4th 87, 95, 82 Cal.Rptr.2d
452.) It established the governing mandate that
“meetings of the legislative body of a local agency
shall be open and public, and all persons shall be
permitted to attend any meeting of the legislative
body of the local agency, except as otherwise
provided in this chapter.” (§ 54953, subd. (a).)
The Brown Act was designed to facilitate public
participation in local governmental decisions and to
curb misuse of the democratic process by secret
legislation. (Boyle v. City of Redondo Beach
(1999) 70 Cal.App.4th 1109, 1116, 83 Cal.Rptr.2d
164; Fischer v. Los Angeles Unified School Dist.,
supra, 70 Cal.App.4th at p. 95, 82 Cal.Rptr.2d 452.)
...Even if Bell conferred a significant benefit on the
general public by protecting its interest in having
access to VUSD meetings, reaffirming procedural
due process protections, exposing serious
problems at RBV and protecting the rights of his
fellow employees, the primary focus of his litigation
was personal, that is his reinstatement and quest
for compensatory damages. In this context, the
Brown Act violation was simply incidental to his
personal and pecuniary interests in the matter. To
render apportionment moot, he must establish the
cost of his victory transcended his personal
interests such that the necessity for pursuing the
lawsuit placed a burden on him out of proportion to
his individual stake in the matter. However, he
was statutorily entitled to attorney fees and costs
arising from the Brown Act violation under section
54960.5. He had a financial incentive in bringing
the lawsuit. His litigation goal was always to obtain
reinstatement and compensatory damages. He
accomplished that goal by being reinstated, having
the discipline rescinded and later recovering more
than $125,000 in settlement. Consequently, this is
not a case where Bell has shown his expenses in
bringing the suit are disproportionate to his
personal stake in the outcome of litigation, but
rather one where the enforcement of the public
interest is merely incidental to the obtaining of
personal goals. (See California Common Cause v.
Duffy (1987) 200 Cal.App.3d 730, 750-751, 246
Cal.Rptr. 285.) 7
Finally, VUSD challenges the trial court's award
of costs, asserting that approximately $4,200 of
them are either explicitly or impliedly prohibited by
Code of Civil Procedure section 1033.5 (i.e.,
photocopy, postage, telephone, facsimile and
“attorney services” charges). Additionally, it
challenges the costs incurred for depositions of
persons unrelated to the Brown Act issue. Where
a statute authorizes an award of fees and costs, but
is silent as to which costs are to be awarded, Code
of Civil Procedure section 1033.5 provides the
courts with guidance as to those costs that may or
may not be recovered in a civil action. (See Davis
v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 441-445,
71 Cal.Rptr.2d 452, 950 P.2d 567; Page v.
Something Weird Video (C.D.Cal.1996) 960 F.
Supp. 1438, 1447.) Bell has not offered any
reason nor can we perceive of one why that
statutory guidance should not govern here under
the circumstances. Accordingly, on remand, the
trial court is directed to award only allowable costs
after reasonable apportionment. (See e.g., Ladas
v. Cal. State Auto. Assn. (1993) 19 Cal.App.4th
761, 773-775, 23 Cal.Rptr.2d 810.) 8
The judgment is reversed as to the attorney fees
and costs award and the matter is remanded to the
trial court to recalculate the award following
reasonable apportionment consistent with this
opinion. In all other respects, the judgment is
affirmed. Each party to bear their own costs on
|San Diego Education Report
In many cases, attorneys who are "experts in the Brown Act" are apparently hired by schools and
cities to argue against the law rather than to advise public entities to follow the law. In the
following cases, the California Court of Appeal and federal district court found the Brown Act
experts to be wrong about the Brown Act.
Vista Unified violated Brown Act
when it failed to give notice that it
wanted to fire a coach
Robert Mahlowitz Presents
“Dragged Into Closed
Oct. 10, 2012
Attorney Robert Mahlowitz will present
“Dragged Into Closed Session: The Ins and
Outs of California’s Brown Act & Personnel
Discussions” at the Fall Training Institute for
the Association of Chief Human Resource
Officers/Equal Employment Officers
(ACHRO/EEO). The event will be held at
Harrah’s Lake Tahoe October 24-26.
HR Professionals are often called upon to
appear in closed session with their Boards
to discuss personnel issues. Limited
budgets may restrict access to legal counsel
when HR Administrators have concerns
about whether matters have been properly
noticed, what notice has been provided to an
employee and what to do when the employee
wants a public airing of the discussion.
Concerns also arise about potential
personal liability for violation of the Brown Act.
For 30 years, Stutz Artiano has served as
legal counsel to community college and
school districts in California and we will
share insights to empower senior
HR/EEO professionals for those
times when the Brown Act
--from Stutz web site
Invasion of the Brown
Stutz law firm advises you
to call them when "the
Brown Act invades":
Brown Act Enforcement