School Board President Defends Himself, Says Board Member Acted With 'Criminal Intent'

President Affeldt Calls Colleague Board Member Patz a "Criminal"

Board's Hands Were Tied Affeldt Says; 

No Way to Keep Children Away From Danger

The other shoe has dropped in the ongoing Emery School Board fracas begun last Wednesday night after the Board President and the Schools Superintendent disregarded the testimony of 11 teachers regarding the dangerous conditions of the construction site at the new school campus for the run up for the first week of school starting last Thursday.   Board President John Affeldt upped the ante after he released a letter yesterday to parents and interested parties charging his colleague Christian Patz with "criminal intent" as a result of Mr Patz having asked for a postponement for the starting day of the school year to make sure the campus is safe for the children.  In the letter, Mr Affeldt said the Board's hands were tied Wednesday night and that's why he would not allow any such postponement regardless of any safety problems proffered by teachers or Board members.

Mr Affeldt and Superintendent John Rubio heard eleven teachers and two parents, 100% of all testimony taken, cite dangerous conditions at the still-under-construction campus and the speakers implored the School District not to subject the children to the dangers lurking there but the administrator and the president would hear none of it.  Mr Affeldt and Mr Rubio said after conferring by phone in a back room with an attorney the District uses that they had no choice; to postpone the new school opening a few days to give workers a chance to clear out the dangerous conditions would be a Brown Act violation and in no way permissible the two said.  To refute, Board member Patz said that the Board could act to forestall a dangerous situation for the children and that all that need happen would be that the Board declare an emergency and the Brown Act would thus not be violated.  However Mr Affeldt, acting as self appointed unitary executive, would not permit the Board's vote to declare an emergency of any kind.  After taking a straw vote and hearing a majority of Board members desirous of declaring an emergency to postpone the opening of the school, President Affeldt stopped a vote following the proper motion and second procedure from his colleagues.

Readers may remember last November when Board member Patz caught John Affeldt in a Brown Act violation when he hosted an illegal meeting with a quorum of Board members in the Superintendent's office before a Board meeting, an action which also drew the ire of Mr Affeldt after Mr Patz went public about it.  Similar to now, Mr Affeldt denigrated Mr Patz for his assertions but he ended up finally apologizing and admitting fault after the Contra Costa Times got a hold of the story.

John Affeldt's letter, intended for all but written to School Board candidate Ken Bukowski, for his general dispersal to his list serve, is printed below:

Ken-

I have since double-checked with a different attorney used by the district and he confirmed as did our counsel Wednesday night that my actions in refusing to let the board vote on an illegal motion was "absolutely correct" and saved the Board from committing a Brown Act violation.

The Brown Act trumps rules of parliamentary procedure on motions and seconds.  Two outside counsel have both confirmed that it would have been a clear violation of the Brown Act to take action to delay the opening of school without notice to the public and an opportunity for all to weigh in.  The Brown Act requires 24 hours of notice in nearly all "emergency situations".   Only in very rare circumstances, referred to in the Act as a "dire emergency" can a public agency take an action with only an hour's notice.  Those circumstances are defined in the Brown Act as "a crippling disaster, mass destruction, terrorist act or threatened terrorist activity". 

While there were important concerns raised by the 11 teachers and 2 parents who testified to the Board, none of them came anywhere near establishing that the ECCL site—which had been approved for occupancy by numerous inspectors and professional staff—was somehow a dire emergency warranting closure.

While you are correct that the Board votes to determine if a dire emergency exists, it is not a subjective test--that is, whatever the Board says goes--but an objective test which courts would judge against the dire emergency standard of a crippling disaster, mass destruction, terrorist act or threatened terrorist activity.  As the smooth and uneventful first two days of school evidenced, in fact, no such emergency, dire or otherwise, existed.  (Indeed, more than a few parents told me that they were surprised how good the condition of the school was given reports they saw on the Internet.)

What you have proposed, and what Board member Patz' motion sought was to disempower some 500 families in the district and the general public by denying them the notice and opportunity to weigh in on an important board action.  The Brown Act requires at least 24 hours notice for emergencies to prevent just the sort of precipitous action without notice that might have occurred here.  I am proud to have prevented the unlawful disempowerment of the rights of our school community. 

Further, I was reminded by my second conversation with counsel, that intentional violations of the Brown Act are a criminal offense.  It was clear from the meeting that Board member Patz exhibited the criminal intent to purposefully violate the Brown Act, opining cavalierly that the Board should be willing to violate Brown Act notice requirements because anyone who disagreed with closing school to Monday of this week would have no way to undo the action.  Mr. Patz persisted in his intentional disregard of the Brown Act even after being informed that our counsel had said we did not meet the dire emergency standard.  

Appropriate concerns were raised at last week's meeting and appropriate direction was given by the Board to staff to prepare the school for opening.  That was all the Board could legally do that night.  It would have violated the rights of the whole Emeryville community to have taken any action on Wednesday night--not to mention being hugely disruptive and disrespectful of hundreds of families with childcare responsibilities--to have canceled school at 11 p.m. the night before classes were slated to begin. 

As Board Chair, it is my role to decide points of procedure.  I am glad I fulfilled that role and prevented the Board from committing a Brown Act violation.   As the facts played out, it was also the best move for our students as school began on time, safely and without disruption, and our teachers did their jobs in the highest professional manner to open the new school year.