Search The Tattler

Sunday, November 29, 2015

Video Shows School Board Intransigence on Brown Act Debacle

Eleven Minutes of Shame

News Analysis/Opinion
The following lurid video snippet from the November 18th Emery School Board meeting (below) shows a slow motion train wreak as Board members and the Superintendent try to fend off damning allegations of illegal back room dealing by a Board quorum, a Brown Act violation, made by their colleague Christian Patz as covered by the Tattler (HERE & HERE).  The antics that unfold reveal an irony that comes when arrogance and narcissism sets into a body politic: by meeting privately in the office of the Superintendent the Schools, the Board quorum attempted to get their ducks all in a row with regard to the impending public vote on the new $5 million school bond they wanted to sell but when member Patz dropped the allegations on them in the follow up public meeting, the ducks seem to fly off all akimbo and their answers end up being contradictory.  This is especially true of the way Board President John Affeldt and Superintendent John Rubio answer the allegations: the meeting was not illegal and not wrong says attorney Affeldt while Mr Rubio tacitly admits there is something wrong about a quorum meeting privately. Taken all together, the four of them obviously never planned on having to answer such impudent questions about their illegal actions that the video reveals have happened more than once.

In addition to the unseemly spectacle of the Board President doubling down on denying the accusations from Mr Patz, the video reveals member Melodi Dice as she takes personal offense to the allegations and leaves the room in a huff, only to return later in order to take the vote to sell the bond.  Member Donn Merriam also takes personal offense and provides the quote of the season while Superintendent John Rubio assures us it's rare that the quorum meets illegally but when they do it's done very professionally.

Notable Quotes:
"A third Board member came to observe and that is completely within the Brown Act and appropriate"- Board President John Affeldt

"I am so insulted.  I have a lot going on in my world, we all do.  We do not need additional B.S.  It's not fair for this Board to be accused of B.S.". - Board member Melodi Dice

"For you to say I've violated the Brown Act with no evidence whatsoever, just what you see?" - Board member Donn Merriam

"It is very rare that we do this." - School Superintendent John Rubio

Table of Contents to the Video:

  1. 0 - 3:07   Board member Patz drops his charge
  2. 3:07 - 6:48   President Affeldt angrily doubles down on his insistence the Brown Act wasn't violated
  3. 6:48 - 8:14   Member Dice's histrionics and umbrage, including leaving the room
  4. 8:14 - 9:58   Mr Patz defends himself
  5. 8:58 - 9:27   Superintendent Rubio contradicts President Affeldt
  6. 10:21 - 10:58   Member Merriam, deeply offended, offers up the quote of the year
  7. 10:58 - end   Board approves $5 million bond 3-1 (Patz dissenting)

Video courtesy of Emeryville Property Owners Association


  1. Quote from the Brown Act:

    "Brown Act Definition: A meeting is a gathering of a majority of members to hear or discuss any item of district business or potential business. A meeting under the brown act does not have to include action. It can simply be the exchange of information."

    NOTE: Just "hearing" constitutes a meeting. NOTE: No member need say anything. Just hearing a non-board member speak is sufficient.


    ~Michael Webber

  2. Also:

    "Brown Act Primer: What is a Meeting?

    A. A meeting as defined by the Act includes any “congregation by a majority” of a legislative body at the same time and place to “hear, discuss, or deliberate” on any matter within the jurisdiction of the body.

    As the Attorney General explains: “This definition makes it clear that the body need not take any action in order for a gathering to be defined as a meeting. A gathering is a meeting if a majority of the members of the body merely receive information or discuss their views on an issue. A meeting also covers a body’s deliberations, including the consideration, analysis or debate of an issue, and any vote which may ultimately be taken.”

    Listening to any information related to their legislative job is a MEETING.


    "A meeting does not have to be formally announced, agendized, or convened in order to be subject to the Act. 17"

    Look, this stuff takes a whopping 5 minutes to look up for anyone with a computer, google, and a high school education. You can't say it's not a meeting because the one extra member that adds up to a quorum keeps his or her mouth shut and just listens. The Brown Act is clear on that.

    Who is reporting this to the Alameda County Grand Jury to look into it?

    1. Anyone is entitled to report this to the Alameda County Grand Jury. If someone feels so inclined, please feel free to do so. You may wish to wait a bit to see how this will play out however. The ball is now in the Board's court and they may wish to respond either singly or collectively.

    2. If you look at that definition, it's pretty clear that this is a violation of the Brown Act assuming school business was discussed. It's also clear that the meeting of the City Council majority at the Fight for 15 minimum wage rally back in March was also a violation assuming the minimum wage was discussed.

      When the mayor announces what the results of the upcoming vote on the minimum wage ordinance will be prior to any vote being taken, that's also a pretty dead giveaway. The local businesses discussed this display widely. What was the point for businesses to participate in the minimum wage discussion when the city council had already made and announced what its decision would be?

