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Saturday, December 5, 2015

Smoking Gun Video Reveals School Board President Lied to the People of Emeryville

Brown Act Scandal Smoking Gun

Affeldt Caught Contradicting Himself

Conscious Violation, Not a "Mistake"

A smoking gun video recording of an Emery School Board 'retreat' last summer has surfaced showing the school district's attorney teaching the Board members about the Brown Act open-meetings law that directly contradicts the Board President's and the Superintendent's recent claims of ignorance of the law after a colleague caught three Board members privately meeting behind closed doors before a regular Board meeting November 18th, 2015.  The video of the September 13th 2014 Board retreat makes it clear the Board understands that a private meeting with three of them in attendance would be illegal,  exactly what they did this last November and then denied under questioning from a fellow Board member that the meeting was illegal.
Emery School Board President
John Affeldt

After the Tattler first broke the story and the greater Bay Area press helped turn it into a major public scandal, Board President John Affeldt and Schools Superintendent John Rubio have consequently admitted that, yes they had indeed violated the Brown Act with the private meeting, a "technical" violation but it was a "mistake" based on them not knowing the law.  Mr Affeldt had originally claimed the fact that one of the three Board members in attendance at the private meeting didn't participate in the discussions, in effect made the meeting legal, something the 2014 video (below) shows he knew to be false when he made that statement.

After Board member Christian Patz made a complaint about the private closed door meeting he witnessed at the November 18th public Board meeting, Mr Affeldt, an attorney,  attacked him and strenuously denied that a quorum of three Board members meeting in private where Board business is being discussed behind closed doors constitutes a Brown Act violation, instead he said it's "completely within the Brown Act and appropriate".
However, the 2014 video shows the entire Board listening to Mr Affeldt agreeing with and reiterating what the District's attorney stated about how it's illegal for three Board members to even be in a private room together when District business is being discussed.  Immediately following that, Superintendent Rubio says that to have meetings with three Board members in private would be unfair to the public because they wouldn't have the ability to participate.

Relevant attendance at the 2014 Board retreat besides Superintendent John Rubio included Board members John Affeldt, Melodi Dice, and Christian Patz.

Smoking Gun Video Table of Contents:

10:55 - 13:57   The District's attorney tells the Board "collective concurrence", or action taken by the Board based on an illegal quorum meeting, is not needed for a Brown Act violation to have occurred, simply a private quorum meeting where Board business is being discussed is a Brown Act violation. 
13:57 - 14:14   The Smoking Gun: Board President Affeldt reiterates and explains to the rest of the Board it's illegal for more than two of them to meet privately where District business is being discussed. 
14:14 - 14:27   Superintendent Rubio adds his view that if more than two Board members were to meet privately to discuss District business, it would be unfair to the public because they would not have an opportunity to participate.   

Video courtesy of the Emeryville Property Owners Association


  1. Anyone that has been paying attention knew Affeldt was lying. As you explained in your first story on this,

    "The Emery Unified School District was the subject of an Alameda County Grand Jury investigation last year for not complying with the Brown Act in conducting meetings of its Citizens' Bond Oversight Committee. The response from EUSD clearly showed the District received legal counsel on this issue, removing doubt that the District is now well versed in proper compliance with the Brown Act's requirements."

    Of course Affeldt knew this was inappropriate. A year ago. When he went into this meeting. When he was sitting in it. When he got caught. And when he played dumb afterward!

    What do they say? It's never the initial wrong-doing that get's you. It's the cover-up. That's what I think here. Knowingly violating the Brown Act is seriously problematic, but lying about it afterwards to cover it up is just beyond the pale. He should resign.

  2. "Cost 3 people their jobs"? A stray comment during the presentation about "technical" Brown Act violations.

    Tip of the hat to Ken Bukowski for making all these videos.

  3. What Anonymous #1 said: "It's never the initial wrong-doing that get's you. It's the cover-up. That's what I think here. Knowingly violating the Brown Act is seriously problematic, but lying about it afterwards to cover it up is just beyond the pale. He should resign." Yes LYING ABOUT IT AFTERWARDS .. IS JUST BEYOND THE PALE. I would add: attacking. Mr. Patz is despicable. And unless Melodi Dice was asleep or she turned off her brain, her bad attitude about the whole affair - a grand play of innocence and attacking Patz - is also despicable.

  4. I agree with the majority of your readers and parents, it's time for Affeldt to step down for the good of the district. At this point it seems he can only do more damage than good, His credibility has been compromised, especially in the eyes of parents. I've talked with several parents and all agree on this.

  5. I disagree. They messed up. Gosh I'd hate to be kicked out of the club every time I screw up. I'd be a lonely boy. We are a small town. These are not big city, big time professional politicians running this stuff. These "people" are you and I. Give them a break. It's not like they are destroying the school or planning to take over the city and hold it for a "one Million Dollar" ransom. I am sure the intent was not nefarious. I am sure that other Emeryville citizens are not immune from making mistakes. A little more community support for the board would go long was to being more effective than lobbing bombs,accusations, and laying in wait to pounce on the next f*#k up. That is rarely useful. They made a dumb mistake. Rubio owned it John will come around. Get over it. Move on. It's better for all of us and all of our children. They have been castigated in the public forum. I say good enough given the charges. Remember these people are working hard for our community. I'd ask the anonymous people here: What are you out actively doing to better our community?

    1. Good point Henry family, about anonymous comments. Remember people, you may comment anonymously here, there's nothing wrong with that but realize not using your name tends to take away from the validity of the point you're trying to raise.

  6. Ron, I appreciate the spirit your comment is offered in and it is exactly right. People, who are giving tremendous amounts of time and energy to make our community better, made a mistake. No one is intentionally violating anything. In my statement at the board meeting last week, which I’ll ask Brian to separately post and circulate, I admitted the mistake and mistaken understanding. It does not better our community or encourage people to volunteer their service to throw out wild accusations of intentional wrong-doing.

    Yes, I’m a lawyer but that doesn’t make me an instant expert in the Brown Act and its nuances. And we are talking about nuances here. I wish I could have instant recall of all the lengthy powerpoint presentations I’ve been a part of from a year or more ago but my brain doesn’t work that way anymore. Even if it did, reviewing this video now shows this stuff is not always intuitive and clear cut. The attorney explains that until a change in law a few years ago, it did not violate the Brown Act for a majority of board members to meet in private to discuss but not decide anything. Now it does. And later, when I asked the attorney if it violated the Brown Act to provide information to a quorum of board members “one-way” and not have a “discussion” about it, as in an email, he said “that would be fine”, meaning, it wouldn’t be a Brown Act violation. It was with that understanding, that Member Merriam would not be participating in a discussion but simply receiving information as a silent observer, that people thought it was permissible for Donn to attend. It’s clear now that that understanding was wrong and we’ll be sure it doesn’t happen again.

    John Affeldt