Monday, May 12, 2008

Times blogger comments on McHenry's Ouster Effort...

Jackie Burrell of the aPARENTly Speaking blog at the CCTimes has commented on the recent events surrounding the Mt. Diablo School district:

The big news out of Mt. Diablo last week was the parent petition to oust superintendent Gary McHenry. The anonymous petition began circulating on a number of blogs first, now it’s up on, where people can sign it electronically. This has been a tough year for McHenry, one that included a no-confidence vote by the 1,900-member teachers union, a call for McHenry’s ouster by two board members, and a secession attempt by families at the district’s top-ranked Northgate High and its feeder schools. Now, the union is stepping up its protests over still-stalled contract negotiations. It’s got to be pretty tough on McHenry, but we’ve got to say, he’s not making this any easier. Apparently at the board meeting last week, McHenry told teachers that board meetings are for parents, not teachers. Actually, Gary, they’re for taxpayers - the folks who pay your salary and whose hundreds of millions you’re spending.

Read the entire post by clicking here


  1. Public meetings are for everybody. It is a violation to exclude any member of the public. Signed QBERT

  2. QBERT
    "3.6 Remedies For Violations

    There are both public-relations and legal consequences from an OPMA violation. The loss of credibility suffered by an agency as a result of a judicial finding of an OPMA violation—or even the mere filing of an OPMA suit—may be the most severe consequence. Once damaged, that credibility can be very difficult to regain and can negatively affect every other action of the agency in the public’s eyes. Most agencies are governed by elected officials, and actual or perceived attempts to hold secret meetings are not popular with voters.

    The legal consequences can be severe. First, any action taken in violation of the OPMA is void.

    Statutory Provision: (1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void. (2) No governing body of a public agency at any meeting required to be open to the public shall vote by secret ballot. Any vote taken in violation of this subsection shall be null and void, and shall be considered an "action" under this chapter. RCW 42.30.060.

    If an agency violates the OPMA and its action is null and void, it must retrace its steps by taking the action in accordance with the OPMA, which usually means re-discussing and re-voting on the matter in an open meeting. See Henry v. Town of Oakville, 30 Wn. App. 240, 246, 633 P.2d 892 (1981), review denied, 96 Wn.2d 1027 (1982); Feature Realty v. City of Spokane, 331 F.3d 1082, 1091 (9th Cir. 2003) (agency re-tracing of steps must be done in public). If a person seeks to void an election based upon a violation of the OPMA, the lawsuit must be initiated as soon as possible or the court may bar that relief based on the delay in filing. Lopp v. Peninsula School Dist. No. 401, 90 Wn.2d 754, 585 P.2d 801 (1978).

    Second, the OPMA provides for financial penalties.

    Statutory provision: (1) Each member of the governing body who attends a meeting of such governing body where action is taken in violation of any provision of this chapter applicable to him, with knowledge of the fact that the meeting is in violation thereof, shall be subject to personal liability in the form of a civil penalty in the amount of one hundred dollars. The civil penalty shall be assessed by a judge of the superior court and an action to enforce this penalty may be brought by any person. A violation of this chapter does not constitute a crime and assessment of the civil penalty by a judge shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. (2) Any person who prevails against a public agency in any action in the courts for a violation of this chapter shall be awarded all costs, including reasonable attorney fees, incurred in connection with such legal action. Pursuant to RCW 4.84.185, any public agency who prevails in any action in the courts for a violation of this chapter may be awarded reasonable expenses and attorney fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause. RCW 42.30.120.

    A member of the governing body is personally liable for the $100 penalty only if he or she is aware that the meeting is in violation of the OPMA. Eugster v. Spokane, 110 Wn. App. 212, 226, 39 P.3d 380 (2002). The court must award attorney fees to a successful party. If the court finds that the lawsuit against the agency is frivolous, which is a very difficult burden for the agency to prove, the agency may recover its attorney fees and expenses. The only statutory remedy is an action filed in superior court. No agency has the authority to sanction violations or to issue regulations interpreting the "gray areas" of the OPMA."

  3. 35145. All meetings of the governing board of any school district
    shall be open to the public and shall be conducted in accordance with
    Chapter 9 (commencing with Section 54950) of Division 2 of Title 5
    of the Government Code. All actions authorized or required by law of
    the governing board shall be taken at the meetings and shall be
    subject to the following requirements:
    (a) Minutes shall be taken at all of those meetings, recording all
    actions taken by the governing board. The minutes are public
    records and shall be available to the public.
    (b) An agenda shall be posted by the governing board, or its
    designee, in accordance with the requirements of Section 54954.2 of
    the Government Code. Any interested person may commence an action by
    mandamus or injunction pursuant to Section 54960.1 of the Government
    Code for the purpose of obtaining a judicial determination that any
    action taken by the governing board in violation of this subdivision
    or Section 35144 is null and void.

    "(c) Any meeting held by a council or committee specified in
    subdivision (b) shall be open to the public and any member of the
    public shall be able to address the council or committee during the
    meeting on any item within the subject matter jurisdiction of the
    council or committee. Notice of the meeting shall be posted at the
    schoolsite, or other appropriate place accessible to the public, at
    least 72 hours before the time set for the meeting. The notice shall
    specify the date, time, and location of the meeting and contain an
    agenda describing each item of business to be discussed or acted
    upon. The council or committee may not take any action on any item
    of business unless that item appeared on the posted agenda or unless
    the council or committee members present, by unanimous vote, find
    that there is a need to take immediate action and that the need for
    action came to the attention of the council or committee subsequent
    to the posting of the agenda. Questions or brief statements made at
    a meeting by members of the council, committee, or public that do not
    have a significant effect on pupils or employees in the school or
    school district or that can be resolved solely by the provision of
    information need not be described on an agenda as items of business.
    If a council or committee violates the procedural meeting
    requirements of this section and upon demand of any person, the
    council or committee shall reconsider the item at its next meeting,
    after allowing for public input on the item.
    (d) Any materials provided to a schoolsite council shall be made
    available to any member of the public who requests the materials
    pursuant to the California Public Records Act (Chapter 3.5
    (commencing with Section 6250) of Division 7 of Title 1).

  4. MDUSD employees are members of the public and cannot be excluded!

    Government Code
    54954.3. (a) Every agenda for regular meetings shall provide an
    opportunity for members of the public to directly address the
    legislative body on any item of interest to the public, before or
    during the legislative body's consideration of the item, that is
    within the subject matter jurisdiction of the legislative body,
    provided that no action shall be taken on any item not appearing on
    the agenda unless the action is otherwise authorized by subdivision
    (b) of Section 54954.2. However, the agenda need not provide an
    opportunity for members of the public to address the legislative body
    on any item that has already been considered by a committee,
    composed exclusively of members of the legislative body, at a public
    meeting wherein all interested members of the public were afforded
    the opportunity to address the committee on the item, before or
    during the committee's consideration of the item, unless the item has
    been substantially changed since the committee heard the item, as
    determined by the legislative body. Every notice for a special
    meeting shall provide an opportunity for members of the public to
    directly address the legislative body concerning any item that has
    been described in the notice for the meeting before or during
    consideration of that item.
    (b) The legislative body of a local agency may adopt reasonable
    regulations to ensure that the intent of subdivision (a) is carried
    out, including, but not limited to, regulations limiting the total
    amount of time allocated for public testimony on particular issues
    and for each individual speaker.
    (c) The legislative body of a local agency shall not prohibit
    public criticism of the policies, procedures, programs, or services
    of the agency, or of the acts or omissions of the legislative body.
    Nothing in this subdivision shall confer any privilege or protection
    for expression beyond that otherwise provided by law.