      The problem is that the Brown Act is nearly unenforceable. No one has EVER been successfully prosecuted for a violation. That's why the City Council and the School Board can and do largely ignore it.

      In this case, all they have to do is send Ethan Patz a notice that they will correct the issue, and that's the end of it.

      If the Brown Act can't stop closed door meetings of the School Board majority and can't prevent the City Council majority from openly meeting at a minimum wage rally when the MWO is under discussion, it is completely useless.

    3. As I said before, the City Attorney ruled the four Council members at the rally you mention was not a Brown Act violation. But by all means if you feel it was improper, you should follow the remedies you have available to you. First step I would say is the Alameda County District Attorney and the Grand Jury. Good luck.

    4. The City Attorney does not rule on Brown Act violations. He attempts to defend the actions of the City Council.

      In any case, he specifically did not 'rule' on whether this meeting of four council members at the minimum wage rally was a violation of the Brown Act.

      The meeting of four members of City Council to advocate for a $15 minimum wage while a minimum wage ordinance is under discussion by the City is almost certainly a violation of the Brown Act.

    5. For every law there is a remedy for redress. If the Brown Act gets violated, there is a redress available for the citizens. First the authorities must be apprised of the alleged violation. As I said, the City Attorney was apprised of the rally for $15 in Berkeley but he said it was not a Brown Act violation. If you disagree, and it sounds as you do, you should seek a higher authority. I say the Alameda County District Attorney is the next best choice but you could write to the Governor or anyone who will listen if you like.

      Also, of course you could do what anybody can always do for any slight they might feel by suing the City. Whatever you choose, good luck and be sure to write us. Any action on this will be reported on by the Tattler.

    6. Your source is incorrect. The City Attorney did not make ANY conclusion with respect to the legality of four City Council members meeting at the minimum wage rally while the MWO was under discussion. It would have been difficult, if not impossible, to conclude it was not a violation.

      Again, the problem is that the Brown Act is toothless (as Ethan Patz is in the process of discovering). The violators simply respond that they will modify their behavior and the problem goes away. Violation can be a misdemeanor, but it is never prosecuted, and the process available to defend against a claim of a Brown Act violation ensure it never will be.

      The Act's only value is as an ethical standard by which the voters can judge their elected officials' interest in playing by the rules.

    7. Sorry, "Christian Patz". Not sure where "Ethan" came from.

    8. Source: the Emeryville City Attorney. It sounds like you know more about the law than our City Attorney. I suggest you start a campaign to have him replaced with you. Again, good luck in your endeavor. Please let us know how it turns out.

  3. This comment has been removed by a blog administrator.

    1. Reckless and unsubstantiated accusation? That's not what Superintendent Rubio says. He now says the accusation from Board member Patz is accurate (see the story late Sunday). Mr Rubio agrees the meeting was illegal. It's in the public interest when a $5 million school bond is being sold under illegal circumstances. If you don't want to know about this, I recommend you not read the Tattler. There are plenty of other news sources that report crime stats and restaurant reviews and other stuff that's not so upsetting. That's where you should go.
      And speaking of time, I've made a life for myself where my time is largely my own. Your paradigm, a life where time is a precious commodity that is owned by people that control you, is not something I would aspire to. I like my copious free time..I don't want your life.
      Thanks for your comment, now back to slaving away for someone else for you. Your time's a wasting...back to the salt mines you go.

    2. Note to readers: The 11:35 comment above was deleted by me because it contained a personal slur against School Board member Patz. I left my reply where I answered charges made by the rude reader. Please refrain from personal slurs and attacks in your comments here unless you want to personally attack me, the editor of the Tattler. Those comments will be allowed.

    3. Brian, while I appreciate your rule against personal attacks, as an elected official, I know they come with the territory. My wife showed me the comment this morning ("Phat" Patz). As I am not a ten year old, I spent more time wondering if it was an insult, as I am fat or a compliment as if I am Phat, Dawg. In addition to being phat and big boned, I am thick skinned. I know I am doing something right when the best people can do is resort ad hominem attacks.

    4. See. Mr. Patz is not completely out of touch and knows that being called "Phat' is akin to be called cool. But I wonder if he realized that even being loosely associated with a known fabricator of stories damages his own credibility ... Dawg?
      The life you've made for yourself? You mean living in an Artist Coop intended for artists? (although the truths you spin are a bit "creative"). The most revealing part of this pathetic series is your personal vendetta. Sad.

    5. 1) Fabricator of stories? Really? Want to back that up? Show a fabrication and you'll get a retraction and an apology.
      2) Don't like my art? Call the art police.
      3) Vendetta? Sure, politicians that dishonor their position will get the harsh end of my blog. Don't like it? Call the art police...or the regular some kind of police.