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Sunday, November 29, 2015

Brown Act Scandal: Schools Superintendent Admits Meeting Was Illegal

Evolving School District Scandal:
Schools Superintendent Admits 
Brown Act Law Was Broken

In a rapidly moving scandal, Emery Schools Superintendent John Rubio offered the following letter today (below) in response to accusations from Board member Christian Patz that before the public School Board meeting on November 18, a three Board member quorum including Board President John Affeldt, privately met in the Superintendent's office to discuss a proposed $5 million school bond issue on the Board's agenda, a Brown Act violation.  In the letter, Superintendent Rubio admits the private meeting was illegal and constituted a Brown Act violation.  Further, Mr Rubio seems to feel he himself is to blame for the illegal act, leaving the three Board members free from culpability.  Mr Patz has indicated that the Board, especially President Affeldt who is an attorney, is responsible for the violation.  
Conversely, President Affeldt as of today, still stands by his assertion that Mr Patz acted unprofessionally in bringing his charge of impropriety against the Board and that the private meeting with a Board quorum was appropriate and did not represent a Brown Act violation.  The two other Board members have not made a statement after the November 18th meeting.

Emery Schools Superintendent
John Rubio
For the record, the Board voted to sell the $5 million bond for construction of the Center of 'Community' Life at the public Board meeting (3-1 Patz dissenting, Ashe absent). 
The illegal quorum consisted of Mr Affeldt as well as Board members Melodi Dice and Donn Merriam.  Ms Dice has announced she will be stepping down from the Emery School Board in December for personal reasons unrelated to the Brown Act scandal.

Here is Superintendent Rubio's letter:

Dear Board Members:  

I received a copy of the e-mail sent by Board Member Patz on Friday (November 27th).    In that e-mail, he set forth his concerns about the meeting of the Superintendent’s Finance Committee that occurred on November 18, 2015.    Member Patz’s concerns are more completely laid out in the letter addressed to Board President Affeldt that was attached to the e-mail.  

I appreciate the questions because I also want to be sure that we correctly understand and follow the open meeting laws whenever the Brown Act applies.  

The purpose of the committee meeting that Member Patz identified in his email/letter, which I chaired, was simply to review (with John Baker’s assistance) an updated list of existing and potential expenses concerning ECCL.  These expenses were subsequently presented to the public, and to the full Board for the action it deemed appropriate, pursuant to an agendized item as part of the regular meeting agenda.    Indeed, most of the expenses reviewed by the committee had been discussed in public meetings over the last three months and were being updated with the most recent/accurate cost estimates for presentation to the full Board.  

I feel it is accurate to say that I, and all Emery USD Board Members, share Member Patz’s view that the Brown Act requires transparency.  The General Rule is that meetings are to take place in public.    While there are exceptions, they are just that – only limited exceptions to the General Rule.  

One exception is any committee formed by the Superintendent (i.e. not by formal action of the Board).    This is a slight modification to the Brown Act that was made to address some of the ambiguity that surrounded the old criteria of “standing” vs “non-standing,” permanent vs temporary, and decision making vs advisory.  

I, and superintendents before me in Emery USD, have formed these committees to assist Superintendents to prepare agenda items for presentation to the full Board for discussion and potential action.    They are not empowered to, nor do they, take any action on behalf of the District.

I believe that the Superintendent’s Finance Committee qualifies as an exception to the General Rule provided there are only two Board Members in attendance at the meeting.  I recently double-checked with legal counsel who affirmed the legality of this practice.    It appears that Member Patz understands this exception.   It is his view, however, that the Board should eliminate the possibility of such committees.  

I erroneously believed that it was permissible for a third Board member to attend, provided he/she did not “participate.”    This, however, was based on me not correctly understanding the law.    Attendance by a third member would only have been permitted if he/she were attending a properly noticed meeting of a committee created by Board action.    In such a case, even if a quorum of the full Board was present, other Board members could attend a “standing” committee provided they neither sat at the dais nor “participated.”  

