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School board and superintendent accountability: A policy analysis regarding the implementation of the Ralph M. Brown Act

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SCHOOL BOARD AND SUPERINTENDENT ACCOUNTABILITY:
A POLICY ANALYSIS REGARDING THE IMPLEMENTATION OF
THE RALPH M. BROWN ACT
by
Craig Gerald Côté
________________________________________________
A Dissertation Presented to the
FACULTY OF THE USC ROSSIER SCHOOL OF EDUCATION
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF EDUCATION
May 2010
Copyright 2010
Craig Gerald Côté
UMI Number: 3403551
All rights reserved
INFORMATION TO ALL USERS
The quality of this reproduction is dependent upon the quality of the copy submitted.
In the unlikely event that the author did not send a complete manuscript
and there are missing pages, these will be noted. Also, if material had to be removed,
a note will indicate the deletion.
UMI 3403551
Copyright 2010 by ProQuest LLC.
All rights reserved. This edition of the work is protected against
unauthorized copying under Title 17, United States Code.
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DEDICATION
I dedicate this dissertation to the person I love most because she is my
love, my wife, my friend, and my life’s companion, Myrna. With her steadfast
patience, tenacity, tolerance, and love, I was able to make it through the doctoral
program. Her courage and strength of conviction about my abilities helped me
ride through the rough patches and gave me the courage and inspiration to pursue
and complete obtaining this doctorate from the University of Southern California
at the age of 58.
ii
ACKNOWLEDGMENTS
This momentous accomplishment symbolizes the end of a quest in my
desire to be self-actualized in education. By that I mean I have attained my life’s
dream of attaining a prestigious degree from a top university. I would like to take
this opportunity to express my gratitude to the following people, with whose
support and encouragement made this dissertation possible.
To my very special wife, Dr. Myrna Rivera Côté, for your stanch and
steadfast confidence in me and my abilities, and inspiring me to complete a major
goal in my life. Your love, understanding, and your able technical assistance and
encouragement allowed me to complete this dissertation and cry tears of joy.
To my dear mother, Edna White, whose sacrifice and career at USC made
my attending USC and attaining this degree possible.
Thank you to my comrade at arms at USC, Dr. Hasmik Danielian, who
provided me the cheerleading and constant support and friendship that helped me
push through the coursework and dissertation process.
I am most grateful to Dr. Larry Picus for being my chair. Your guidance,
patience, thoughts, reflections, insights, and feedback gave me the stability
without which I would have floundered.
iii
Dr. Dennis Hocevar and Dr. Stuart Gothold are appreciated for being
members of my committee and for providing valuable suggestions, critical
review, and ideas.
I also want to specially thank Nadine Singh for all her technical help in
guiding me through the program.
I would like to thank my classmates for their friendship and support during
our course work.
Acknowledgment and thanks are due to all those who participated in my
research, especially those four individuals who gave their time and energy from
their busy professions to help me in the interview process.
It is my distinct honor to graduate with pride in receiving a doctorate from
USC. I am proud to stand with those who make up USC’s outstanding
educational community and who make a significant difference in the education of
children, our most valued treasures.
iv
TABLE OF CONTENTS
DEDICATION .................................................................................................. ii
ACKNOWLEDGMENTS ............................................................................... iii
LIST OF TABLES ......................................................................................... viii
LIST OF FIGURES ......................................................................................... ix
ABSTRACT ...................................................................................................... x
CHAPTER 1 OVERVIEW OF THE ROBERT M. BROWN ACT ............... 1
Historical Origins of Open Access to Government Decision Making .......... 1
Historical Background in California ............................................................. 2
Systems Analysis of The Brown Act through the Easton Model ................. 5
Summary ................................................................................................. 10
Statement of the Problem ............................................................................ 11
Purpose of the Policy Analysis ................................................................... 12
Research Questions ..................................................................................... 14
The Importance of the Study....................................................................... 15
Assumptions ................................................................................................ 17
Delimitations ............................................................................................... 17
Limitations .................................................................................................. 17
Definitions of Terms ................................................................................... 18
CHAPTER 2 LITERATURE REVIEW ....................................................... 21
Orientation to Purpose and Topics .............................................................. 21
Relevant Topics Regarding the Literature Addressed in this Study ........... 23
National Perspective Regarding the Provisions of Each State’s Open
Meeting Laws .................................................................................... 23
Application and Overview of The Brown Act to School Districts ......... 26
Historical Analysis in Striking the Balance Between Public Access
and Governance ................................................................................. 30
The Brown Act: History and Scope: ...................................................... 33
Inherent Conflict of Interest Between Public Official and the Public-atLarge ..................................................................................................... 39
Survey of Current Literature that Gives Rise to the Policy Behind the
Act’s Mandates ..................................................................................... 41
v
The Effect of the Wolfe v. City of Fremont Appellate Decision: The
Brown Act as Applied ........................................................................... 44
A District Attorney’s View Regarding Enforcement of the Act on a
Particular School District ...................................................................... 47
CHAPTER 3 RESEARCH METHODOLOGY ........................................... 53
Policy Analysis by Case Method ................................................................ 57
Sample and Population................................................................................ 58
Data Collection Procedures ......................................................................... 60
Survey Format ......................................................................................... 60
Interview Format ..................................................................................... 61
Documentary Data .................................................................................. 65
Data Collection Schematic ...................................................................... 66
Data Analysis Procedures ........................................................................... 68
Ethical Considerations ................................................................................ 70
CHAPTER 4 ANALYSIS AND INTERPRETATION OF THE DATA
AND THE FINDINGS .............................................................................. 72
Discussion of Reported Data to Research Question 1 ................................ 86
Brown Act Enforcement: Balanced or Biased in Application as an
Overall Proposition ........................................................................... 86
Interview Responses Overlaid Survey Questions for Research
Question 1 ......................................................................................... 91
Brown Act Enforcement: Comparison Between Civil Versus
Criminal Enforcement Rules in the Act’s Application ..................... 94
Interview Responses Overlaid Survey Questions 17 and 19 for
Research Question 1 .......................................................................... 98
Brown Act Enforcement: Comparison Between Civil and Criminal
Rules for Willful Acts in the Act’s Application .............................. 101
Interview Responses Overlaid Survey Questions 10 to 15 for
Research Question 1 ........................................................................ 104
Discussion of Reported Data to Research Question 2 .............................. 106
Balance in Enforcement Provisions Between the Main Participants .... 106
Balance as to Provisions of the Act Broken Down by Groups ............. 108
Interview Responses Overlaid the Survey Questions for Research
Question 2 ....................................................................................... 111
Discussion of Reported Data to Research Question 3 .............................. 112
Does the Brown Act Provide Adequate Provisions for Willful
Violations: ....................................................................................... 112
Interview Responses Overlaid the Survey Questions for Research
Question 3 ....................................................................................... 114
Discussion of Reported Data to Research Question 4 .............................. 116
Ascertaining a Need for the Brown Act’s Enforcement Regulations ... 116
vi
Need to Retool the Act’s Sanctions, What Forms Would They Take,
All Participants ................................................................................ 117
Interview Responses Overlaid the Survey Questions for Research
Question 4 ....................................................................................... 120
Balance as to Enforcement Provisions of the Act ................................. 122
Need to Retool the Brown Act’s Provisions for Active NonCompliance by the Groups .............................................................. 123
Interview Responses Overlaid the Survey Questions 21-24, 26, and
28-30 for Research Question 4 ........................................................ 128
Overall Summary for All Research Questions .......................................... 131
CHAPTER 5 SUMMARY, POLICY ANALYSIS, AND
IMPLICATIONS .................................................................................... 135
Summary ................................................................................................... 135
Purpose of the Study ............................................................................. 136
Research Questions ............................................................................... 137
Methodology ......................................................................................... 138
Policy Analysis ......................................................................................... 141
Summary/Conclusion to Research Question 1 ...................................... 142
Summary/Conclusion to Research Question 2:..................................... 145
Summary/Conclusion to Research Question 3 ...................................... 147
Summary/Conclusion to Research Question 4 ...................................... 149
Key Findings ......................................................................................... 150
Summary of Position ............................................................................. 151
Reducing Violations: More Enforcement Tools Against Noncompliant Violations of the Act ...................................................... 152
Penalty Schema for Non-compliance .................................................... 154
Reducing violations: More Enforcement Tools Against Willful and
Egregious Acts ................................................................................ 156
Penalty Schema for Non-compliance that is Continuous and Active
Refusal............................................................................................. 157
Implications ............................................................................................... 159
For Balance in The Act, Past, and Present ............................................ 159
Immediate Implications ......................................................................... 159
Implications For Balance in The Act in the Future ............................... 160
REFERENCES.............................................................................................. 161
APPENDICES
APPENDIX A QUESTIONNAIRE SURVEY .......................................... 170
APPENDIX B
INTERVIEW GUIDELINE (SEMI-STRUCTURED) ...... 174
vii
LIST OF TABLES
1. Questionnaire Survey Questions 1-3 ....................................................... 74
2. Questionnaire Survey Questions 4 – 30; All Participants’ Responses .... 77
3. Questionnaire Survey Questions 4 – 30; Superintendents and School
Board Trustee Officials’ Responses......................................................... 80
4. Questionnaire Survey Questions 4 – 30; Public-At-Large and
District Attorneys’ Responses.................................................................. 83
5. Survey Questions 13, 14, and 15/Responses of Superintendents/
Board of Trustee Officials ....................................................................... 87
6. Survey Questions 13, 14, and 15/Responses of Public-At-Large/
District Attorneys ..................................................................................... 87
7. Survey Questions 17 and 19/Responses of Superintendents/Board of
Trustee Officials....................................................................................... 96
8. Survey Questions 17 and 19/Responses of Public-At-Large/District
Attorneys .................................................................................................. 96
9. Survey Questions 25 and 27/Responses of Superintendents/Board of
Trustee Officials..................................................................................... 102
10. Survey Questions 25 and 27/Responses of Public-At-Large/District
Attorneys ................................................................................................ 102
viii
LIST OF FIGURES
1. The Easton Model, Re: Brown Act, Early 1950s ........................................ 7
2. The Easton Model, Re: Brown Act, Circa 2000s ........................................ 8
ix
ABSTRACT
The Ralph M. Brown Act’s enforcement language implies striking a
proper balance between school public officials and the public at large. This study
of The Brown Act’s enforcement provisions is presented in the context of school
districts. The investigation focused on the following overarching question: Does
a policy analysis support a finding that in its application, The Brown Act
appropriately strikes a balance between the right of Boards of Trustees and school
officials to govern, and the public’s right to accountability of that governess?
This overarching question is addressed by four research questions that lead to the
following key findings.
Key Findings
1. Most participants believe that The Brown Act strikes an appropriate
balance between those who govern and those who have a right to accountability
of that governess.
2. Close scrutiny reveals that in its enforceability, The Brown Act fails to
strike an appropriate balance between the key actors: those who govern and those
who have a right to accountability of that governess.
3. California should look to the leadership of the 29 other states which
have imposed personal responsibility provisions to their “Sunshine Laws,” laws
otherwise similar to The Brown Act.
x
4. Since its inception of 1953, there has been no successful criminal
prosecution for violation of The Brown Act. As a result, this gives rise to a belief
of no true personal accountability. Knowing there is no personal culpability, it
seems that some superintendents and boards of trustees have acted with impunity,
unintentionally or consciously. Therefore, there is not sufficient accountability
for superintendents and boards of trustees.
5. Superintendents and boards of trustees have the upper hand in the
balance of power for enforceability of The Brown Act’s provisions. The public at
large and district attorneys are unable to stop egregious violations of The Brown
Act.
xi
CHAPTER 1
OVERVIEW OF THE ROBERT M. BROWN ACT
Throughout California’s history, local legislative bodies have played a
pivotal role in bringing participatory democracy to the public-at-large (California
Attorney General’s Office, 2003). The Ralph M. Brown Act (The Brown Act or
Act) was born of the mindset that several minds are better than one, and that the
best ideas emerge through debate and discussion. This study was not about the
correctness of the Act in guaranteeing the public’s right to attend and participate
in meetings of local legislative bodies. Rather, this study concerns whether the
Act strikes an appropriate balance through its enforcement provisions between its
two main participants in a school district: boards of trustees and school officials
on the one side and the public-at-large on the other (California Attorney General’s
Office, 2003). But before this study could delve into that ultimate question, a
thorough grounding in the basics of the first 50 years of the Act is necessary.
