Earlier this week, San Diego Unified school board President Katherine Nakamura said trustee Luis Acle’s fine from the city Ethics Commission would be discussed by the board with its legal counsel in a closed meeting Monday.

But an expert on California open records law said that the issue shouldn’t be discussed behind closed doors, based on the limited information Nakamura gave about the meeting. The meeting agenda has yet to be released.

Terry Francke, general counsel for the open government advocates Californians Aware, said that it the school board’s plan to discuss Acle behind closed doors “doesn’t sound like it fits any of the lawful closed sessions listed in the Brown Act,” which sets forth rules for public meetings.

“There’s no litigation involving the school district as a party that is either ongoing or threatened,” he said. If Acle faces litigation, “that’s a personal liability, not one of the district.”

And Acle’s future isn’t a personnel matter, he said.

“The Brown Act expressly and emphatically states that an elected official or a member of a legislative body is not a public employee for purposes of closed personnel sessions,” Francke said. “There aren’t that many closed session authorizations. We’re not talking about collective bargaining or employee compensation. We’re not talking about real property negotiations. And that pretty well exhausts the bases for going into closed session.”

Nakamura said she couldn’t comment on why the meeting was closed, but said the board had conferred with its legal counsel, Jose Gonzales, before deciding to hold a closed meeting. Gonzales was on vacation and unavailable for comment today.

But school district staffers looking at a tentative version of the meeting agenda said a Government Code section that allows closed meetings when an agency is deciding whether to initiate litigation would apply. What lawsuit they might file isn’t clear.

Acle’s ethics violations stem from an unsuccessful City Council run, not his campaign for school board.


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