Friday, March 24, 2006 | I hate secrets. Always have. From children whispering on the playground to confidential memos at the White House, keeping secrets is exclusionary, elitist and – when governmental agencies are involved – often illegal.
Ralph M. Brown didn’t care much for secrets either. Brown was the author of the Ralph M. Brown Act, which passed in 1953 and became California’s first Sunshine law. Brown, a member of the California State Assembly representing the Central Valley, resigned in 1961 and died in 1966.
Recognizing the danger of secrecy in government, Brown left behind a tremendous legacy, the Brown Act, which provides for substantial public access to meetings of governmental bodies.
The famous introduction reads in part: “The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
The Brown Act grants very specific exemptions to its open-meeting requirements, none of which was applicable last week when San Diego Unified School District’s Board of Education discussed in closed session the audit report on former superintendent Alan Bersin’s independent discretionary fund known as the San Diego City Schools Superintendent’s Fund for School Innovation.
So says Terry Francke, founder and general counsel for Californians Aware, a nonprofit organization that supports and defends open government, the First Amendment and the people’s right to know.
Although SDUSD trustee John de Beck claimed that the audit report, prepared by the Los Angeles-based law firm of Loeb & Loeb under a $75,000 contract, “might be a subject of litigation,” Francke rejected this justification for retreating to closed session.
“I see no legal basis for a closed session on the audit report unless litigation has been threatened,” Francke commented.
“‘Threat of litigation’ means something very specific,” Francke said, such as a written threat, a publicly stated threat or a well-documented overheard claim. “Otherwise, there is no basis for going to closed session.”
The vague idea that someone might sue is not enough for a public agency to go behind closed doors, Francke said. “That would be a violation of the law.”
Bersin said he has never threatened to sue the school district over the report.
During the March 14 closed session discussion of the audit, the school board further abused its power by deciding not to release the Bersin report to the public, nor to Bersin himself.
Francke questioned this decision as well, noting, “The same would be true for the confidentiality of the audit – no prospect of litigation, no exemption under the California Public Records Act.”
According to SDUSD general counsel Ted Buckley, school district documents “may not be disclosable for a variety of reasons, such as if it is a draft, if it falls under attorney-client privilege or if it’s a personnel matter.”
But Francke, former general counsel for the California First Amendment Coalition, said none of these reasons is valid in this case.
Firstly, withholding documents from the public, claiming a personnel matter, “is never a defense against the wishes of the person it concerns,” Francke said. An agency would only keep this kind of report secret “if disclosure would constitute an unwarranted invasion of personal privacy.”
Bersin has repeatedly asked that the audit be publicly disclosed. When the person about whom the report centers wants the report made public, the personnel exemption does not apply, Francke said.
Secondly, Francke said that “attorney-client privilege is normally waived by handing [the report] over to other agencies.” And this is exactly what the school district did, voting 4-1 to refer the audit to the Internal Revenue Service, the state Attorney General’s office and the California Fair Political Practices Commission.
Thirdly, draft documents are not exempt from disclosure unless they are in a form that is completely primitive, according to Francke. Think napkin scribblings.
Interestingly, the audit was labeled a final report by the school district until the day before the March 14 board meeting when it was reclassified as preliminary. But it was in good enough form to be sent to three other governmental agencies for follow-up action, casting doubt over the intent behind the “preliminary” label.
But even labeling the report a draft doesn’t exempt it from public scrutiny. “They may know labels, but they don’t know the law,” Francke countered.
A Waste of Public Money?
Bersin, who is facing Senate confirmation of his appointment by the governor to the State Board of Education on April 19, claims the timing of the report’s release is no accident and was engineered to coincide with the hearings.
Bersin called the school board’s actions “a waste of public funds” and “an abuse of the public trust to pursue a political vendetta.”
Furthermore, Bersin suspected that the board may have acted against the advice of counsel in referring the report to other agencies, because “no counsel of Loeb & Loeb’s quality could have validated a witch hunt of this magnitude,” he said. His suspicion was later confirmed by trustee Katherine Nakamura.
The Bersin fund, which held about $574,000 in private donations from foundations, individuals and businesses, was administered by the nonprofit San Diego Foundation from 1998 when Bersin was hired by the school district until he left in 2005. The controversial superintendent, who enjoyed 3-2 board support for most of his initiatives, was able to use the money for education purposes without approval from his school board, a fact that never sat well with his opponents.
Recently elected school board members Shelia Jackson and Mitz Lee have now joined with de Beck to create a new board majority that is decidedly anti-Bersin. Even though Superintendent Carl Cohn was hired last year amid much fanfare over “a new beginning,” hostility against Bersin and his policies remains strong.
The board hired Loeb & Loeb in December to investigate the fund and report how the money was spent. The inquiry allegedly uncovered about $44,000 – less than 8 percent of the total – in questionable expenses, though that figure is unverifiable, given that the complete report remains secret and information is being leaked out selectively.
“The school board’s refusal to make the report available to the public reveals its utter and complete emptiness,” Bersin said.
In their zeal to exact revenge on Bersin for his seven tumultuous years as SDUSD head, adversaries may be guilty of committing the same offenses they claim Bersin perpetrated – undue secrecy, top-down management and inappropriate expenditures.
The biggest problem with the Brown Act, experts say, is that it lacks teeth, despite a clause in the act that reads: “Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.”
The school district needs to stop keeping secrets, particularly when those secrets are bought and paid for with the public’s money – because secrets at school are never good, whether among children on the playground or by grown-ups in the boardroom. Release the report, and let the people judge for themselves.
Marsha Sutton writes about education and children’s issues. She can be reached at