Historical Origins of Open Access to Government Decision Making
The concept of public access to government decision making is
historically rooted back to 18th century Europe. In fact, Sweden enacted the
world’s first principle of openness (“offentlighetsgrundsatsen”) in its Freedom of
the Press Act in 1766 (Freedom of Information, 2008). That law specifically
1
decreed that every Swedish citizen had the right of free access to government
documents. In that same timeframe, English politics manifested the power of free
access to the workings of government institutions. In his book, Heroes and Hero
Worship (1841), the historian Thomas Carlyle lauds the press for its ability to
advocate and frame political issues. He also credits Edmund Burke in the 1790s
with stating, “[T]urning now to the Government of men . . . Burke said there
were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat
a Fourth Estate more important than they all” (Carlyle, 1841, n.p.) It is a well
established historical fact that in medieval England dating back to the 1200s, the
political class participants consisted of the clergy, the nobility, and the middleclass commoners, or “Estates.” Thus, the historical development of the public’s
right of access to government dealings in free society countries provides a
backdrop and context for California’s sunshine laws.
Historical Background in California
In 1950s’ California, there was a growing concern by the public over
informal undisclosed meetings held by local elected officials (California’s First
Amendment Coalition, 2004). The public was upset that while California did
have the Freedom of Information legislation contained in its Constitution, Article
1 §2, nothing in this Article established a mechanical means to enforce that right.
Before The Brown Act, politics was conducted outside the purview of the public.
2
The public grew more and more concerned over these back-room-deals. These
deals were made by city councils, county boards, and other local government
bodies in informal, undisclosed meetings. These deals were done to avoid public
scrutiny and done under the guise of secret workshops and study sessions
(Wikipedia, 2007). Eventually, this concern rose to a clamor by the citizenry.
They demanded the legislative enactment of an enforcement right that mandated
all local public agencies and their officials take action openly and after having
first conducted open deliberations (California’s First Amendment Coalition, 2004;
Wikipedia, 2007).
In simple terms, the people of California wanted a voice in the making of
political decisions that affected their everyday lives. The actual formal policymaking process for the sunshine laws started with a newspaper reporter and an
attorney (California Newspaper Publishers Association, 2007). Richard “Bud”
Carpenter, an attorney for the League of California Cities, wrote the legislation
named for the assemblyman who introduced the statute enacted in 1953 known as
the Ralph M. Brown Act (California Newspaper Publishers Association, 2007).
Michael Harris, a reporter with the San Francisco Chronicle, co-wrote that
legislation. Prior to doing so, Harris wrote a 10-part series in the Chronicle on the
need for legislation that governed the meetings of local legislative bodies.
When enacted, The Ralph M. Brown Act (Wikipedia, 2007 mandated
open and public meetings by the legislative bodies of local agencies in the
3
conduct of their business. The philosophical foundation of the Act is summarized
in its first section:
In enacting this chapter, the Legislature finds and declares that the public
commissions, boards and councils, and other public agencies in this State
exist to aid in the conduct of the people’s business. It is the intent of the
law that their actions be taken openly and that their deliberations be
conducted openly.
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. (Deering’s California Codes Annotated, 2008a, Government
Code § 54950 n.p.)
California later enacted the Bagley-Keane Act of 1967. The BagleyKeane Act (California Codes, 2009a, Government Code §§11120-11132)
regulates the conduct of state government legislative body meetings. Government
Code §11120 specifically states:
It is the public policy of this state that public agencies exist to aid in the
conduct of the people’s business and the proceedings of public agencies be
conducted openly so that the public may remain informed.
In enacting this article, the Legislature finds and declares that it is the
intent of the law that actions of state agencies be taken openly and that
their deliberation be conducted openly. (California Codes, 2009a, n.p.)
Together then, The Brown Act and the Bagley-Keane Act made open access to
the deliberations and actions of state and local public officials an enforceable right
of all Californians.
4
It is interesting to note by comparison, that the federal government’s
public solicitation of information laws was enacted in the Freedom of Information
Act (FOIA) of 1966. These laws are set out in the U.S. Code, Title 5, Part I,
Chapter 5, Subchapter II, §552b (United States Code, 2009). However, it was not
until FOIA was amended in 1976 by the government in the Sunshine Act (1976),
that the citizenry gained the same access to government agency meetings that
Californians had acquired in 1953. The federal Sunshine Act stated, in pertinent
part, “every portion of every meeting of an agency shall be open to public
observation”
[5 U.S.C. 552b (b)]. However, in Natural Resources Defense Council, Inc. v.
Nuclear Regulatory Commission (2000) the federal appellate court held that the
notice and procedural requirements of 5 U.S.C. 552, et. seq., are enforceable only
if the acting government entity is a statutorily defined agency, and a gathering
occurs of a sufficient number of the subject agency’s members that meets the
statute’s definition of a meeting. This ruling applies only to federal cases.
However, the federal and state definitions of a meeting are congruent with each
other.
Systems Analysis of The Brown Act through the Easton Model
The Easton Model is a heuristic scheme or framework for political
analysis. It shows the link between the political subsystem and the remainder
5
sociological subsystems, e.g., economy, school, church, etc. (Wirt & Kirst, 2005)
as components of the model. In the Easton Model, the environment provides the
context in which the studied action took place. The stressors from other societal
subsystems generate Inputs of Demands and Supports upon the Withinputs of the
Political System (Wirt & Kirst, 2005). The actors in the Withinputs convert these
Inputs to public Decisions and Actions that are the Outputs, expected and
unexpected. These Outputs then feed back various values and resources as
interactions with society in the Feedback loop. This feedback produces stressors
on the various societal subsystems and thus the process begins anew (Wirt &
Kirst, 2005).
Figures 1 and 2 cycle The Brown Act through the components of the
Easton Model at inception and at the present time. Thus, Figures 1 and 2 present
a schematic analytically separating and categorizing The Brown Act within a
systems analysis of politics (Wirt & Kirst, 2005, p. 59). Figures 1 and 2 appear
similar to each other. However, close scrutiny of the identifiers in each figure’s
components show differences. A proper analysis of the Act lies in the details that
exist within each component at the particular time period the Act is analyzed.
Figure 1 models how and why the Act came into existence through legislation.
And, Figure 2 models how and why the Act changed through the initiative
process.
6
Environment
Early 1950s: Civil rights
movement;
Brown v. Bd. of Ed.;
Societal outcry for inclusion
in governmental actions
I
Demands
Political System
Open access
Notification
Public Voice
Gov. Acct.
State
Legislature;
Court
Decisions;
Historical
Legislation;
Govt.
Legislative
bodies below
State level, e.g.,
Boards & local
govt. agencies;
"4th Estate" media
N
P
Supports
U
T
S
Newspapers;
Public;
Advocacy
Groups;
Prior Leg.;
State Political
Reps;
Fed 1st
Amend;
CA
Constitution
Decisions &
Actions
To develop
and
promulgate
Public
Policy re:
public's
right of
access to
govt. thru
first
sunshine
law
Outputs
The Brown
Act
Outcomes
Litigation;
Nat'l trend;
Int'l trend;
Freedom of
Info Act
1966;
Further
legislation
(with inputs)
FEEDBACK
Figure 1. The Easton Model, Re: Brown Act, Early 1950s
7
Environment
Development of Govt. Acct.
Systems; CA legislation
develops by initiatives, circa
2000s
I
Demands
Political System
Open access
Notification
Public Voice
Gov. Acct.
Legislation by
Ballot Initiative;
State
Legislature;
Court
Decisions;
Boards and
local Govt.
agencies; “4th
Estate” media
govt. agencies;
"4th Estate"
media
N
P
U
T
S
Supports
Newspapers;
Public;
Advocacy
Groups;
Prior Leg.;
State Political
Reps;
Fed 1st
Amend;
CA
Constitution
Decisions &
Actions
To place
proposition
on ballot by
citizenry
Outputs
Prop 59;
Amendment
to CA
Constitution
Outcomes
Opinion of
Attorney
General;
Statutory
Amendments
to Brown
Act;
Litigation by
Advocacy
Groups;
Wolfe
decision
(with inputs)
FEEDBACK
Figure 2. The Easton Model, Re: Brown Act, Circa 2000s
8
Therefore, the Easton Model is a proper vehicle to gain understanding of how The
Brown Act eventuated and evolved in the 50 plus years of its existence. By
modeling The Brown Act, the observer is able to appreciate the nature of societal
turbulence and complexity as it relates to school districts operating as local
legislative bodies (Wirt & Kirst, 2005). In viewing each figure box, one readily
observes that what drove The Brown Act into existence (Figure 1) has a common
underlying force that has driven its evolvement in how it affects school districts
(Figure 2). That is, the citizenry inserted itself into the political process in a
manner that has forced the legislature to react to the will of the people through the
power of the Fourth Estate, legislatively through elections and the ballot initiative
process, and through the court system. In fact, through the initiative process,
Californians approved Proposition 59 in November 2004 by 83% of the voters
(Figure 2). Proposition 59 amended the California Constitution, Article 1, Section
3 (b)(2). This proposition did not provide for new rights. However, it gave
instructions to the courts that:
(2) A statute, court rule, or other authority, including those in effect on the
effective date of this subdivision, shall be broadly construed if it furthers
the people's right of access, and narrowly construed if it limits the right of
access. A statute, court rule, or other authority adopted after the effective
date of this subdivision that limits the right of access shall be adopted with
findings demonstrating the interest protected by the limitation and the
need for protecting that interest. (State Constitution, 2009, n.p.)
In other words, one can reasonably view this language as the public
instructing the courts to rethink past decisions that appear to restrict access to the
9
public, e.g., Times Mirror v. Superior Court (1991). For example, in a 2007
lawsuit against Governor. Schwarzenegger, a request was made to access the
meeting records of the Governor’s aides. The California First Amendment
Coalition (California’s First Amendment Coalition) argued that the court should
reconsider and overturn the restrictive Times Mirror case (1991). Governor
Schwarzenegger agreed to release the calendars in a pre-trial agreement that
settled that case (California First Amendment Coalition, 2004).
Summary
When the preceding is taken as a whole, the significance of a study that
examines the effectiveness of The Brown Act as the public’s tool of
accountability becomes readily apparent vis-à-vis boards of trustees and school
officials. The Easton Model demonstrates the Act’s dynamic changes brought by
the main actors involved, i.e., public officials and the public-at-large by cycling
through it on an ongoing basis. It represents the attempts by the public-at-large to
enforce its claimed right to know what, why, and how public officials conduct the
people’s business against public officials’ claimed right to carry out the business
of the people with minimal interference. This then, makes such a study relevant
and important. It is also important because of its potential to shed light through a
policy analysis on the public’s perceived ability to meaningfully hold public
10
school officials’ and boards of trustees’ actions accountable, and on public
officials perceived right to govern with minimal interference.
Statement of the Problem
Chubb and Moe (1990) state that it cannot be emphasized enough that
public schools are political and are no different than any other governmental
agency. Further, Chubb and Moe opine that if democracy is to prevail, then
democratic politics must exist. As shown by the Easton Model analysis, this
observation fully applies to boards of trustees and school officials. Yet,
democratic politics carried to its extreme creates a cacophony of problems
without accountability as one means of checks and balances. Therefore, what is
unclear in the literature is whether the Act strikes a proper balance regarding its
enforcement provisions.
There are few, if any, existing comprehensive published studies regarding
The Brown Act as a viable tool of accountability. Instead, what exists in the
current literature are isolated journal articles about the problems caused by boards
of trustees that apparently ignore the open-meeting-laws with seeming impunity
from any of the potential significant legislated consequences. Stover notes in his
article (2009) that the studied school board served as a poster child for school
governance “gone bad” (p. 15). He further states that its members so frequently
violated state ethics and open-meeting-laws that their attorney quit in frustration.
11
What is unknown from the literature, as applied to California, is the effect
The Brown Act has on exercising influence upon school boards and school
officials when governance has gone bad. Also unknown is what significant
penalties enumerated in The Brown Act are imposed for conduct that seriously
breeches the Act. These questions arise when one reads about a large southern
California school district superintendent and the school board who so actively and
consistently breeched the requirements of The Brown Act as to receive a formal
reprimand from the District Attorney (Report of the Orange County District
Attorney, 2007. Within months of that reprimand, the board of trustees violated
the Act again in a manner so strikingly similar to the first time that they again
received a formal reprimand (Martindale, 2008a). While this particular school
district may serve as the poster child for deliberate bad conduct, does this present
a case for a retooling of the Act’s enforcement provisions, especially criminal
sanctions? Or, does this particular district demonstrate that an appropriate
balance in enforcement provisions is already in place?
