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  • Sunday, September 07, 2008



    OUSD’s win of Rocco Lawsuit Appeal to be discussed at September 11th Board Meeting Closed Session

    At their September 11th meeting, the Orange Unified School Board will receive a Closed Session report on their September 4th, 2008 California 4th Appellate Court of Appeal (Court) victory over OUSD Trustee Steve Rocco and his allies at Californians Aware and California First Amendment Coalition. That victory affirmed OUSD’s right to the Resolution of Censure against Rocco that he had sought to nullify and confirmed the lower trial court order for OUSD to recover the $37,000 in attorney fees for the original lawsuit. In addition, the Court ordered Rocco pay an undetermined amount for OUSD’s attorney fees to defend against the Appellate Court appeal.

    In the original lower trial court legal case that Rocco and his allies lost, Rocco challenged the OUSD Resolution of Censure passed by the OUSD Board majority concerning remarks Rocco made at the September 14, 2006 OUSD School Board meeting regarding the reassignment of then Villa Park High School Principal Ben Rich as a violation of his free speech. Rocco sought to nullify the Resolution of Censure. OUSD defended itself by arguing the OUSD Board majority had not violated Rocco’s free speech because they had done nothing to prevent Rocco from making the statements for which he was he was censured. OUSD further argued that Rocco by seeking to nullify the Resolution of Censure would amount to an invasion of the Board’s free speech to express an opinion about Rocco’s conduct and comments. The court ruled in favor of Orange Unified and upheld the $37,000 in OUSD attorney’s fees the lower trial court had ordered Rocco and Californians Aware to pay.

    In the appeal, the Court sided with OUSD that Rocco’s appeal violated California’s Strategic Lawsuits Against Public Participation (SLAPP) laws. Those laws are designed to protect from lawsuits aimed at silencing free speech on public issues. On Rocco’s allegations of Brown Act violations, the Court sided with OUSD that the Resolution of Censure was based on OUSD Board Policy requiring personnel matters only be discussed in Closed Session , not the Brown Act. The Court ruled that it was Rocco’s refusal to discuss personnel matters in Closed Session “which subjected him to censure” and the court ruling added:

    “And that censure was likewise not in violation of the Brown Act. As the District points out, the censure did not prohibit Rocco from making his comments, nor did it include any provision which prevented him from doing so in the future. It thus did not run afoul of either Government Code sections 54954.2 or 54954.3”

    The Court also ruled:
    "Further, we conclude the censure resolution was not based upon the content of Rocco’s speech, but its location. We cannot even discern from the record before us whether any of the other board members agreed or disagreed with the substance of Rocco’s comments."

    "Instead, the problem was that he insisted upon making those comments – which concerned a sensitive personnel matter – during the open session of the Board meeting. In our view, Rocco’s unwillingness to participate in closed session, and to instead air his views regarding personnel matters during the Board’s open session, is a matter about which both Rocco and the Board have a right to express an opinion."

    Rocco’s suit also argued that Godley’s censorship of the video over cable television violated California’s open meeting law, the Brown Act. In 2006 Orange Net News broke the story that the video of the September 14th video that was broadcast over local cable had been censored on Dr. Godley’s instructions. Orange Net News published the transcripts of the portion of the meeting that was censored. OUSD had argued that the public could buy an uncensored CD copy of the meeting so that the broadcast was not an official record. Since the meeting censorship controversy, OUSD has included a “disclaimer” at the beginning of each OUSD School Board meeting cable cast that the program may be edited, but that an unedited version maybe purchased. The Appeals Court ruling addressed Rocco’s contention that the censored broadcast was a violation of the Brown Act by ruling:

    "Nor was the District’s production and distribution of its videotape, which intentionally excluded Rocco’s remarks, a violation of the Brown Act. The videotape, which was produced in the wake of the meeting, for later broadcast on cable television, was not itself a meeting of the Board. (Gov. Code, § 54952.2, subd. (a).) Consequently, the Brown Act had no application to it."

    The Court also ruled because the meeting was open to the public “Indeed, any person who had chosen to attend the meeting on September 14, 2006, would have had the opportunity to hear Rocco’s controversial remarks”.

    The Court further ruled:
    First, we must emphasize the undisputed fact that the District was under no legal duty to produce or distribute any video depicting the events of the meeting to the media. Absent a request under the Public Records Act in the wake of the meeting, it would have been entitled to file away the original video in a dark place, and never think about it again.

    The Court ruled that the District’s edited videotape was akin to a press release and “such as the District voluntarily seeks to publicize certain events or information to the newspapers or other media, than it is to a newspaper, which is a communication produced by a third party. Like a press release, and unlike a newspaper, the edited video in this case constitutes the District’s own communication, and it is thus the District which is responsible for, and has the concomitant right to determine, its content"

    "Moreover, the petition includes no allegations that the media, including local cable television outlets, were in any way prohibited from sending representatives to the Board’s meetings if they chose; from reporting freely on what transpired during those meetings; or from obtaining copies of any public records associated with the meetings pursuant to the Public Records Act. Nor does the petition allege any facts suggesting the District did anything to interfere with the right of any media outlet to report its own version of what occurred at the public portion of the meeting; or comment on any of those occurrences"

    The Court stated that censoring the videotape did not constitute altering a public record because the full uncut version was distributed to those who requested it including Richard McKee.

