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Friday, November 27, 2015

Emery School Board Member Patz Details Sweeping Transparency Violation

Letter Alleges "Substantial" Brown Act Violation at School Board

Board Member Patz Breaks Rank

President Affeldt Shown 'Doubling Down' on "Closed Door" Law Breaking Activity

Emery School Board member
Christian Patz Ed.D.
Emery Unified School District Board Trustee Christian Patz today released a damning letter against three of his colleagues and the Superintendent of the Schools alleging broad violations of "central provisions" of the Brown Act, the suite of transparency law provisions meant to stop back room dealings among elected officials in California.  Board member Patz indicates the matter is not finished with release of the letter transcribed below, and that he is seeking legal assistance as he prosecutes the School District and the President of the Board John Affeldt for conducting an illegal private meeting with a Board quorum while discussing the disbursement of public funds as the Tattler exposed Monday.  

The revelatory charge brought by Board member Patz, arguably represents the most egregious violation of the Brown Act in modern Emeryville history.  Notable, is the reaction taken by President Affeldt, an attorney, as he attempted to 'double down' on the allegations by publicly repudiating Mr Patz for making the charges at the November 18th Board meeting and insisting that the silence of one of the Board members at the preceding private meeting in question constitutes a legal action.  A reading of the Brown Act disputes Mr Affeldt's claim.

Here is the letter released today by Mr Patz, in the still developing story: 

President John Affeldt
Board of Trustees
Emery Unified School District

Dear Mr. Affeldt,

This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Act. It is clear that the meeting you attended behind closed doors with Members Dice and Merriam and Superintendent Rubio was improper. In the past, I have expressed my concern that the superintendent’s committee meetings either violated the Brown Act or were an attempt to side step the purpose of the Act. I draw your attention to section 54952(b) , “…except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.”

Prior to the board meeting of November 18, 2015, under the guise of the above mentioned superintendent’s committee, a quorum of members met with Superintendent Rubio in a nonpublic pre-meeting conference to discuss and allocate funds for the district. During the public board meeting on November 18th the Emery Unified School District (EUSD) took action to sell General Education Bonds in a three to one vote, with all of the board members that met in secret voting to sell the bonds.
To be clear, three members were in a room behind closed doors meeting to discuss the allocation of funds from the Bonds that had not yet been authorized by the board. When I addressed this issue at the board meeting the following facts were not in dispute:
  1. A meeting of the superintendent’s finance committee was being held in John Rubio’s office. John Rubio and John Baker of Swinerton were in attendance.
  2. Member Dice and you, John Affeldt are members of this committee and were both in attendance on November 18, 2015.
  3. The committee is not a subcommittee of the board, therefor the meeting is not noticed nor agendized. Minutes of the meeting are not available, nor was there any report out.
  4. The meeting was held behind closed doors and the public was not able and not welcome to attend.
  5. The expenditure of proceeds from the yet to be voted on bond sale were discussed, see attached image of the list that was presented at the board meeting
  6. Member Donn Merriam also attended this meeting, creating a quorum of members
  7. On at least one other occasion in the last year, there have been at least three members of the board present at a similar meeting. 
Given, there is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors, it follows that action taken following that meeting was not in compliance with the Brown Act because it occurred as the culmination of a discussion in closed session of a matter which the Act does not permit to be discussed in closed session. 

Furthermore, by our own policy, the meeting was a board meeting, per board bylaws 9320 (emphasis added), “A Board meeting exists whenever a majority of Board members gather at the same time and place to hear, discuss or deliberate upon any item within the subject matter jurisdiction of the Board or district. (Government Code 54952.2)” All board meeting are subject to the Brown Act.

In the event it appears to you that the conduct of the EUSD Board specified herein did not amount to the taking of action, I call your attention to Section 54952.6, which defines “action taken” for the purposes of the Act expansively, i.e. as “a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.”

As you are aware, the Brown Act creates specific agenda obligations for notifying the public with a “brief description” of each item to be discussed or acted upon, and also creates a legal remedy for illegally taken actions—namely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Unfortunately, the sales of bonds are excluded from this rule.

Pursuant to that provision (Government Code Section 54960.1), I demand that the EUSD Board cease and desist the informal sessions or conferences of the board members designed for the discussion of public business referred to as the superintendent’s finance and facilities committees: a disclosure at a subsequent meeting from individual members of the board stipulating that they understand they violated the Brown Act by holding a closed door meeting to discuss school business, accompanied by notice of when and how offending board members will acquire training on the Brown Act, without cost to the public. If the Board feels there is a need to continue with the sub committees of the board, they make them formal sub committees, subject to and following the Brown Act by holding them in public with proper notice and published agendas.

As provided by Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action 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 action pursuant to Section 54960.1, in which case I would also ask the court to order you to pay my court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.

Respectfully yours,

Christian Patz, Ed.D.
Board Member EUSD

CC: Media, Alameda County of Education Board of Trustees, Emeryville City Council, legal counsel


  1. Inexcusable. And Affeldt is an attorney? I can't say for sure about the two other board members but the attorney president and the superintendent should know better. I think they DO know better but they obviously don't care. Well, now they're going to care, they're going to have to pay the price thanks to Patz. This is really deplorable. Please don't drop this story and please keep their feet to the fire.
    I have a child in the district.

  2. Thank you Mr Patz. It sure looks like they were intentionally shutting you out in violation of the Brown Act. Not very smart on their part. In the least it sends the image of inpropriety. At worst they may be breaking the law. Shame on them.

  3. Great work Mr. Patz. Much appreciated!

    Michael Webber, residing in Emeryville since 2006 and still astonished