Purpose of the Policy Analysis
One purpose of this policy analysis was to examine whether The Brown
Act, as written, is a viable tool of accountability in the face of boards of trustees
and school officials who choose to ignore the Act’s requirements. Another
purpose was to determine whether The Brown Act, as applied, strikes an
12
appropriate balance through its enforcement procedures between school public
officials and the public-at-large. The third purpose of this focused study was to
examine the effectiveness of using The Brown Act to control the conduct of
boards of trustees and school officials who ignore the Act’s open meetings
regulations.
Given these purposes, this study attempted to accomplish the following
goals:
•
To determine whether The Brown Act, as applied, strikes an
appropriate balance between the rights of school public officials to
govern and the public’s right to accountability of that governess.
•
To determine whether The Brown Act is designed to create a
comprehensive enforcement tool for the public that is pragmatic, or
whether it was designed as a paper tiger that only shields public
officials from true accountability by the public-at-large.
•
To determine the extent to which penalties within The Brown Act are
utilized by the District Attorney’s Office.
•
To identify why District Attorney’s Offices choose particular
responses to deliberate behavior of non-compliance by a board of
trustees.
•
To determine whether utilized penalties of The Brown Act can
sufficiently curtail a board of trustee’s deliberate conduct of
13
demonstrated active violations of The Brown Act, or whether the Act’s
sanctions schema needs retooling.
Research Questions
This study sought to examine the interrelational dynamics between all
stake holders and The Brown Act. Specifically, this research looked at the
dynamics between district Attorneys, boards of trustees, and the public-at-large
regarding active non-compliance with the Act’s mandates. With this basis of
examination, this study focused on the following questions:
1. Does The Brown Act strike an appropriate balance between the right of
boards of trustees and school officials to govern, and the public’s right to
accountability of that governess?
2. Relative to school districts, does The Brown Act, as written, strike an
appropriate balance through its enforcement provisions between its two
main participants; public officials and the public-at-large?
3.
If boards of trustees and/or school officials continuously and actively
refuse to comply with the Act, does this mean there is a need to revise the
Act’s civil and/or criminal sanctions to provide meaningful
accountability?
14
4. If there is a need to revise the Act’s sanctions for active non-compliance,
what should those sanctions look like statutorily and how should those
sanctions be triggered?
The Importance of the Study
Historically, it appears that as late as the 1990s, there was a concern of a
growing trend that local boards and administrators had become politically and
bureaucratically self-interested actors who often stood in the way of real
improvement in teaching and learning (Mosle, 1997). Today, that concern is so
common that authors promulgate tactics to respond to agendas or tactics that
divert a district’s attention from the primary mandate of educating students
(Kundu, 2009). Indeed, there is a common belief that boards of trustees are
dominated by special interest groups (Education Writers Association, 2003). One
of Kundu’s tips suggests inviting association experts into the district to provide
training on board ethics or policy influence. However, the subject of this study
goes beyond a gap analysis needing to consider special interests or assess the lack
of performance in the areas of knowledge, skills, understanding, or motivation
(Clark & Estes, 2002). Therefore, this study will have importance to stakeholders
as follows:
1. The findings from this study will serve superintendents and boards of
trustees by acting as a resource tool or guide to help boards of trustees to actively
15
follow the Act’s mandates, and as a guide or tool if and when boards of trustees
actively stray from the Act’s mandates. This study will also serve as a reminder
to superintendents as to their important role in helping their boards of trustees
keep from actively running afoul of the Act’s mandates as to open-meeting
requirements.
2. The findings from this study will serve the public-at-large by providing
a knowledge base concerning The Brown Act. This will empower the public’s
ability to marshal appropriate assets under the Act to ensure a board of trustees
acts appropriately and, if necessary, to act against a board of trustees and/or
school officials who actively non-comply with the Act.
3. If warranted, the study’s findings will offer modifications to the Act.
4. The findings from this study will inform district attorneys of their key
role in commanding compliance with The Brown Act by boards of trustees and/or
school officials.
5. The findings from this study will demonstrate whether or not the
current sanction schema of the Act does foster debate and discussion in
democratically elected governing bodies, e.g., boards of trustees and school
officials with the public-at-large.
6. The findings from this study will provide some avenues for future
research.
16
Assumptions
This study assumed that the data collection techniques such as interviews,
surveys, and questionnaires would provide valid and adequate data for the
purposes of this study. This study also assumed participants would respond
candidly and honestly to questionnaires, interview sessions, and surveys. This
study also assumed that it is possible to draw a policy analysis conclusion from
the data gathered.
Delimitations
The sampling for this study was purposeful and selected by the researcher
based on the participants’ willingness to cooperate fully. Further, the participants
may have a preconceived bias regarding The Brown Act’s necessity and utility.
Limitations
Limitations on this study existed because:
1. The study used data collected in case study format. Therefore, the
inherent limitations for using this type of qualitative and purposeful datagathering device will prevail.
2.
Data collected was gathered within a context supportive of the
postulation that the Act is designed to appear to have strong remedies, or that the
remedies are underutilized.
17
3.
Data collected was gathered within a purposeful study whose participant’s
may have had their own bias regarding the appropriateness of The Brown Act’s
remedies.
4. There may be difficulty in collecting accurate and unbiased verbal
interpretations, both in the understanding of the questioning and in the
understanding of the answers, to the challenges within The Brown Act as enacted
and as applied.
5. The findings, analysis, conclusions, and recommendations may be difficult
to generalize to other districts and counties not part of this focused study.
Definitions of Terms
Accountability
Accountability is defined within the accountability movement as not so
much about achieving quality, as it is about demonstrating responsible use of
public funds to achieve politically desired results (Patton, 2002).
Burke (2004) holds that accountability imposes six demands on officials
for government or public service organizations. That is, they must have used their
powers properly; they must show they are working to achieve the mission or
priorities set for their office; they must report their performance, for power is
opaque, accountability is public (Burke, 2004); they must show they are working
for public stewardship’s components of efficiency and effectiveness that require
18
accounting for the resources used and outcomes created (Shavelson, 2000); they
must ensure the quality of the programs and services produced; and, they must
show that they serve public needs (Burke, 2004). Burke then gives the example
that,
In democracies, elected officers such as governors and legislators are the
agents, while the ‘general public’ plays the dual role of both principal
(delegating the authority) and beneficiary (receiving the ultimate rewards).
(Burke, 2004, p. 2)
He further notes, “delegation of authority down the chain of government
agencies adds to the confusion about who is accountable to whom” (Burke, 2004,
p. 2). Burke elaborates that “outward accountability” means responding to
external clients, stakeholders, supporters, and in a democratic society, ultimately,
to the public-at-large, e.g., political accountability (Burke, 2004).
Finally, Webster’s College Dictionary (2003) defines accountability as
“responsible for giving an account (as of one’s acts); (and) answerable
(accountable to one’s superiors) (p.7).”
Black Letter Law
The law as written in statutes contained in the California Codes. Letter of
the law is its actual implementation, thereby demonstrating that black letter law
are those statutes, rules, acts, laws, provisions, etc., that are or have been written
down, codified, or indicated somewhere in legal texts throughout the history of a
specific state law (Wikipedia, 2009a).
19
Paper Tiger
A person, group, nation, or thing that has the appearance of strength or
power but is actually weak or ineffectual (Dictionary.com, 2009)
Policy Analysis
Policy analysis is a social and political activity (Bardach,2005). The
subject of the analysis is the lives and well-being of the public-at-large. Further,
the policy analysis process and results involve synthesizing the viewpoints of
other professionals and interested parties. Viewpoints represent beliefs and
desires that form the construct for the vision of each person’s world according to
Bevir, Rhodes and Weller (2003). At its basics then, policy analysis is about
beliefs and desires of the main players in the process reflective of their own
constructs of the world.
20
CHAPTER 2
LITERATURE REVIEW
Orientation to Purpose and Topics
This chapter serves as a review of the literature on The Brown Act as it
relates to the research questions previously presented. This literature review also
serves as the foundation for the evolution of The Brown Act from inception to
present day as developed from the particular facets set out below. These facets
reflect the inherent conflict between boards of trustees and school officials’ right
to govern and the public’s right to access the actions of those who govern them.
The first focus of this chapter is on the literature concerning the research
question of balancing governance versus access as set out in The Brown Act.
While a limited amount of literature exists on the policy analysis of the Act’s
balancing schema, there is virtually no published research that addresses the
remaining research questions. Therefore, this study was seminal in nature and
foundational for future inquiries into this study’s focused subject matter.
The second focus of this chapter is a synopsis of The Brown Act. Without
this explanation of the Act, this study has no meaning as to the importance of the
overarching research question and sub-questions. Further, this synopsis explores
the literature on what and how public officials are taught governance in the face
of the Act.
21
The last focus is the present state of The Brown Act in application given a
certain court case. To foreshadow that section, this particular case potentially
stands as the exception that swallows the whole of the intent of the Act. The
literature reveals the legislative action that has occurred since that court decision
in view of the overarching research question and the sub-questions. This then,
influenced the research methodology used to gather the data that lead to the
conclusions made in the final chapter.
These three foci are discussed below through relevant topics. These topics
cover the existing literature by examining the following: (a) A national
perspective regarding the provisions of each state’s open-meeting-laws; (b) an
application and overview of The Brown Act in California; (c) an historical
analysis of California’s determination to strike the balance between public access
and governance; (d) the Act’s history and scope; (e) the inherent conflict of
interest between public officials and school officials, and the public-at-large; (f) a
survey of the literature that gives rise to the policy behind the Act’s open meeting
mandates; (g) the effect of the Wolfe v. City of Fremont (2006) appellate decision;
and, (h) a district attorney’s view regarding enforcement of the Act. These
particular topics are presented because they provide a framework of
understanding why this study is important. Further, the order of discussion
provides a scaffolding for understanding the data presented in the study and the
conclusions drawn from that data.
22
Relevant Topics Regarding the Literature Addressed in this Study
National Perspective Regarding the Provisions of
Each State’s Open Meeting Laws
In 1952, Alabama was the first state to put into statute an open meeting
requirement applicable to state and local governmental bodies (Open Meeting
Statutes, 1962). Ten years later, 26 states passed similar laws. Further, passage
of open-meeting-laws throughout the 50 states has neither been immediate, nor
uniform.
By 1976, every state and the District of Columbia had passed openmeeting-laws that legislated the public’s rights of access to school boards and
other public legislative bodies (Berla & Hall, 1989). In their report, Berla and
Hall (1989) state that the public in each community should involve itself in the
educational policy making process because nowhere are the stakes higher. Yet, it
has been shown that public access to school-board-meetings is frustrated in many
subtle ways. While there is often a need for confidentiality in non-public
executive sessions for individual student matters, these executive sessions are
abused by lining up votes before going public or avoiding public testimony on a
controversial issue. Berla and Hall (1989) note that these statutes are not widely
known or enforced. In fact, they equated violations of the open-meeting-laws to
“the most violated law outside of jaywalking” (Berla & Hall, 1989, p. 9).
23
Because of this, the National Committee for Citizens in Education (NCCE) (Berla
& Hall, 1989) championed the rights of citizens by involving themselves in public
education governance. To that end, the study authored by Berla and Hall came
about because NCCE could not find any up-to-date compilation of states’ openmeeting-laws and found no references that focused on the 15,000 or so local
school boards that existed in the country in 1989.
In 1998, the NCCE conducted its own survey. The data collected from all
50 states and the District of Columbia served as the factual basis for their
handbook (Berla & Hall, 1989). Each chief state school official was asked to
provide information as to whom citizens should contact for more information or
to file a complaint upon a belief that the open-meeting-laws were violated by the
school board. The findings from NCCE’s survey were that there were four
common elements that allow the system regarding open meetings to break down.
These elements were: vague requirements for compliance; obtuse language; too
many exemptions from open meeting requirements; and complex procedures for
citizens to participate or have redress.
