Greater Orange News Service

The Orange Unified Board tramples the First Amendment
Is the reason ignorance, or politics, or bad legal advice -- or all of these?
a community viewpoint by Richard McKee

Richard P. McKee is professor of chemistry at Pasadena City College, president of Californians Aware, past-president of California First Amendment Coalition, and plaintiff in McKee v. Orange Unified School District (2003) 110 Cal.App.4th 1310.

On October 12th, the Orange Unified School Board will consider censuring one of its own members for announcing, in an open meeting, that he would vote to fire District employee Ben Rich, a recently reassigned principal. The censure resolution claims the board member’s public comment violated the California Constitution, the Brown Act, and school board policy.

But these charges completely misstate the law, making the resolution, drafted by OUSD legal counsel Spencer Covert, nothing more than a political fraud created at taxpayers’ expense.

Free Speech
A “limited public forum” – it’s the term used by the U.S. Supreme Court to designate public property that has been opened by the state for public use as a place for expressive activity. Repeatedly, the courts have found that public school board meetings fit this category, thus giving the board the power to set only reasonable time, place and manner regulations on the speech within those meetings. Examples of such regulations would be limiting speech to only those topics falling within the school board’s jurisdiction, setting a reasonable time limit, designating when public comment on particular items is appropriate, and controlling abuses that disrupt the meeting. Otherwise, the board may never limit anyone’s speech based upon its content.

But the courts have gone further, explaining that the privacy rights of individual employees do not trump the public’s right to criticize school district employees by name in an open meeting. In Baca v. Moreno Valley School District (1996) 936 F.Supp. 719 the federal court considered a school board policy that prohibited public complaints in an open meeting about a district employee. In finding such a policy unconstitutional, the court (at page 727) ruled that “under the California Constitution, District’s Board may not censor speech by prohibiting citizens from speaking, even if their speech is, or may be, defamatory.” A year later this ruling was affirmed in Leventhal v. Vista Unified School District (1997) 973 F.Supp. 951.

Isn’t it remarkable that just nine years later the Orange Unified school board, saying their policies forbid such public meeting criticism, is considering the same censorship previously found to be unconstitutional? Well, actually, it’s not so remarkable when viewed in historical perspective.

Covert Operations
Five years ago, in one of the first actions of a new school board majority promising greater openness, Spencer Covert was appointed the District’s legal counsel. Ironically, the hastily-called Special Meeting, sanctioned by Covert and coming just 13 days after a recall election, included the new members who had not yet been officially declared elected by the Registrar of Voters.
After allegations of Brown Act violations and a threat of litigation, on August 27, 2001, an embarrassed Board was forced to rescind all the actions it had taken at that first meeting seven weeks earlier. And since that less than auspicious beginning, Covert’s encouragement of illegal secrecy has subjected the Board of Education to extraordinary scrutiny from open government organizations, a concerned public, and the courts.

But the Board has only itself to blame. From the beginning it was widely known that Covert had a practice of approving or defending violations of open government laws.

Newspapers had reported Covert’s 1993 defense of the Corona-Norco superintendent’s decision to shred copies of a report on district employees making repairs to the superintendent’s home. While Covert claimed the report wasn’t a public record, the Riverside Superior Court disagreed and ordered the District to prevent destruction of the records.

In 1997, while general counsel for Chino Unified School District, Covert was involved in hiding the fact that the school board was meeting to secretly negotiate and approve a $200,000 agreement to buyout the superintendent’s contract, while telling the public the closed session was only a performance evaluation. The District was sued for Brown Act violations and, after losing in court and paying plaintiff’s legal fees, Covert was gone. And within just two years, the voters had replaced all five of the Board members involved.

Again in 1999 newspapers reported that, while Covert was its legal counsel, South Orange County Community College District was found to have violated the Brown Act, with the Orange Superior Court ordering the Board to tape record its closed sessions due to its “persistent and defiant misconduct.”

So, even before his tenure began at OUSD, Southern California school districts engaging Covert as legal counsel had lost tens of thousands, if not hundreds of thousands of public dollars and an incalculable amount of the public’s faith.

Thus it came as no surprise on August 27, 2001, when OUSD’s then-Board President Bob Viviano, having been warned that the Board was about to violate the Brown Act again, turned to Covert to ask whether the closed session on real estate negotiations the Board was about to hold was legal as agendized. In character, Covert reassuringly gave it his stamp of approval.

Sure enough the District was sued, losing in both Orange Superior Court and the Court of Appeals. Evidence in that case proved that the Board had secret communications with the County of Orange, seeking concessions that would have made commercial development of its 500-acre Barham Ranch easier, while the Board used its agendas to give the public the opposite impression -- that the District was planning to sell the land to the County for preservation as a park. Because of the Covert-approved deception, the Court ordered the District to pay the plaintiff’s attorney fees and to tape record closed sessions for three years.
But even after all his history, Covert is still legal counsel for Orange Unified.

Censure Resolution a Fraud
Covert has admitted drafting the proposed censure of Board member Steve Rocco. Beyond the claims that Rocco’s comments violate the California Constitution and Board policy (both contradicted by the Federal courts), the resolution’s major justification for the censure is that the Brown Act requires school board members to discuss, deliberate and take action on matters pertaining to the discipline, dismissal, release, and performance evaluation of employees in closed, not public session of the school board. The resolution goes on to say that Mr. Rocco’s statement that he would fire Ben Rich is “clearly in violation” of the Brown Act. Well, Covert has completely misstated the law . . . again!

The Brown Act does not require anything to be deliberated or acted upon in closed session; it only permits very limited subjects to be discussed in properly agendized closed sessions, should the Board so decide.

In fact, any member of the public, including Board members and District employees, have a First Amendment right to speak to any issue within the Board’s jurisdiction, including positive or negative comments about the performance of an individually-identified employee or Board member.

Thus, the censure resolution, promoted by Clerk Wes Poutsma and President Kimberlee Nichols, becomes no more than a political effort to censor Mr. Rocco’s speech. And that effort looks even more bazaar when one recognizes that the Board President has engaged in exactly the same conduct. In open session at the last two Board meetings, Nichols has questioned both the assignment and credentialing of an employee she named.

Additionally, the action of Superintendent Thomas Godley serves to confirm the majority’s effort to keep Rocco’s criticism from being heard by District voters. After the 9/14 Board meeting, Godley altered a video tape copy of the meeting, sending it out for cable broadcast absent Rocco’s comments. Godley asserted that this was done with Covert’s advice and was meant to save the District from a defamation suit.

But the truth is, the named employee cannot hold the District legally responsible for anything said by an individual in a public forum, even if it’s said by a board member. And more importantly, Government Code section 6200 makes it a felony to alter or falsify a public record, such as the video tape of the meeting.

Conclusion
While it’s true that Mr. Rocco often presents his opinions in a politically incorrect manner, which some may find offensive or belaboring, the First Amendment is meant to further the marketplace of ideas – all ideas, not just the ones we want to hear or agree with.

Furthermore, like it or not, Mr. Rocco was elected. It’s his duty to represent the electorate in the best way he knows how. Through his actions, the voters will assess his performance.

If the OUSD Board truly cares anything about openness and free speech, they’ll shelve this censure resolution and fire their attorney, a move that’s long overdue. And even if they don’t care about individual rights, they should do it to avoid an inevitable Brown Act and First Amendment lawsuit they can’t win, and the legal tab that will follow. For just as Hewlett Packard is learning, whether it be a public or a private board, “Covert operations” should never be allowed.


Metro Views is open to community members and organizations to voice their opinions on important local community issues in the Greater Orange Communities.