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  • Thursday, October 19, 2006


    Metro Views

    Highly-Charged Rhetoric in Orange Unified Obscures The Most Important Question:

    Are the actions of the District providing our children the proper civic lessons

    Giving Voice to the Greater Orange Communities

    A community viewpoint from Richard P. McKee

    In the politically charged atmosphere that is Orange Unified, it’s amazing how rapidly unsigned misinformation and false statements about the law can spread. So, to set the record straight, I’ll examine some of this ignorance, which has been so well-cultivated, fertilized, and disseminated by OUSD’s legal counsel.

    First is the assertion that Steve Rocco’s announcement, that he would vote to fire Ben Rich, violated Rich’s privacy interests. This claim is nothing less than ridiculous, as the federal courts have repeatedly ruled.

    We are discussing a public agency, OUSD. Anyone has the right to make and broadcast observations about how the public school district is functioning and how public employees are performing their jobs. There is no constitutional right of privacy in a public meeting when it comes to discussing how well or how poorly a public employee performs her/his job. And the Brown Act expressly forbids the school board from prohibiting criticism of the district, the Board’s decisions, or the job performance of school employees. Nor does the law require that an employee be given advance notice of any criticism to be presented in an open meeting.

    Second is the claim that the Board, collectively exercising its right to free speech, has every right to censure Mr. Rocco. Well, just as I said at the last Board meeting, the Board does have that right. But it doesn’t have the right to claim that it was punishing Rocco for violating California’s Constitution and the Brown Act. And there’s the problem. Because, if the Board can get away with intimidating one of its members by claiming he broke the law by making negative comments about an employee, the Board successfully intimidates others from making such public comments.

    Rocco’s comments revealed no confidential information, breached no right of privacy, and are not forbidden under the Brown Act. In fact, those comments about firing Ben Rich are entirely protected by the Constitution and the Brown Act. In other words, the findings presented in the censure resolution, drafted by attorney Covert, aren’t just inaccurate, they are lies. And if Covert doesn’t know that, what does that tell the people of OUSD about his competence?

    Third is the claim that I do not have “standing” to bring a Brown Act lawsuit against OUSD, and should I try, the suit would be thrown out because of the anti-SLAPP statute and I would be forced to pay the District’s attorney fees. This assertion is at least creatively ignorant.

    Mr. Covert tried to use the standing issue back in 2001 when I sued OUSD for the Brown Act violations he created. It would be good for those uninformed on Brown Act litigation to read the ruling by the Fourth District Court of Appeals in McKee v. Orange Unified School District (2003) 110 Cal.App.4th 1320, where the court found that not only did I have standing, but that any citizen in California, no matter where they live, has standing to bring a Brown Act lawsuit against any public agency in California.

    As for the application of the anti-SLAPP statute, Code of Civil Procedure section 425.16, to this situation, or to a Brown Act lawsuit I might bring, it simply does not apply. CCP § 425.16 is a law for the opposite purpose, to protect individuals from being sued by public agencies as a way to get them to stop making negative comments about those agencies. The law was enacted because public agencies were suing critics to shut them up by making the defense of their First Amendment rights such an expense that the critics would agree to remain silent.

    For example, in 2000 the Los Angeles Times and I were sued by Three Valleys Municipal Water District because we had very publicly criticized the district and demanded the release of a settlement agreement. In response, I brought a successful Brown Act lawsuit against the water district, McKee v. Three Valleys MWD (2000) LASC Case No. BS066489, and joined with the Times to bring an anti-SLAPP motion, which won the dismissal of the water district’s lawsuit and an order for the district to pay our attorney fees.

    It must be recognized that a Brown Act lawsuit is in no way an attempt to stifle the Board’s right to speak. In the present situation, it would be a suit against OUSD for failing to perform its ministerial duties as required by the Brown Act; that is, the Brown Act requirement that the Board do nothing to discourage criticism of the policies and performance of the District, including criticism of its employees. Both Baca v. Moreno Valley School District (1996) 936 F.Supp. 719 and Leventhal v. Vista Unified School District (1997) 973 F.Supp. 951 were cases brought against school boards for doing the same thing the OUSD Board has done, trying to invoke policies to stop or discourage people from making negative comments about school employees. Both courts struck down those efforts by the school boards.

    Then there’s the really myopic argument that the passage of the censure resolution is merely the Board exercising its protected right to free speech; it’s just a statement of disapproval.

    Well, if the resolution merely said that the Board disapproves of Mr. Rocco’s actions or what he has to say or how he says it, it would constitute just the exercise of free speech. But that’s not what Resolution 10-06-07 says. The Resolution says that what Rocco said was “clearly in violation of the provisions of the California Constitution Article 1, Section 1, the Ralph M. Brown Act at Government Code sections 54957 and 54963, and Board Bylaws 9005(a)5, and 9005(b)5, which protect an individual’s right of privacy.” Those statements are entirely false and are used for only one purpose. That is to embarrass, intimidate, and deny anyone the chance to make negative statements about a District employee during a public meeting, if those negative statements are not those welcomed by the Board majority. And the proof comes from the fact that the Board did not censure President Nichols when she said, in two different meetings, that Villa Park High teacher Linda Bartrom was not properly credentialed for one of the classes she was teaching.

    The Board really wants to punish Rocco because of how he presents himself, his perspective on issues, his irritating and uncooperative manner, and because he refuses to attend closed sessions. Basically, they want to punish him for being elected.

    The real trouble is, if you say you believe in the Bill of Rights and the First Amendment’s protection of speech, there will come times that can really test your convictions.

    In the movie The American President, Michael Douglas called it advanced citizenship, saying, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the land of the free.”

    I have no children in this district; no relatives living in Orange Unified; no friends running for office. My only interest is in protecting the rights afforded to all in an open public forum. So I oppose the Board majority’s effort to intimidate all who would dare to speak what the Board doesn’t want to be broadcast.

    Californians Aware is a statewide group of public officials, media representatives, attorneys, and citizen activists dedicated to the protection of public forum rights. Our General Counsel is Terry Francke, the guy who has written much of the Brown Act.

    And to our knowledge, OUSD’s legal counsel Spencer Covert has lost more open government lawsuits than any other attorney in the State of California. Those include a case five years ago, brought after he publicly assured the Orange Unified Board of Education that by following his advice they were obeying the Brown Act. Well, the Board followed his advice, the Board was sued, and two years later was ordered by the court to tape record its closed sessions for three years because of the Covert-endorsed Brown Act violations, and to pay tens-of-thousands of dollars in attorney fees to the plaintiff.

    So what do you think? Should the OUSD Board believe Covert’s assurances again?
    Richard P. McKee is professor of chemistry at Pasadena City College and president of Californians Aware.

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

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