According to Berla and Hall (1989), the purpose of open-meeting-laws is
to guarantee that public bodies conduct the public’s business in public. Yet,
according to these authors, “open-meeting-laws are designed to attack the latter”
(Berla & Hall, 1989, p. 14). They noted that a statutory declaration of legislative
intent to ensure full participation of the public in the process of government can
24
be quickly short-circuited by a list of 15 or more subjects which are exempted
from the open meeting rule. “High-minded philosophy breaks down in practice
when laws are laced with generalities . . . [such as] closed meetings may be held
for unspecified ‘exceptional circumstances’” (Berla & Hall, 1989, p. 14). They
note that boards have historically found ways to circumvent open-meeting-laws
through “serial” or “rotating” meetings that consist of a number of conversations
between or among a few board members at a time (Berla & Hall, 1989, p. 16).
Such meetings may occur by “chance,” or by meeting at an inconvenient time or
place, or in a room too small to accommodate the public. They may also take the
form of dinner meetings that are technically open but minimally announced and
designed to make an observer feel awkward, or by charging an access fee to
attend (Berla & Hall, 1989m p. 16).
A 1986 survey conducted by the Institute for Educational Leadership
found that the surveyed legislators believed open access laws interfered with their
work (Berla & Hall, 1989). Other anecdotal evidence found that the attitude was
that straw votes should be taken in executive session until a consensus was
reached, with the actual unanimous vote taken in open session.
If you want to keep the public, and the school district employees, feeling
comfortable and working cooperatively with everyone on the board, they
should not know who voted which way originally. That would be
counterproductive and would send the wrong message. (Berla & Hall,
1989, p. 19)
25
According to Berla and Hall (1989), whatever doubts the public has
regarding the conduct of boards of education is not greatly shared by the
judiciary. Most states have laws that allow for injunctions, or writs of mandamus
to have illegal actions declared null and void. Some states even have criminal
charges or levying fines, but “soft enforcement” or slap on the wrist has often
been the rule (Berla & Hall, 1989, p. 20).
The results of NCCE’s survey revealed that California was only 1 of 22
states (including the District of Columbia) that does not impose fines for noncompliance; 29 states do impose fines as sanctions (Berla & Hall, 1989). It is also
interesting to note that California allows for executive sessions in at least five of
the six areas surveyed, a trait it has in common with 29 states, including the
District of Columbia. The surveyed areas were: personnel, legal advice, student
discipline, real property transactions, labor negotiations, and safety/security). It
appears that this survey is the only one of its kind since this researcher could find
no other recent literature similar to the material presented above. Nonetheless,
this literature serves as a precursor to the paradigm in California’s determination
to strike a balance between public officials and the public-at-large.
Application and Overview of The Brown Act to School Districts
This overview of the Act is best observed through the filter of opposing
claims. One side holds that 50 years after the Act, it still suffers from its
26
unfulfilled promise of enforcement because of court decisions and government
officials’ efforts to block access to records (Wikipedia, 2007). The other side
proclaims that the Act, once simple (686 words), is now overly complicated
because of legislation driven by the press (California’s First Amendment
Coalition, 1998; Stein, 1998; Wikipedia, 2007).
Government Code § 54952 together with Government Code § 54953
(Kronick, Moskovitz, Tiedemann, & Girard, 2007) define the type of government
entities subject to The Brown Act and mandate what these entities can and cannot
do. Legislative bodies are identified as governing school boards, regional
occupational programs, joint powers agencies, charter schools, and county offices
of education. It also includes commissions, committees, boards or other bodies of
a local education agency (LEA), permanent or temporary, and decision-making or
advisory created by resolution or other formal action of the legislative body.
Further, school-board-meetings are bound by two sets of rules. The first is The
Brown Act of 1953 (Wikipedia, 2007, Government Code §§ 54950 through
54963, Title 5, Division 2, Chapter 9). The second is the Education Code §§
35140 through 35149 (California Law, 2009, Title 2, Division 3, Chapter 2,
Article 3). Under Government Code § 54953 and Education Code § 35145, all
meetings of a local agency (school board) shall be open and public. Education
Code § 35146 does, however, specifically allow and mandate closed meetings of
the school board for certain statutorily announced matters (Kronick, Moskovitz,
27
Tiedemann, & Girard, 2007). That exception notwithstanding, a school board
must still announce what subject matter it is undertaking in a closed session and
then report out in public the vote on each matter voted upon in closed session
(Kronick, Moskovitz, Tiedemann & Girard, 2007).
In the Act, the legislature promulgated a schema of penalties and remedies
for violation of the open-meeting-laws. The available penalties and remedies are
civil or criminal in nature. If the violation is sufficiently active so as to meet the
requisite showing for proving criminal intent in the action taken, the violator can
face criminal misdemeanor penalties. A conviction cannot occur unless there
exists legally sufficient evidence that the violator intended to deprive the public of
information that the member knew, or had reason to have known, the public was
otherwise entitled to receive (Deering’s California Codes Annotated, 2008a;
Wikipedia, 2007). The Act defines action taken to include a collective decision,
commitment, or promise by a majority of the members of a body (Wikipedia,
2007, Deering’s Annotated Codes, 2008a, Government Code § 54952.6).
Civil remedies available in the Act are injunctive, mandatory, or
declaratory relief (Wikipedia, 2007, Government Code § 54960). Under
Government Code § 54960.1, a civil remedy is also available to the court to void
past offending acts of the legislative body. The Act, in Government Code §
54957, permits a citizen to bring a civil law suit against an LEA in a Strategic
Lawsuit Against Public Participants (“SLAPP”). When an LEA is faced with a
28
SLAPP, it can seek protection under the anti-SLAPP statute, Civil Code § 425.16
(Deering’s California Codes Annotated, 2007). Specifically, this statute allows an
LEA to bring a special motion to strike a law suit in which the plaintiff is unlikely
to prevail (Deering’s California Codes Annotated, 2007).
A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that the plaintiff
will prevail on the claim. (Deering’s California Codes Annotated, 2007,
n.p.)
However, prior to filing a civil action, a complaining person must fulfill
certain prerequisites. Essentially, that person must file a demand to the school
board to cure or correct the violation within a certain timeframe (Government
Code § 54960.1(c)). Depending upon the particular statute forming the basis for
the complaint, the complainant has either 30 days or 90 days to make that written
demand to cure or correct (Wikipedia, 2007, Government Code § 54960.1(c)).
Further, a complainant can then only legitimately file a law suit if the school
board ignores or refuses to cure or correct the violation. The complainant then
has 15 days from the date of receipt of the school board’s refusal to cure or
correct, or 15 days after the expiration of the 30-day period to cure or correct,
whichever provides the sooner date (Wikipedia, 2007, Government Code §
54960.1(c)).
29
Historical Analysis in Striking the Balance Between
Public Access and Governance
In 2003, the California Attorney General (California Attorney General’s
Office, 2003) issued a Pamphlet to The Brown Act. The Pamphlet recites the
provisions of the Act annotated with the Attorney General’s explanation for each
provision of the Act. Under “Purpose and Scope” of the Act, the legislature stated
that the purpose of the Act was a “determination of how the balance should be
struck between the public access to meetings of multi-member public bodies on
the one hand, and the need for confidential candor, debate, and information
gathering on the other” (California Attorney General’s Office, 2003, p.1). The
Pamphlet further states that the California legislature established a presumption in
favor of public access. That said, the Act also contains specific instances as
exempted from the open meeting requirements where there is a demonstrated
need for confidentiality. In addition, the Pamphlet (California Attorney General’s
Office. 2003) includes available civil and criminal remedies as sanctions for noncompliance with the Act. Therefore, this topic’s discussion runs from a historical
view through the present regarding a determination of how the balance should be
struck. However, a discussion of this subject must begin with how the principal
actors, public officials, and the public-at-large, attempt to frame this
determination of striking the balance.
30
Private sector writings published prior to the Pamphlet focused on an
explanation of the plain language of the law. One such example is a law review
article from 1966 by Blum. This literature dealt with a policy analysis of the
Act’s provisions that “may turn on a delicate balance of interests” (Blum, 1966,
pp. 1650-1680). This treatment attempted to answer how non-compliance
provisions should trigger certain counter actions. Hence, this work foreshadowed
the Attorney General’s Pamphlet to the Act. That said, Blum’s law review article
examined only civil remedies available to the public for non-compliance by
public officials, and did not address the criminal sanctions’ provisions. In other
words, the public-at-large gained knowledge from Blum about how to use the
Act’s civil remedies to strike the balance favorable to them.
Hence, from the earlier literature, one observes an instruction to the
public-at-large about the rights that exist under the Act. During this time period,
the literature defined particular provisions and mandates of the Act through the
civil court cases that arose from litigation. This power struggle, by way of
litigation over definitions contained in the Act provided, and still provides, the
determination of how the balance should be struck between public access and the
need to govern virtually unfettered by public access.
This power struggle exists just as strongly now as before. What follows is
an anecdotal example that gives life to the term striking the balance. On July 22,
1998, a city attorney remarked at a League of California Cities’ Mayors and
31
Council Members Executive Forum Ethics session, “Hey, does anyone here give a
real damn about the Brown Act?” (California’s First Amendment Coalition, 1998,
n.p.; Stein, 1998). According to Markman, a city attorney for six cities, the Act’s
requirement that public officials conduct their business in public simply failed to
comport with the government’s system of getting business done. He faulted the
Act, “not the undemocratic abuses of government power it was intended to
reform,” for its failure to be taken seriously (California’s First Amendment
Coalition, 1998, n.p.; Stein, 1998). Markman stated that the Act, when enacted,
was simple (686 words) and is now complex (California’s First Amendment
Coalition; 1998; Wikipedia, 2008). He blamed legislation brought about by
litigation from the newspaper lobby as the reason (California’s First Amendment
Coalition, 1998; Stein, 1998). Markman then made the most telling comment of
his entire speech. He told his audience they had little to fear from criminal
prosecution because in 45 years of the Act’s existence (as of 1998), only three
criminal cases were brought to trial, and all were unsuccessful. Essentially what
Markman was telling his audience was that public officials should not let public
access get in the way of conducting business because there are no real
repercussions. Even today, such lack of criminal prosecution occurs as evidenced
by the District Attorney of Orange County’s refusal to prosecute any member of a
particular board of trustees despite repeated written findings of deliberate
32
violations of the open meetings provisions of the Act (Martindale, 2008a); Report
of the Orange County District Attorney’s Office, 2007).
What one should take from this topic, then, is that the literature is dynamic
and unsettled as to whether the Act’s purpose has had a determination of how the
balance should be struck between access and governance.
The Brown Act: History and Scope:
Without repeating the detail of the historical background of the Act
previously chronicled, in 1953 the California legislature enacted The Ralph M.
Brown Act (Deering’s California Codes Annotated, 2007). The Act came into
existence in response to the public’s demand for an enforcement tool that gave
life to their constitutional right of access to government acts. The Act required
open and public meetings by the legislative bodies of local agencies in the
conduct of their business. The philosophical foundation of The Brown Act is set
forth in Government Code §54950 as a declaration of public policy (California
Attorney General’s Office, 2003). Government Code §54950 declares that public
commissions, boards and councils and the other public agencies in California
exist to aid in the conduct of the people’s business. Further, the Act’s intent is for
these local government bodies to take action openly and their deliberations take
place openly (Deering’s California Codes Annotated, 2008b). That statute also
specifically declares that the citizens of California do not yield their sovereignty
33
to the government agencies which serve them. Further, that in delegating
authority, the people deny their public servants the right to decide what is good
for the people to know and what is not good for them to know. And, the people
insist on remaining informed as a means to retain control over the instruments
they have created (Deering’s California Codes Annotated, 2008b).
The California legislature announced in Education Code §35145
(Deering’s California Codes Annotated, 2008b) that the Brown Act applies to all
school-board-meetings which must be open to the public absent certain limited
exceptions (Kronick, Moskovitz, Tiedemann & Girard, 2007). That means all
actions taken by the governing board at all meetings shall be recorded in minutes
and the minutes shall be available to the public. In addition, an agenda of all
meetings shall be posted in accordance with the Act. Any member of the public
may file a lawsuit in court to have any action taken by a governing board declared
null and void for violation of the Brown Act or Education Code §35144
(California Law,
).
Indeed, such occurred in the California appellate court in McKee v.
Orange Unified (2003). That court interpreted the interested person language of
the Act and Education Code at the request of an activist citizen. The McKee court
held that a member of the public need not live within the school district’s
jurisdictional borders as a necessary prerequisite to rightfully bring suit against
that school board, which McKee had done.
