SCHOOL DISTRICT COULD FACE MORE LAWSUITS OVER BROWN ACT

Grappling with budgetary constraints that have already brought about the demise of the storied Junior ROTC program, the Santa Barbara School District may suffer more financial duress. The district faces close review by the district attorney and possible lawsuits from private individuals over alleged violations of the Brown Act, the state’s open meeting laws.

The Santa Barbara Chapter of the Libertarian Party had threatened to file a lawsuit over the violations but reached a settlement with the school district. In exchange for $5,000 to defray its legal costs, the Libertarian Party agreed to abandon any litigation pursuits. In addition, the district promised to tape-record all closed sessions for a minimum period of one year.

The lawsuit discussions came about a month ago when senior school board member Bob Noël, in disclosures to media and to his colleagues last month, revealed what he considered “explicit violations” of the Brown Act during a board closed-door session that took place on February 28.

In a seven-page memo issued to fellow school board members and Superintendent Brian Sarvis on March 9, Noël said the board was presented with potential budget cuts totaling $2.6 million. The reductions, Noël wrote, were designed to refill district reserves and to allow for salary increases agreed upon during collective bargaining agreements with the Santa Barbara Teachers Association and the California State Employees Association.

Noël accused other board members of discussing and possibly deciding on these matters to avoid public outcry. “To be sure, budget cuts and program cutbacks are known to precipitate public controversy, to fill the boardroom and to give rise to debate and criticism,” Noël, who has served on the board for eight years, wrote. “Rather than looking upon such controversy with aversion, I see it as the democratic system at work in a pluralistic community.”

This isn’t the first time Noël has questioned his colleagues’ ethics. After the school board terminated the Junior ROTC program on February 28, Noël said board members had already made their decision in a closed-door session, “slipping controversial items past the public unnoticed and without input.”

Sparked by Noël’s latest revelations, other board members immediately retaliated by attempting to publicly punish Noël for “unauthorized disclosures of closed session communications and action” and to request legal scrutiny of the matter by the district attorney.

“I was concerned about the fact that we had a single board member violating confidentiality between the board,” said Annette Cordero, board president. “It would threaten board actions by having a member violate the member oath.”

The accusations against Noël were turned into an action item for the board’s April 11 meeting that was the subject of more than three hours of emotional and sometimes rancorous argumentation. The board members engaged in heated exchanges and outbursts with themselves and, in many cases, with audience members. The back-and-forths featured wild flails of arms in protest, pounding of fists on tables, accusatory finger pointing, mocking facial expressions such as rolling of the eyes and other behavior that is mostly absent during what are typically civil public procedures.

Noël called the current district administration a “kangaroo court motivated entirely by politics.” Other board members fired back alleging that it was Noël who turned the discussions into a “circus.”

“We are really tired of being attacked by you,” Cordero told Noël.

During the public comment period, more than 20 speakers, many from Montecito, attempted to vindicate Noël, praising him for making the disclosure while criticizing the rest of the board for trying to punish their fellow board member.

“Every one of you had an obligation under the law to disclose violations that Dr. Noël [disclosed],” said Lee McCoy, an attorney and former District Advisory Council member. “We wouldn’t be discussing this issue unless Dr. Noël had the courage to reveal it.”

Byron Ishkanian, a Montecito resident and Noël’s friend of 70 years, cautioned the board to come clean and mitigate further legal harm. “[Noël] is trying to save you from yourselves,” Ishkanian said.

Meanwhile, Ishkanian’s wife, Judith, thanked Noël for his “lifetime of service.”

Former school board member Lanny Ebenstein urged the board to scrap the action item and settle the matter internally. “This is one of the worst agenda items in the thirty years I’ve been attending school board meetings,” Ebenstein said. “I don’t think Dr. Noël acted in bad faith.”

Montecito resident and writer Joe Atwill said it would be improper for the board to act as a tribunal and “pre-judge” Noël’s disclosure as unlawful conduct. “This is like a full employment contract for every attorney in Santa Barbara to sue you,” Atwill told the board. “Let’s end the madness.”

At the same time, other speakers opined that the allegations were brought on by the board’s penchant for being secretive. “You are not open, not open at all,” Joan Esposito said.

Parent Michael Zoradi added: “I don’t think the Brown Act lets you have budgetary discussions disguised as labor discussions.”

Required by Law?

Noël argues that state law obligates elected officials to disclose violations or be subject to a misdemeanor charge, as stated in Section 54959 of the Brown Act.