    The Court also rejected all of Rocco’s supporting case law examples as not applying to this particular case and concluded:

    "Based on all of the foregoing, we conclude CalAware and Rocco have failed to demonstrate a probability of success on their claim that the Board’s censure resolution improperly infringed on Rocco’s constitutionally protected freedom of speech. The Board’s act was merely an expression of its own opinion regarding Rocco’s refusal to comply with its policies and procedures – and not the content of his speech. The Board had a right to express that opinion, and did not impose any restrictions on Rocco’s ability to exercise his constitutional rights in the future. And to the extent that the Board’s negative feedback might, as a practical matter, discourage Rocco from engaging in such conduct in the future, that effect is too slight to outweigh the Board’s right to express its views"

    In ruling for OUSD the Appeals Court ruled that OUSD was entitled to not only the $37,000 in attorney fees for the original lawsuit, but also for the attorney fees for the appeal. The Appeals Court returned the case to the lower trial court to determine the amount of attorney fees that OUSD would be able to claim from Rocco and Californians Aware.

    INSIDE the OUSD September 11th Agenda
    OUSD’s Final Revised Budget for 2008-2009

    While the California State Legislature and Governor Arnold Schwarzenegger continue to battle over the two-month late state budget, in accordance with state law, OUSD will approve it’s final budget at the September 11th Board meeting. The 2008-2009 budget is consists of $15,832,291 in educational tax funds. The total includes: a required 3% reserve of $7.4 million; $2 million in the Supplementary Retirement Program fund; and an “unappropriated” account to spend during the year of $5.2 million.

    New SACBE Reps
    This year’s new Student Advisory Council to the Board of Education (SACBE) members will be welcomed to their first OUSD Board Meeting. This year’s representatives are: Canyon H.S.- Paul Loeffler; El Modena H.S.- Katherine Trinh; Sergio Sorza- Orange H.S.; Joshua Bender- Richland CHS; Daniel Duel- Villa Park HS.

    Community Donations
    Running Springs PTA- $3,000 PE Teacher salary; Albertsons Stores to Imperial ES- $156 in supplies; Lampson PTA- $10,000 Canopy/Elmos/Benches; Villa Park Women’s League to Serrano ES- $2819-PE Program and supplies.
    For a complete list of the $117,459 in Community Donations see OUSD Agenda page 10.

    INSIDE the OUSD Budget

    $774,500 Total

    2008 Attorney Fee Tally:

    6/19/08 Parker & Covert $ 60,000
    6/05/08 Miller, Brown & Dannis $ 40,000
    6/05/08 Parker & Covert $150,000
    6/05/08 Parker & Covert $200,000
    2/07/08 Parker & Covert $100,000
    11/15/07 Parker & Covert (for 1/08 to 6/08) $200,000
    Attorney Fee Total $750,000

    2008 Consultant/ Speaker Fee Tally:
    7/24/08 Dr. Parker 40 pt Consultant $ 10,000
    4/17/08 Dr. Kenneth Stichter Speaker Fee $ 6,500
    3/7/08 Dr. Kathleen Weigel Speaker Fee $ 8,000
    Consultant/Speaker Fee Total $ 24,500


    Former Superintendent Godley’s “golden handshake” bonus total (since 8/2008): $2420*

    * The Godley Retirement Bonus presented here is an estimate of the amount in “bonus retirement” accrued since the Superintendent’s retirement on 6/30/08 using a 6% lifetime formula calculated at $1210 a month since 8/08. The actual retirement plan the former OUSD Superintendent opted to take is not public information and the figures presented are only as an estimate of the taxpayer costs after the OUSD trustees voted against an amendment to exclude Godley from the retirement program. The on-going estimated figure is presented as a reminder to the community of the high cost in educational tax dollars the OUSD Board vote to allow the former Superintendent to participate in the 6% retirement incentive cost the OUSD education community in tax dollars. Godley retired from OUSD on June 30, 2008 after he worked for the school district for a little over five years.

    Total for Watched Tax Dollars approved in 2007: $704,090.00
    2007 Consultant/ Speaker Fee Tally:
    4/30/07 Debra Ford Speaker Fee $ 4,090
    4/30/07 Danny Brassell Speaker Fee $ 3,500
    3/8/07 Dr. Daggett Speaker Fee $ 9,000
    9/27/07 Dr.Daggett Speaker Fee $ 35,000
    11/15/07 OCDE High Priority Consultants $115,000
    Total $166,590

    2007 Attorney Fee Tally:
    1/18/07 Parker & Covert (1/07 to 6/07) $175,000
    (6/07-12/07) $200,000
    2/08/07 Miller, Brown, and Dannis $ 7, 500
    2/22/07 Parker & Covert $ 45,000
    5/10/07 Miller, Brown and Dannis $ 50,000
    7/19/07 Parker & Covert $ 60,000
    Total $537,500

    2007 Administrative Conference/Travel: hidden since 6/8/06**

    **JUNE 8th, 2006 Trustees VOTE to Give OUSD Superintendent the power to APPROVE Travel Requests taking this item OUT of the PUBLIC AGENDA

    Total for Watched Tax Dollars approved in 2006: $849,717.00*
    2006 Consultant Fee Tally: Total $176,400
    2006 Attorney Fee Tally: Total Approved $655,000
    2006 Administrative Conference/Travel: Total $ 18,317 *
    * JUNE 8th, 2006 Trustees VOTE to Give OUSD Superintendent the power to
    APPROVE OUSD Travel Requests taking this item OUT of the PUBLIC AGENDA

    Total for Watched Tax Dollars approved in 2005: $978,300.00:
    Total 2005 Conference Administrator/Board Fees: $ 7,500.00
    2005 Attorney Fee Tally: $730,600.00
    Total Watched 2005 OUSD Consultant spending: $ 270,200.00

    Next OUSD Board Meeting September 11th, 2008 for more information

    OUSD BOARD MEETING CLOSED SESSION STARTS 6:30 PM, Regular Session: 7:30 pm
    For more information call the OUSD Superintendent’s office at 714-628-4040
    For budgeting questions call Business Services at 714-628-4015

    ORANGE Unified Schools INSIDE
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