34
The Government Code in §54962 (Deering’s California Codes Annotated,
2008c) mandates no closed session may occur by any legislative body or local
agency except as expressly allowed in certain statutes, including any provision of
the Education Code. Those applicable exceptions are for an applicant’s license or
renewal by an applicant having a criminal record (Official California Legislative
Information, California Law, 2006a, Gov. Code §54956.7); pending litigation
(Gov. Code § 54956.9); personnel exception (Gov. Code §54957); labor
negotiations (Gov. Code §54957.6 (Official California Legislative Information,
California Law, 2006a); consideration (deliberation only) of student discipline
(Deering’s California Codes Annotated, 2008, Ed. Code §§35146, 48912 and
48918); and, review of contents of student assessment instrument from a
statewide testing system (Official California Legislative Information, California
Law, 2006b, Gov. Code §60617; Kronick, Moskovitz, Tiedemann & Girard,
2007).
The court in Luca v. Board of Trustees (1971) announced that if a board
has a right to consider a matter in closed session, it may also act upon such matter
in closed session (Kronick et al). That decision notwithstanding, other cases have
required certain matters discussed in closed session to be acted upon in open
session. In addition, there are certain exceptions for which there exists no
requirement to report out what actions took place in closed session and the vote or
abstention of every member. One such exception is collective bargaining as set
35
out in Gov. Code § 3549.1 (Deering’s California Codes Annotated, 2008d). That
said, Government Code § 54957.1 does set out the required language for a public
report on a closed session action (Official California Legislative Information,
2006c).
The court in Travis v. Board of Trustees (2008) established a “bright line”
that clearly identifies what personnel matters are open session items and what
items are closed session items. Simply put, agenda items involving hiring
decisions; return from leave of absence; discipline or dismissal of an employee;
personnel evaluation; accusations made against an employee; and, fitness of an
employee to return to work, all require the board of trustees to meet in closed
session. Agenda items that require the board of trustees to meet in open session
are matters not involving terms and conditions of employment; issues regarding
how to manage public relations from a return to work by a particular employee;
policy concerns regarding compensation packages; salary issues (as a general
rule) and similar issues (Travis v. Board of Trustees, 2008). In fact, public
disclosure of a closed session item can result in a court decision that imposes
severe civil sanctions for invasion of constitutionally protected due process rights
and statutorily protected confidentiality rights of an employee (Travis v. Board of
Trustees, 2008).
One example of how a large school district used a technical exception to
escape liability for invasion of constitutionally protected rights of an employee
36
played out in the 2007 court case of Morrow v. Los Angeles Unified School
District. In that court case, the court found that the superintendent’s statements at
a news conference that excoriated the site principal’s lack of proper action in a
school riot failed to rise to the level of disciplinary action within the personnel
exception of the Act (Morrow v. Los Angeles Unified School District, 2007).
In another case, the court in Carlson v. Paradise Unified School District
(1971) interpreted Government Code §54954.2’s requirement that agendized
items in both open and closed sessions need only have a brief general description.
However, that general description of agendized items must be in enough detail so
the general public can ascertain the nature of the business undertaken (Kronick et
al., 2007, p. 23). Notwithstanding that requirement, closed session items must
comport with the confidentiality strictures that are imposed by privacy rights laws
and confidentiality laws. To accomplish this, a school official need only follow
the “safe harbor” language set out in Government Code § 54954.5 for each
particular type of item needing to be agendized in a closed session (Official
California Legislative Information, 2006d).
Failure to comply with the mandates of the Act could result in civil or
criminal penalties. The civil penalties are contained in Government Code §54960
(Kronick et al., 2007). The criminal penalties are set out in Government Code
§54959 (Kronick et al, 2007). The district attorney, or any interested person, can
bring a civil action (lawsuit) under Government Code §54960.1 to stop, or prevent
37
violation, or threat to violate the Act; to determine applicability; to determine
validity of action, or rule, by a board of trustees; or compel a board of trustees to
tape record closed sessions. However, only a district attorney can bring a
criminal action against board members. Furthermore, Government Code §54959
(Official California Legislative Information, California Law, 2006e) specifies that
criminal penalties are available only if there was a meeting of the board; there was
action taken in violation of the Act; and, the board member(s) intended to deprive
the public of information that the member(s) knew, or had reason to know, that
the public was entitled to receive under the Act. The required element of a person
having the intent to do the act makes this a specific-intent crime which takes a
high-level of proof. If found guilty of the specific-intent crime set out in
Government Code §54959 (Official California Legislative Information, California
Law, 2006e), the violation is punishable as a misdemeanor. Last, should a
member of the public successfully conclude his/her lawsuit alleging Act
violations against a board of trustees, the trial court can also award court costs and
reasonable attorney’s fees in favor of that member of the public (Kronick et al.,
2007). It is observable from this topic’s discussion that the literature on The
Brown Act is driven by litigation, not research.
As discussed above, boards of trustees must comply with the Act’s
mandates or face the possibility of civil and/or criminal sanctions. Therefore,
board members need training in the intricacies of the Act. While the principle of
38
the Act seems straight forward and simple relative to open-meeting mandates, one
finds great complexity in application as demonstrated above. Literature exists for
board members to learn about the Act from three main sources. One is the
California School Boards Association (CSBA). CSBA is a statewide organization
whose members are the state’s school boards and school executives. That
organization offers text materials such as The Brown Act (Kronick, et al., 2007)
and seminars. Another source for literature is a school district’s associated county
office of education’s superintendent of schools such as in Orange County and Los
Angeles County. These two particular counties offer seminars and guides to learn
about the Act. The third is from private counsel knowledgeable in the Act. There
is an organization of private school attorneys who belong to the California
Council of School Attorneys. Members of this organization are likely candidates
to use as a source for learning about the Act.
Inherent Conflict of Interest Between Public Official
and the Public-at-Large
In the face of the Act, government officials manage to find loopholes in
the law, allowing them to make key governmental decisions behind closed doors
without input or knowledge of the public (Mallett, 2008). There is nothing new
about this given other research previously stated. Indeed, Markman, an attorney
for six California cities, stated he is often called upon to devise clever ways to
39
allow officials to conduct public business behind closed doors (California’s First
Amendment Coalition, 1998; Stein, 1998). He bragged that he picked up one
account because he told the account that he was very clever about circumlocuting
the Act. He then cited the ability to discuss real property negotiations in closed
session and that the term real property had great elasticity. Markman also opined
in his presentation, “Ethics in City Hall: Practical Answers for Tough Situations,”
(California’s First Amendment Coalition, 19980; Stein, 1998) that at least two
council members should meet with a group because both could say no
commitment was made to any decision. He further advised that they (public
officials) can meet with their colleagues without violating the open meetings law
if they do not commit to a position. He reasoned that the only time you violate
the Act is when a consensus is made at meetings which occur outside the council
meeting or in telephone conversations. He then made a telling statement with the
rhetorical question, who ever is going to admit that (Stein, 1998)? However
staggeringly bold Markman’s statements were to the public and watchdog groups
such as California First Amendment Coalition, his opinion merely foreshadowed
an appellate decision made 8 years later (California’s First Amendment Coalition,
1998; Mallett, 2008).
The appellate court in Wolfe v. City of Fremont (2006) specifically held
that absent a collective concurrence, public officials could hold discussions
outside publicly noticed meetings without violating the serial meeting restructure
40
of the Act. Given Markman’s presentation in 1998, and how well it was received
by its audience of public officials, a question arises. Is the Wolfe case the
exception that swallows the whole of the intent of the Act, or does it merely
provide a safe harbor or loophole for public officials to conduct the public‘s
business out of the public’s view or knowledge? The answer, of course, is
determined by what side of the fence you sit on. This, in turn, leads the
discussion here back to at least one of the policy analysis goals of this study. To
wit, this study hoped to determine with research whether or not the Act strikes an
appropriate balance through its enforcement provisions between public officials
and the public-at-large.
Survey of Current Literature that Gives Rise to
the Policy Behind the Act’s Mandates
As demonstrated by Markman’s presentation, public meetings are attacked
as useless democratic rituals that lack deliberative qualities and fail to give
citizens a voice in the policy process (Adams, 2004). In his article, Adams
explores the question, “Do public meetings have a role to play in fostering citizen
participation in policy making?” (p.43). His ultimate conclusion is yes, but as a
complement to deliberate political structures. In his analysis, he voices criticisms
and critiques of the present system.
41
There is a body of critics, as represented by the League of Cities, which
would agree with Adams’ critique that public meetings are a hollow ritual that
merely provide the façade of legitimacy (Adams, 2004; California’s First
Amendment Coalition, 1998; Stein, 1998). But Adams sets out the counter
argument that public meetings serve an important democratic function by
providing citizens with the opportunity to express to officials their thoughts,
influence public opinion, attract media attention, set future agendas, delay
decisions, and foster communication with the community-at-large. Therefore,
meetings are the tool that the public uses to achieve political objectives (Adams,
2004).
Another critique holds that the public’s tool of public meetings is ill-suited
for promoting deliberations or persuading officials to change a vote on a specific
issue. But according to Adams, meetings provide the public with a venue to
achieve political goals. Further, meetings can enhance the political weight of the
public and as a result, improve governmental responsiveness to its constituents
(Adams, 2004).
Adams notes that in recent times, many scholars have argued for a greater
extent and quality of the public’s involvement in policy making (deLeon, 1995,
1997; Dryzek, 1990; Fischer, 1993; King, Feltey, & Susel, 1998; Roberts 1997;
Schneider & Ingram, 1997). These scholars contend that the system needs to
develop structures and institutions to provide citizens with effective opportunities
42
to participate. Adams points out that 97% of cities participating in a survey used
public meetings as a strategy for dealing with citizens (Berman, 1997). Yet the
critique of these participants, academics, and governmental officials alike was that
citizen comments do not influence policy outcomes (Checkoway, 1981; Cole &
Caputo, 1984). Hence, their view is that meetings are mere democratic rituals that
provide a false sense of legitimacy to legislative outcomes.
Again, Markman and the League of Cities hold that requiring public
officials to conduct business in public simply fails to recognize the way
government business is accomplished (California’s First Amendment Coalition,
1998; Stein, 1998). Indeed, in 2007, California’s Governor Schwarzenegger
agreed with that perception when he cited the “impractical standard for
compliance” as a basis for vetoing Senate Bill 964 that would have closed the
Wolfe loophole (Mallett, 2008, p. 1087).
Another critique noted by Adams (2004) about public meetings is the
restrictor that prevents public officials from engaging the other participants--the
public--in dialogue. This inability to engage in dialogue to attempt to change the
board of trustees’ opinions shows that public meetings are a poor mechanism for
deliberation (Checkoway, 1981; Kemmis, 1990; King, Feltey, & Susel, 1998).
However, that critique is overcome when meetings are held at convenient times
and are well advertised to allow for a representative sample of the public to
attempt to influence policy (Chess & Purcell, 1999; Gormley, 1986; Gundry &
43
Heberlein, 1984; McComas 2001). This is accomplished by providing
information, a showing of support, shaming officials for disagreeable actions,
requesting agenda setting of certain items, influencing delay on matters to be
decided, networking with the community at large, and, influencing votes by use of
the previous six actions (Adams, 2004).
Therefore, to that body of literature which critiques meetings as simply
obstacles for public officials doing their jobs, Adams answers with a body of
literature that speaks in support of meetings as a tool. The question remains then,
did the Wolfe decision tilt the argument one way or the other?
The Effect of the Wolfe v. City of Fremont Appellate Decision:
The Brown Act as Applied
According to the California Attorney General, a serial meeting is a series
of communications, carried on by less than a quorum (majority) of the legislative
body, but when taken as a whole, involves a quorum of that legislative body
(Mallett, 2008). There are two kinds of serial meetings--hub-spoke and daisychain. When one board member, or representative of the board, meets or contacts
other members of the board to discuss business or a transaction, that is the hub
version. When one member calls another member of the board to discuss
business, and that second member calls a third to discuss that previous
conversation, that is the daisy-chain version (Mallett, 2008).
44
Government Code §54952.2(a) (Deering’s California Codes Annotated,
2008a) of The Brown Act defines a meeting as any congregation of a majority of
the members of a legislative body at the same time and place to hear, discuss, or
deliberate upon any item that is within the subject matter jurisdiction of that
legislative body or local agency to which it pertains to develop a collective
concurrence (Mallet, 2008). The California Attorney General and the courts have
held that serial meetings violate the Act whether the meeting was to make a
decision or to deliberate upon public business (Mallet, 2008).