I concur that Government Code Section 54952.2 (a) spells out when a meeting has occurred:   A Board meeting has occurred whenever a majority of Board members gather at the same time and location (including by teleconference) to hear, discuss, deliberate or take action on any item that is within the subject matter jurisdiction of the Board or district.  

I do not concur with Member Patz’s characterization of what occurred during the meeting of the Superintendent’s Finance Committee on November   At no time was a vote taken, nor was there a collective commitment to take an action, nor was there a promise or collective commitment to take an action. 
I have summarized Member Patz’s demands, and offer the following observations and recommendations to Member Patz and the full Board to resolve his concerns and his demands:  

1.  DEMAND:     Cease and desist all meetings of the Superintendent’s Committees on Finance and Facilities.   Or, in the alternative, establish them by formal Board action so that they are subject to the Brown Act.  

Superintendent’s Response:    I feel that, as currently configured and formed, these committees are very valuable to the Superintendent.    While it is a policy determination for the Board, I recommend that the Board continue to permit me and future Superintendents the latitude to establish such committees as deemed necessary.    In no case, however, can a quorum of the Board ever attend such a meeting.  

2.  DEMAND:     An acknowledgment at a future Board meeting that the Superintendent’s Finance Committee meeting on November 18th was a non-agendized meeting of the full Board.

Superintendent’s Response:    Because it was my committee, I will make this acknowledgment at the next regular meeting of the Board.    Board members may, as they feel it appropriate, comment on my acknowledgment.  

3.   DEMAND:     Board Members, particularly those that attended the meeting on November 18th, to receive Brown Act training at no cost to the public.  

Superintendent’s Response:    Brown Act Training, including periodic refreshers, is invaluable to public officials (including Superintendents).   I have asked Bob Kingsley, of Kingsley Bogard, to present a Brown Act workshop to the Board.    Because of his Firm’s long-standing relationship to the District, he has agreed to do so at no charge to the District.   I will survey Board members to determine an acceptable time and date.  

It is important to note a final factor - there is nothing related to the vote taken concerning the bonds to cure and correct.   I have consulted with a legal counsel at each of the two firms primarily used by the District, and both concur with this assessment since the entire Board discussed, deliberated and gave direction on the topic during the open session pursuant to an agendized item.   Moreover, as Memberr Patz acknowledged, a technical violation of the Brown Act does not void actions (such as bonds) that involve third parties.  

If he feels it is necessary, I am happy to meet with Board Member Patz to discuss his letter and my recommendations to the Board.   To the extent that he feels that my recommendations do not fully address his demands, I will work with him to resolve any remaining issues.   As necessary, I will involve legal counsel.    

Whenever I make an error or have misunderstood the law, I will always take immediate action to correct my understanding and District practices.   In this spirit of correction, improvement and collaboration, I urge all Board members in the future to bring such matters to my attention in a non-confrontational manner.   I believe that the Emery USD community (students, families and staff) depend on a professional, well-functioning Board where all members work together to resolve our issues.  

In closing, I feel it is accurate to say that the entire Board and I are committed to follow the Brown Act whenever it applies.    

Thank You,     

Dr. John Rubio, Superintendent 


  1. I agree with Patz, the Board is responsible for the improper meeting behind closed doors. They need to accept responsibility for this. I also agree that Affeldt is the primary responsible person. He needs to tell us why this happened and apologize.

  2. supt. rubio's states that he has asked kingsley bogard to present a brown act workshop to the board and that they agreed to do so at no charge to the district. this is disingenuous. as a former member of the measure j oversight committee, we all received a 10 lb. notebook of guidelines which included "the brown act open meetings for local legislative bodies," written by then attorney general bill lockyer. oversight committee members were not elected, but selected and not paid. if one had any questions, all one had to do was google "the brown act." do you mean to tell me that the superintendent and board members feel additional training is required? rubio earns over $200,000 per year. knowledge of the brown act should be etched in his and the school board members' brains. I would like to remind school officials that every time they try to sneak in something nefarious and seek legal counsel to defend their actions, the taxpayers end up paying for that legal advice. so why can't you just play fair and save us some money?