“I wanted to distance myself from the real possibility that there had been unlawful disclosure,” Noël said.

The district’s legal counsel, Craig Price, however, said trustees shouldn’t reveal illegalities occurring in confidential meetings unless authorized by a governing body. “This would best be resolved by referral to the district attorney’s office,” Price said. “It seems to me that there needs to be separate review. Otherwise, there’s going to be lingering doubt and concern.”

Asked by Noël whether citizens could sue over the violations, Price responded that they could, but added, “that would be unnecessarily disharmonious.”

Audience members suggested that Price had taken a legal position defending the majority, instead of the whole board. Denice Adams, founder of Supporters of Advanced and Gate Education (SAGE) and a Santa Barbara Junior High parent, said this presents a conflict of interest and that Price and his firm, Griffith and Thornburgh, LLC, should not represent the board in these proceedings.

Noël indicated he may maintain his own legal representation.

Majority board members said they felt betrayed that Noël made his accusations public rather than resolving the issue internally. Board member Nancy Harter said Noël used discussions from the confidential meeting to sabotage the district.

“It was my perception that my fellow board member came to the closed-door session not to participate, but to ambush us,” Harter said.

Another board member, Lynn Rodriguez, called Noël’s accusations “erroneous.”

“This is damaging, distracting and it undermines our mission,” she added.

Superintendent Sarvis stood by the majority and sternly reprimanded Noël. “Bob, I believe that your memo wrongly discredits the board and staff,” Sarvis said. “Bob, you got it wrong. There is no $2.6-million deficit. I think the public deserves better, Bob.”

Sarvis never denied whether or not budgetary discussions ever took place.

As the night drew on, board members eventually agreed to start taping closed-door sessions to ensure that further disagreements could be resolved with the use of official transcriptions. The accusation that Noël may have violated the Brown Act went unresolved. Either way, Price confirmed that the district attorney’s office would be reviewing Noël’s allegations.

Despite the agreement settlement with the Libertarian Party, Noël said the threat of litigation is still plausible. Another lawsuit would present the third time since 1999 that the board has been sued over violations of open meeting laws. Nearly seven years ago, the board settled a case for $52,000 with the Santa Barbara chapter of the Libertarian Party without admission of wrongdoing. Last June, the district won a lawsuit against a parent who accused trustees of making 22 Brown Act violations.

Former public officials attribute the district’s legal woes to board members’ increasingly more relaxed attitude toward the Brown Act, compared to their predecessors. “In general, I think that elected bodies have inclined too much in the direction of an encompassing interpretation of the Brown Act rather than a restricted interpretation,” said Ebenstein. “It’s not a malevolent intent on part of the board, it just ends up that way.”

Fred Rifkin, who served on the school board for eight years, stopped short of analyzing the current board’s behavior, but said that during his tenure there was “seldom discussion about Brown Act violations.”

Describing his time on the board as an “experience of collegiality,” Rifkin said that he and other trustees were careful about closed meeting discussions and that “to the best of my recollection, we never had budget discussions.”

Dispute Longtime Coming

In several ways, the confrontation between Noël and the remaining board members wasn’t entirely surprising. For two years Noël has been a maverick officer, sparring relentlessly with fellow board members on crucial action items and often standing as the sole minority vote in a series of 4-1 decisions. “There’s no question that Bob and the four remaining members, since Fred Rifkin left, have been in constant opposition,” said Lanny Ebenstein.

To his critics, Noël is seen as unnecessarily abrasive and confrontational. But to his backers, he is regarded as a principled and determined public servant, whose against-the-grain tactics make for a healthy democratic process. “Trustee Noël’s integrity is exemplary, his research thorough, his public writings and statements well founded and based on available facts,” said Denice Adams. “He has proven to be an exceptional school board member and community leader.”

The chief tensions among board members may have been hatched in January 2004, when Ruth E. Green left the board to join the State Board of Education. It was then that Ebenstein said he noticed the board’s abrupt tilt of “ideological balance” shifting to a “progressive democrat direction.” The change in ideology, though, isn’t representative of the larger community’s “philosophical perspective,” said Ebenstein, which he sees evidenced by overwhelming public dismay over the recent discharge of the 86-year-old Junior ROTC program and over other recent keynote decisions.

But despite their conflicting ideologies Rifkin said it was imperative for the board members to quickly settle their differences, lest an already cash-strapped district face more financial hardship. “It’s a shame that these issues couldn’t be resolved in private,” Rifkin said. “It’s unfortunate that this would lead to additional costs for the district.”