The Wolfe decision interpreted the Act’s provision banning serial meetings
to develop a collective concurrence to mean that where the members’
communication is not used to develop a concurrence as to action to be taken, there
is no violation of the Act. Mallet opines that doubt exists as to whether all serial
meetings are prohibited. This means that under Wolfe, a party litigant has no
violation claim against a legislative body unless the party can show that the public
officials who met came to a collective concurrence in secret.
According to the Attorney General, using serial meetings (seriatim
meetings) by the local agency effectively excludes the public from all decision
making because the public meeting served merely as a “crystallization of secret
decisions to a point just short of ceremonial acceptance” (Mallet, 2008, pp. 108384). According to the California Constitution, as amended, the courts are to
interpret the Act broadly, not narrowly as to its provisions. Here, the Wolfe court
45
narrowly construed the ban against seriatim meetings to when there is a collective
concurrence only (Mallet, 2008).
And so the literature has come full circle back to the remarks of Markman
in 1998 about informal meetings that end in agreements, and who is ever going to
admit that (Stein, 1998)? Further, Markman asked a rhetorical question of does
anyone here think two councilmen or three haven’t committed to go a certain way
on an issue other than at a council meeting. Whether they’re at coffee or they’re
having phone calls” (Stein, 1998). It seems from the literature that the Wolfe
decision created a loophole that potentially undoes the intent of The Brown Act,
the California Constitution, as amended, and previous court decisions. Yet, failed
Senate Bill 964, which attempted to gap the Wolfe loophole, stands as its own
literature that the executive branch of California has spoken in support of both
Markman’s remarks as well as the fear expressed by Mallet (2008). The language
of that bill’s veto is clear when it states that the bill contained an “impractical
standard for compliance” and that the Governor called for a better way to resolve
the “problem of serial meetings [resulting] in public decisions” (Mallett, 2008, p.
1087). The offending language referred to by the Governor prohibited only
communications that “discuss, deliberate, or [take] action on any item of
business” (Mallett, 2008, pp. 1087-88).
What the reader should take from this section is, once again, that the
literature is fractured and unclear. It is unclear as to whether the Act has made a
46
determination of how the balance should be struck between public access to
meetings of multi-public bodies on the one hand, and the need for confidential
candor, debate, and information gathering on the other (California Attorney
General’s Office, 2003). It leaves open for discussion the question of whether the
Act strikes an appropriate balance through its enforcement provisions between
public officials and the public-at-large.
A District Attorney’s View Regarding Enforcement
of the Act on a Particular School District
This study demonstrates that change has occurred because of legal
decisions from civil law suits, legislation, and ballot propositions. Yet there is a
dearth of literature on how criminal prosecutions have affected the Act. Indeed,
Blum (1966) opines that the criminal penalties of the Act are most likely
irrelevant. He reasons that there are no published cases because criminal
penalties are too great a sanction. And, surely the Act’s mandates regarding open
meetings were not designed to make criminals out of our public officials, but
merely to serve as a means to spur them to more public action (Blum, 1966).
Remember, Markman remarked in 1998 that there had only been three criminal
prosecutions, and all had failed. Therefore, this author is not surprised that he
found no published cases (court cases that are reported in the appellate reporters)
47
and just one formal report having to do with a school district that involved the
criminal sanctions provisions of the Act.
In 2005, the Orange County District Attorney’s Office received
complaints from the public about the Capistrano Unified School District. These
complaints centered on alleged miscellaneous misconduct involving Brown Act
violations (Report of the Orange County District Attorney, 2007). From these
initial complaints the district attorney started an inquiry into the functioning of the
district’s board of directors (trustees). Contemporaneous to this, the district’s
community started a recall effort in April 2005 that ended in a failed application
for a recall election. More serious complaints then arose in the first half of 2006.
This included an allegation that there was the creation of an enemies list of recall
supporters and signature gatherers, including the names of children attending
schools within the school district.
At this point, the district attorney elevated the initial inquiry to one of a
formal investigation. This, in turn, led to a grand jury investigation that
culminated in criminal indictments against the superintendent and one deputy
superintendent. These indictments were not for violations of the Act. However,
this investigation led to information about noncompliance by the district’s board
with the Act’s open meeting mandates. The report specifically starts out with,
“At the outset it is important to recognize that due to the nature of the Brown Act,
48
a finding of violations does not necessarily support criminal prosecution” (Report
of the Orange County District Attorney, 2007, p. 2). It further states, the Act
authorized the District Attorney to commence a criminal prosecution only
against elected officials, and only in very narrow circumstances. The
reasons for these limitations presumably lie in the nature of the balance of
powers between the administrative and Legislative branches of
government. (p. 3)
The district attorney then claims that only the more egregious
circumstances warrant criminal prosecution. The Report also announces the
elements required under the Act for a successful misdemeanor conviction. That
is, the member legislator acts with specific intent to conceal matters from the
public, knowing that the public has a right to know those matters. The district
attorney then interprets this provision of the Act that absent the preceding as
proveable, his authority “is strictly limited to civil action and only after the
legislative body has been informed of his findings and given the opportunity to
concede past violations and commit itself to compliance in the future” (Report of
the Orange County District Attorney, 2007). p. 3). The district attorney then
refers to the preceding as the basis for why he made a report to the public of his
formal findings.
At this point, the district attorney states that it is the role of the district
attorney to inform the voting public on the legislature’s conduct and it is up to the
voters to decide how their elected officials represent them. Indeed, the Report
claims that in the final analysis, none of the violations support the initiation of
49
criminal charges against any elected member of the board of trustees. The Report
concludes its introduction by stating that the violations are sufficient for civil
remedies afforded under the Act should the board of trustees dispute the Report’s
findings (Report of the Orange County District Attorney, 2007). Indeed, this
particular district attorney appears to have taken on the mind-set of the Governor
of Nevada, circa 1961, that: “the deprivation of human liberty is too important to
be sacrificed merely for a test” (Open Meeting Statutes, 1962, p. 1211). Further,
that mind-set may well be reflective of an underlying belief that to submit public
officials to the risk of the moral public disgrace of a criminal conviction in order
to get clarification of the statute seems both unjust and inappropriate.
The Report, in section two, reports the relevant law. Most of section two
concerning the Act’s mandates and subsequent court interpretation is discussed
earlier in this study and does not bear repetition here. However, the Report did
rely on an Attorney General Opinion circa 1998 about the definition of a meeting.
The California Attorney General’s opinion is not binding authority upon the
courts, but it is entitled to great weight in a court proceeding (Report of the
Orange County District Attorney, 2007). This particular opinion only underscores
the other literature on the definition of a meeting found elsewhere in this study.
In section three of the Report (Report of the Orange County District
Attorney, 2007), the district attorney provides a highly detailed statement of facts;
facts that align with the explanation of the law in section two of the Report.
50
These facts detail meeting in closed sessions about matters and actions that
needed to be discussed and decided in open sessions. The facts also detail
discussion in closed session on topics not agendized for that session: Agendized
closed session items not properly described, failure to disclose in open session
what was to be discussed in closed session, and, discussing matters not
appropriate under the employee “evaluation of performance” exception.
Thereafter, in section four, the Report sets out fourteen findings consistent with
the facts described and the law explained.
In section six, the Report (Report of the Orange County District Attorney ,
2007) lays out its two conclusions. The district attorney first concludes that
criminal prosecution is not warranted because the district attorney could not
present sufficient evidence “beyond a reasonable doubt” that the board of trustees
knew or had reason to know that the public was entitled to receive the information
withheld (Report of the Orange County District Attorney, 2007, p. 35). The
Report’s second conclusion states that civil action is premature, but warranted
should the wrongful conduct continue. In the last substantive section, the Report
makes four recommendations, one of which was for the school district to institute
and maintain a vigorous and continuous Brown Act training program for “both
Board Members and Executive Officers” (Report of the Orange County District
Attorney, 2007, p.38).
51
What one can take from this section is a culmination of the sections
discussed before it. The literature in this section stands as the current statement,
by way of example, as to why there is little written regarding civil or criminal
prosecutions as they affect interpretation and enforcement of the Act. This
section provides the structure by which this author has framed his research about
whether the Act strikes an appropriate balance through its enforcement provisions
between public officials and the public-at-large. Further, this last section will
provide the counterpoint to the conclusions made in this study.
52
CHAPTER 3
RESEARCH METHODOLOGY
This chapter describes the design, measures, data collection, and
methodology for this qualitative study. The purpose of this study examined
whether The Brown Act (Deering’s California Codes Annotated, 2008a) is
designed for the public to have a comprehensive enforcement tool that has teeth,
or whether it was designed as a paper tiger to shield public officials from true
accountability by the public-at-large.
This study investigated the following overarching question: Does a policy
analysis support a finding that in its application, the Act appropriately strikes a
balance between the right of boards of trustees and school officials to govern, and
the public’s right to accountability of that governess?
In conducting the research for the overarching question, the following
research questions were asked:
1.
Does The Brown Act strike an appropriate balance between the
right of boards of trustees and school officials to govern, and the public’s right to
accountability of that governess?
2.
Relative to school districts, does The Brown Act, as written, strike
an appropriate balance through its enforcement provisions between its two main
participants; public officials and the public-at-large?
53
3.
If boards of trustees and/or school officials continuously and
actively refuse to comply with the Act, does this mean there is a need to revise the
Act’s civil and/or criminal sanctions to provide meaningful accountability?
4.
If there is a need to retool the Act’s sanctions for active non-
compliance, what should those sanctions look like statutorily and how should
those sanctions be triggered?
This study used a case study approach that involved participants who has
different state, county, and local roles as more particularly identified below. The
quantitative data used is insufficient in sample size to form a proper basis to
qualify as a quantitative study. However, an analysis of the data obtained from
these participants unfolded the nature of the balance between school public
officials and the public-at-large within the Act’s enforcement schema in a
qualitative case study setting. The targeted participants were state legislators,
county district attorneys’ officers, boards of trustees, superintendents, and the
public-at-large. Initially, surveys were sent out to 26 persons in each category of
participant. The actual participants in the study were those who expressed
willingness to participate in their responses to the surveys. These responses,
taken together with in-depth interviews described below, provided the bases for
the policy analysis. These bases provided data that shed light on the beliefs,
perceptions, and innate biases of the participants as reflected by each participant’s
role. The interviews probed each participant’s professional background and
54
experiences, the role each interviewee currently has vis-à-vis the Act, and each
interviewee’s experiences with the Act, initiated or observed. From those who
returned surveys, the study used one geographic area in Southern California in
selecting a representative for each studied role. Therefore, this policy analysis is
one presented in a case study format.
The University of Southern California and the Institutional Review Board
informed the researcher that the particular research warranted no approval from
the IRB, since its research is not on human subjects” All subjects participating in
the interviews and surveys were assured anonymity. All the information
presented about the interviewees and the results of the interviews and survey are
factual. Archival data collected and reviewed were from public documents.
As stated above, ideally participants were to include one school board
president, one school district superintendent, one district attorney’s office, a
member of the public-at-large, and one state representative. However, according
to Lincoln and Guba (1985), the design of naturalistic inquiry, such as a policy
analysis, cannot be given in advance. It must emerge, develop and unfold. As
such, the category of state representative is non-existent from lack of any
responses. While the design specified an initial focus, plans for observations and
initial guiding interview questions, the naturalistic and inductive nature of the
inquiry made it impossible and inappropriate to specify operational variables,
state testable hypotheses, or finalize either instrumentation or sampling schemes
55
(Patton, 2002). A naturalistic design unfolds or emerges as fieldwork unfolds
(Lincoln & Guba; 1985, Patton, 2002). Part of the value of open-ended
naturalistic observations is the opportunity to see what there is to see without the
blinders of hypotheses and other preconceptions (Patton, 2002). It is the unique
opportunity to look where no one has ever looked before and see what the world
has to show us. Interviewing, though, has for its purpose, to allow us to enter into
the other person’s perspective. “We interview to find out what is in and on
someone else’s mind, to gather their stories” (Patton, 2002, p.341). According to
Dexter (1970), “Interviewing is the preferred tactic of data collection when . . . it
will get better data, or more data . . . than other tactics” (p. 11). The most
common form of interview is the in-person, one-on-one, encounter in which one
person elicits information from another (Merriam, 1998). Being open and
pragmatic requires a high tolerance for ambiguity and uncertainty as well as trust
in the ultimate value of what inductive analysis will yield (Patton, 2002, p. 44).
Design flexibility stems from the open-ended nature of naturalistic inquiry as well
as pragmatic considerations (Patton, 2002). Therefore, this researcher has only
provided the initial focus, the plans for observations by survey and interviews,
and the initial guiding interview questions in the form of the research questions
stated herein. The naturalistic and inductive nature of the inquiry makes it
impossible and inappropriate to specify operational variables, state testable
hypotheses, or finalize either instrumentation, or sampling schemes. Therefore,
56
this researcher could give no detail as to the actual instrumentality used,
qualitatively or quantitatively, as this case study first developed. That said, the
qualitative and quantitative methodology detail is described more particularly
below.
Policy Analysis by Case Method
A policy analysis method, “is a social and political activity” (Bardach,
2005, p. xiii). The subject of the analysis concerns, “the lives and well-being of
large numbers of our fellow citizens” (Bardach, 2005, p. xiii). Further, the policy
analysis process and results involve synthesizing the viewpoints of other
professionals and interested parties. Viewpoints represent beliefs and desires that
form the construct for the vision of each person’s world according to Bevir,
Rhodes and Weller (2003). At its foundation then, policy analysis is about beliefs
and desires of the main players in the process reflective of their own constructs of
the world.
The researcher selected policy analysis which used naturalistic inquiry as
the emergent design because it is suitable, is flexible, and relies, in part, on the
research interview process (Patton, 2002). The research interview is based on the
conversations of daily life and is a professional conversation (Kvale &
Brinkmann, 2009). It is an inter-view where knowledge is constructed in the
inter-action between the interviewer and the interviewee. “An interview is
57
literally an inter view; an interchange of views between two persons conversing
about a theme of mutual interest” (Kvale & Brinkmann, p.2). Thus, the interview
process comes closest in definition of policy analysis as presented in this study.
The researcher chose this particular qualitative case study design because of the
research problem’s nature and the questions asked to formulate a policy analysis.
The case study approach allowed for a deeper examination of the policy analysis’
subject. The results yielded provided a thick and rich description of the vital role
each responding participant plays in determining whether the Act has struck a
balance between school public officials and the public-at-large. The researcher’s
goal was, and is, to provide insights and give meaning to all stakeholders in the
enforcement process of the Act.
Sample and Population
This policy analysis focused on one southern California geographic region
having all the differing roles for participants. The criterion for selection was
geographic centrality to one county, if possible. The purposeful sampling method
was used to permit inquiry into and understanding of a phenomenon in depth.
This led to an information-rich case study methodology. Since the study was a
policy analysis, there was a need for an information rich case where one could
learn a great deal about issues of central importance to the purpose of the research
(Patton, 2002). The participants chosen exhibited knowledge of the Act’s
58
enforcement measures. They also had close geographic proximity to each other
and, when possible, interrelatedness to one another. In the geographic area
studied, the participants and identifiers have fictional names to protect anonymity.
The subjects of the study comprised of the following. The school board of
trustees was represented by a board member. The school district’s official was a
superintendent. The district attorney’s office was an assistant district attorney, the
district attorney’s designated representative. The public-at-large was represented
by a newspaper reporter assigned to educational news and familiar with the Act’s
enforcement provisions. Last, the state legislator was unrepresented because of a
complete lack of participation from that group. The school district and county
were urban in nature, as opposed to rural. As a requirement for participation in
the study, all participants had sat in the labeled designated assignment for a period
of at least one year.
Information about the professional backgrounds of the participants was
presented in the order of categories of information pertaining to each participant.
Tthe organization of information was segregated according to categories noting
any exceptional differences and did emphasize their commonalities. The ability
to note the important differences and similarities in the backgrounds of the
participants was essential for contextualizing the interview data.
59
Data Collection Procedures
Data collection began with returned surveys which were sent to each
category of participant on a random basis. The surveys were homogenous as to
content for all groups. The survey obtained data as to professional background,
years of service, familiarity with the Act in general, and familiarity with the Act’s
enforcement provisions. The survey asked further questions representative of the
research questions set out earlier in the study.
The second type of data was sourced from research interviews. Again,
there were basic questions about the individual, and then questions that focused
upon the research questions presented in the study. Each interview took
approximately 45 minutes to one hour and was tape recorded.
The third type of data came from documentation provided the researcher
by one or more of the interviewees. The data collected was in the form of a legal
brief and an opinion letter.
Survey Format
A survey was used with each participant to check out the consistency of
findings generated by research interviews and the data gleaned from documents
(Patton, 2002). Methods triangulation often involves comparing and integrating
data collected through some kind of qualitative methods with data collected
through some kind of quantitative method. This effort is pragmatic because it
60
assumes potential compatibility of data results. Thus, it is common that
quantitative methods and qualitative methods are used in a complementary
fashion to answer different questions that do not easily come together to provide a
single, well-integrated picture of the situation. The researcher did not expect to
find the findings from the surveys and interviews to automatically come together
because of the different methods used to obtain data. This would happen, if for
no other reason, when quantitative data from surveys reflect a large enough
sample of the overall population that allows for generalizing from the sample
population. Here, the qualitative and quantitative data from surveys, research
interviews, and document review used in this study lacks sufficient sampling size.
Therefore, this case study format does not lend itself to generalization (Guba,
1978; Patton, 2002).
Interview Format
Patton (2002) states there are three basic approaches to collecting
qualitative data through open-ended questions. Patton also states there is one
approach for closed, fixed-response interview. For purposes of this study, the
researcher used the combination of guide approach with a standardized format
which has certain key questions asked exactly the same way while leaving other
items as topics to be explored at the researcher’s discretion.
61
Patton also describes six types of questions that can be used during an
interview. For this policy analysis, the following types of questions were used:
1.
Experience and Behavior Questions: These questions about what
a person does or has done aim to elicit behaviors, experiences, actions, and
activities. Their goal is to elicit what the observer (researcher) would have
observed had the researcher been present. An example of this type of question is,
“If I had been investigating a potential wrongful behavior concerning The Brown
Act, what would I have seen you doing?”
2.
Opinion and Values Questions: These questions probe the
understanding of the cognitive and interpretive processes of people asked about
opinions, judgments, and values. Answers to these questions tell us what people
think about some experience or issue. They tell us about people’s goals,
intentions, desires, and expectations. An example of this type of question is,
“What do you think about the enforcement provisions of The Brown Act?”
3.
Feeling Questions: These questions aim at eliciting feeling
responses of people to their experiences and thoughts. These questions are not
asking for their opinions, or for analytical or interpretive statements. Feelings tap
the affective dimension of human life. An example of this question is, “How do
you feel about the district attorney trying to enforce the open meeting provisions
of The Brown Act?”
62
4.
Knowledge Questions: These questions inquire about the
respondent’s factual information which is not opinion or feeling in nature. An
example of this type of question is, “What is required to obtain a criminal
conviction under The Brown Act?”
5.
Background/Demographic Questions: These questions are more
preliminary in nature and are concerned with the identifying characteristics of the
participant interviewed. Answers to these questions helped the researcher locate
the interviewee in relation to other people. An example of this question is, “How
many years have you worked in a position that required knowledge of The Brown
Act?”
By contrast, Kvale and Brinkmann (2009) hold that there are nine types of
interview questions. These categories of questions are complementary to Patton’s
six questions or merely restatements of Patton’s six types under a different label.
They are: Introductory questions, Follow-up questions, Probing questions,
Specifying questions, Direct questions, Indirect questions, Structuring Questions,
Silence, and Interpreting questions. The researcher used all of these questions.
1.
Introductory Questions: These are opening questions that may
yield spontaneous, rich descriptions where the subjects themselves provide what
they have experienced as the main aspects of the phenomena investigated. An
example of this type of question is, “Do you remember an occasion when you
believed a Brown Act violation warranted sanctions as specified by the Act?”
63
2.
Follow-up Questions: These are questions that may extend
through the means of a pause, through direct questioning of what was just said, or
repeating significant words of an answer to obtain elaboration. An example of
this type of question is, “But what do you mean The Brown Act is ineffectual?”
3.
Probing Questions: These questions pursue the answers, probing
their content, but without setting what dimensions are to be taken into account.
An example of this type of question is, “You state that The Brown Act is an
expensive civil remedy, can you say more about that?”
4.
Specifying Questions: These questions follow up with more
“operationalizing” questions. An example of this is, “What did you actually do
when you were contacted by the press about the need to investigate the A.B.
Unified School District?”
5.
Direct Questions: These questions by the researcher were to
directly introduce topics and dimensions. Direct questions may preferably be
postponed until the later parts of the interview, after the interviewee has given
his/her own spontaneous descriptions and thereby indicated which aspects of the
phenomena are central to them. An example of this is, “Have you ever thought
that the sanctions provisions of The Brown Act needed to be retooled?”
6.
Indirect Questions: These questions may apply projective
questions that lead to answers that may refer directly to the attitudes of others, or
may be an indirect statement about the interviewee’s own attitude. An example of
64
this is, “How do you believe other stakeholders in the process regard the sanction
provisions of The Brown Act?”
7.
Structuring Questions: These questions direct when the theme has
been exhausted. The researcher may directly and politely break off long answers
that are irrelevant to the investigation. An example of this is, “I understand what
you are saying, but I would now like to introduce another topic about proper
training on The Brown Act.”
8.
Silence: This technique of asking a question by staying silent
encourages further associative and reflective answers with significant information
that breaks the silence, much as what psychologists do in employing silence to
further the interview.
9.
Interpreting Questions: These questions may involve rephrasing
an answer to obtain a degree of interpretation. An example of this is, “You then
mean that most public officials want to follow the dictates of The Brown Act even
if there were no sanction provisions in the Act?”
Documentary Data
The third type of data was document analysis. The documents used were
unknown prior to the time as to each interviewee. However, the researcher found
that such documentation took the form of transcribed interviews, notes, a legal
65
brief, and an opinion letter. Copies of these documents were obtained, coded, and
catalogued. This kind of data represents a triangulation of sources (Patton, 2002).
Data Collection Schematic
The researcher initially sent a package to each kind of participant that was
in the researcher’s geographic area of Southern California. Each package
contained a self-addressed, stamped envelope for return of the enclosed survey,
and if applicable, a letter of intent to participate in the interview process. The
researcher then contacted prospective candidates for interviewing based upon the
results of the returned letters of intent.. Thereafter, the researcher contacted and
set up interviews which were tape recorded. Multiple sources of information
were sought and used because no single source of information can be trusted to
provide a comprehensive perspective on the study (Patton, 2002).
By using a triangulation of sources from surveying, interviewing, and
document analysis, the fieldworker is able to use different data sources to validate
and cross-check findings (Patton, 2002). Again, using a combination of data
types, e.g., triangulation, increases validity as the strengths of one approach can
compensate for the weaknesses of another approach (Marshall & Rossman, 2006).
Triangulation of sources includes methods of recoding interviews for
documentation and later analysis include audio recording, video recording, note
taking, and remembering (Kvale & Brinkmann, 2009). The common way of
66
recording interviews has been with the use of an audio recorder, which frees the
interviewer to concentrate on the topic and the dynamics of the interview. No
matter what style of interviewing you use, and no matter how carefully you word
questions, it all comes to naught if you fail to capture the actual words of the
interviewee (Patton, 2002). The use of the tape recorder does not eliminate the
need for taking notes, but does allow you to concentrate on taking strategic and
focused notes, rather than attempting verbatim notes.
Notes can serve at least four purposes according to Patton (2002). In
summary, notes can help the interviewer formulate new questions as the interview
moves along. Looking over field notes before transcripts are done helps make
sure the inquiry is unfolding in the hoped-for direction and stimulate early
insights for later occurring interviews. Taking notes will facilitate later analysis,
including locating important quotations from the tape itself, and notes are a
backup in the event the recorder has malfunctioned, or a tape is inadvertently
erased during transcription. However, the first requirement for transcribing an
interview is that it was, in fact, recorded (Kvale & Brinkmann, 2009. The second
requirement for transcription is that the recorded conversation is audible to the
transcriber.
The results of the surveys, the interviews, notes of the researcher, and
document review were triangulated in order to analyze and report the results to
the highest level of integrity possible (Patton, 2002).
67
Data Analysis Procedures
The ideal or typical qualitative methods strategy is made up of three parts:
(a) Qualitative data, (b) a holistic-inductive design of naturalistic inquiry, and (c)
content or case analysis (Patton, 2002). At its base, qualitative data analysis is
content analysis since it is the content of interviews, field notes, and documents
analyzed for the study (Merriam, 1998). For this study, a system for grouping the
data according to descriptors was crafted for use with the interview transcripts.
During the actual study and research interview process, with documents reviewed
for data analysis, new groupings emerged. All data was broken down into
descriptors, were grouped, and summarized. The data analysis schemes were
designed to capture any beliefs or behaviors that may concur or contradict the
groupings crafted by the researcher (Patton, 2002). According to Altheide (1987),
the process of analysis involves the concurrent coding of raw data and the
structuring of categories that capture relevant characteristics of the document’s
content. This will not result in a traditional analyst triangulation because only one
observer undertakes this study. However, the ultimate test of the credibility of an
evaluation report is the response of primary intended users and readers of this
report. This audience review represents its own triangulation of analysis.
Coding of the research interviews followed the first four of Kvale and
Brinkmann’s (2009) six steps for interview analysis; the fifth step was used as
68
proved necessary for clarification or to insure correctness. In the first step, the
subjects describe their life world in relation to a topic and there is little
interpretation or explanation from either the interviewer or the interviewee. In the
second step, the subjects themselves discover new relationships during the
interview, see new meanings in what they experience and do so on the basis of
spontaneous descriptions, without interpretation from the interviewer. In the third
step, the interviewer in the interview process condenses and interprets the
meaning of what the interviewee describes and states it back to the interviewee.
At that point, the interviewee has the opportunity to accept, repute, or elaborate.
This gives an on-the-spot confirmation or disconfirmation of the interviewer’s
interpretations. In the fourth step, the recorded interview is analyzed by the
interviewer through transcription and with the aid of computer programs for
textual analysis. The analysis proper involves the developing of meanings of the
interviews, and bringing the subjects’ own understanding into the light, as well as
providing new perspectives from the researcher. The fifth step is optional and
could be a re-interview. This operates as a self-correcting interview and is a form
of member validation.
All interviews were transcribed verbatim. All data was analyzed by
coding transcribed interviews and notes looking for recurring regularities and
cross referenced findings (Patton, 2002. The data were first coded according to
the general research questions and theoretical structures steering this study. As
69
the data analysis process progressed, more detailed codes were developed for
emerging themes. This researcher manually sorted the themes. The study used
tables to assist the data analysis process.
Ethical Considerations
Interviews are interventions that affect people (Patton, 2002. A good
interview lays open thoughts, feelings, knowledge, and experience of both the
interviewer an interviewee. Kvale and Brinkmann (2009) set out ethical issues at
the seven stages of research. This researcher followed those listed considerations
as follows. The study was considered with regard to improvement of the human
situation investigating, i.e., the thematizing stage. The researcher obtained each
participant’s informed consent to participate in the study and secured each
participant’s confidentiality while considering the possible consequences of the
study on the subjects, i.e., the designing stage. In the interview situation stage,
the researcher took into account the personal consequences of the interview
interaction for the interviewees, e.g., stress during the interview and changes in
self-understanding. The researcher protected the confidentiality of the
interviewees and questioned whether the transcribed text was loyal to the
interviewees’ oral statements, i.e., the transcription stage. In the analysis stage,
the researcher gave due care to how deeply the interviews could be analyzed and
considered whether the subjects should have a say in how their statements were
70
interpreted. It is this researcher’s ethical responsibility to report knowledge that is
secured and verified as possible which means questioning how critically an
interviewee may be questioned, i.e., the verification stage. In the last stage,
reporting” the researcher guarded the confidentiality when reporting private
interviews in public giving due respect for the consequences of published report
for the interviewees and the groups to which they belong. In other words, unless
there was an express, written, authorization to disclose information or identities,
the participants’ shared information was not disclosed to the public. Further, all
physical instrumentalities of data gathering such as tapes, notes, e-mails
transcripts, and other documents are guarded by the researcher from revelation to
the public domain unless there was an express, written, consent to the contrary.
Last, at all times relevant, this researcher followed the University of Southern
California’s Institutional Review Board provisions and those provisions required
by the study’s participants.
71
CHAPTER 4
ANALYSIS AND INTERPRETATION OF THE
DATA AND THE FINDINGS
The purpose of this chapter is to present and analyze the data collected in
the study. Therefore, this chapter sets out the data, makes analyses and
interpretations of the data, and describes the findings that flow from the analyses
and interpretations. The data consist of responses to a written survey presented to
four groups of participants. The four groups were Superintendents, Board of
Trustee Officials, the Public-at-large, and District Attorneys. The Public-at-large
was represented by newspaper editors or assigned education reporters.
The survey used a Likert Scale to measure the responses (Encarta
Dictionary, 2009). Data also consist of answers made in response to in-person
semi-structured interviews. Those interviewed were randomly selected, with one
interviewee from each group of participants. Hence, this study used purposeful
sampling both as to the Questionnaire Survey and the interviews (Patton, 2002).
This author also attempted to gather data from the State Legislature by
twice mailing out 26 sets of surveys. However, this author received no responses
to surveys, from and was unable to interview, any Legislator. At the time of the
writing of this dissertation, the State of California was engaged in addressing a
multi-billion dollar shortfall from fiscal year 2008 through fiscal year 2010 and
72
beyond (California’s Fiscal Outlook, 2007. The need to address this crisis may
well explain why no responses were received from the Legislature.
The data collected addressed the four research questions to be answered
by this study which are set out as follows.
1.
Does The Brown Act strike an appropriate balance between the
right of boards of trustees and school officials to govern, and the public’s right to
accountability of that governess?
2.
Relative to school districts, does The Brown Act, as written, strike
an appropriate balance through its enforcement provisions between its main
participants: public officials and the public-at-large?
3.
If boards of trustees and/or school officials continuously and
actively refuse to comply with The Brown Act, does this mean there is a need to
revise the Act’s civil and/or criminal sanctions to provide meaningful
accountability?
4.
If there is a need to revise The Brown Act’s sanctions for active
non-compliance, what should those sanctions look like statutorily and how should
those sanctions be triggered?
The presentation of findings intends to provide a detailed description of
the data by comparing and contrasting the four groups of participants’ gathered
survey responses. The presentation of findings also intends to provide a detailed
description of the data obtained from the four interviewees. Each interviewee’s
73
responses are provided after the analysis of the particular survey data that is
applicable to the discussed research question.
As a backdrop to understand the data presented, the Questionnaire Survey
had 30 survey questions. A sample of a blank Questionnaire Survey is attached as
Appendix A. For each of the four categories of participants, the first three survey
questions inquired about the participant’s background. Table 1 sets out the data
obtained from these background questions.
Table 1
Questionnaire Survey Questions 1-3
Responding Participant
Categories
Questions
Potential
Responses
Superintendents
Board of
Trustees
Public at
Large
District
Attorney
Offices
Answers By Participants In Each Category
Question 1
Position
Held
Question 2
Years In
Present
Position
Question 3
Touch Upon
Brown Act
Issues
8
3
4
4
1-2 yrs
3-5 yrs
6-10 yrs
11-15 yrs
16 + yrs
4
1
1
1
1
0
1
2
0
0
1
1
0
1
1
0
1
1
1
1
Not at all
Very little
Regularly
Most of the
time
All the
time
0
0
1
2
0
0
2
0
0
0
4
0
0
1
2
0
4
1
0
1
74
Out of 26 surveys sent to each group of Superintendents and group of
Board of Trustee Officials, eight Superintendents and three Board of Trustee
Officials responded. Of the eight Superintendents, four had 1 to 2 years
experience as a superintendent; one had 3 to 5 years experience; 1 had 6 to 10
years experience; 1 had 11-15 years experience, and one had 16-plus years of
experience in the position. Of the Board of Trustee Officials, one had 3 to 5 years
experience, and two had 6 to 10 years experience. For the Superintendents, one
touched on The Brown Act issues “regularly,” two stated “most of the time” and
four stated “all the time.” For the Board of Trustee Officials, as to how often
he/she touched on The Brown Act issues, two stated he/she did so “regularly” and
one stated “all of the time” (Table 1).
Out of 26 surveys sent to each group of Public-at-large and District
Attorneys, four Public-at-large and four District Attorneys responded. Of the four
Public-at-large respondents, one had 1 to 2 years experience as a editor or
newspaper reporter; one had 3 to 5 years experience; none had 6 to 10 years of
experience; one had 11-15 years experience and one had 16-plus years of
experience in the position. Of the District Attorneys, none had 1 to 2 years
experience as a Deputy District Attorney; one had 3 to 5 years of experience; one
had 6 to 10 years of experience; one had 11-15 years of experience; and one had
16-plus years of experience. For the Public-at-large, all four respondents touched
on The Brown Act issues regularly. For the Deputy District Attorney participants,
75
one touched on The Brown Act issues “very little,” two stated he/she did so
“regularly,” and one stated, “all of the time” (Table 1).
The remainder of the survey questions, 4 through 30, were substantive in
nature and called for answers in five categories according to the Likert Scaling
method (Encarta Dictionary, 2009). The following categories were the available
answers: Disagree, Mostly Disagree, Undecided, Mostly Agree, Agree. For
analyzing the data, and given the limited actual sample size, the categories of
“Disagree” and “Mostly Disagree” were combined into one answer. For the same
reasons, the categories of answers “Mostly Agree” and “Agree” were combined
into one answer. Under the Likert Scaling methodology, three units of
measurement were valid (Encarta Dictionary, 2009). The two pairings of
participants were made by a natural grouping of Superintendents with Board of
Trustee Officials, and the Public-at-large with D.A. Offices. Under The Brown
Act, it is the Superintendents and Board of Trustee Officials who are subject to
challenges and litigation by the Public-at-large and D.A. Offices (California
School Boards Association, 2009; Kronick, Moskovitz, Tiedemann & Girard,
2007).
Table 2 reflects survey questions 4 through 30, and collectively how all
participants responded.
76
Table 2
Questionnaire Survey Questions 4 – 30; All Participants’ Responses
Questions
Answered by all participants, collectively
Disagree
Undecided
Agree
I am very familiar with the Brown Act, as
written.
1
0
18
I am very familiar with the Brown Act, as
enforced.
1
1
17
6
My work is impacted by the Brown Act.
0
0
19
7
I have been involved with enforcement
activities related to the Brown Act.
4
0
15
8
I view Brown Act regulations as necessary.
2
0
17
9
I view Brown Act enforcement rules as
necessary.
2
1
16
I view Brown Act enforcement rules, as
written, biased in favor of the public-at-large
8
3
8
I view Brown Act enforcement rules, as
written, biased in favor of school boards.
10
4
5
I view Brown Act enforcement rules, as
written, non-biased between school boards
and superintendents on the one side and the
public-at-large on the other.
7
4
8
10
1
8
4
5
10
11
12
13
I view Brown Act enforcement rules, as
applied, biased in favor of the public.
14
I view Brown Act enforcement rules, as
applied, biased in favor of school boards and
superintendents..
12
2
5
I view Brown Act enforcement rules, as
applied, non-biased in favor of school boards
and superintendents on the one side and the
public-at-large on the other.
9
3
7
I view the Brown Act’s civil enforcement
rules effective, as written.
4
6
9
I view the Brown Act’s civil enforcement
rules effective, as applied.
4
6
9
15
16
17
77
Table 2 Continued
Questions
Disagree
Undecided
Agree
I view the Brown Act’s criminal enforcement
rules effective, as written.
9
7
3
I view the Brown Act’s criminal enforcement
rules effective, as applied.
9
6
4
6
5
8
5
4
Answered by all participants, collectively
18
19
20
21
I believe the standard for criminal conviction
under the Brown Act, as written, should be
lowered from a specific intent crime to some
other lesser standard for conviction of a crime.
I believe that a minor failing to follow the
Brown Act’s requirements should lead to a
fine as a penalty, but no jail time.
10
22
23
24
25
26
27
I believe that a serious failing to follow the
Brown Act’s requirements should lead to a
fine as a penalty, but no jail time.
6
6
7
I believe that a minor failing to follow the
Brown Act’s requirements should lead to a
fine and jail time as penalties.
15
3
1
I believe that a serious failing to follow the
Brown Act’s requirements should lead to a
fine and jail time as penalties.
7
4
8
I believe the present civil penalties schema
under the Brown Act acts as an effective
deterrent to those who would want to willfully
disregard the Act’s requirements.
11
3
5
I believe there should be civil fines as
penalties assessed against the individuals who
fail to follow the Brown Act’s regulations.
5
3
11
I believe the present criminal penalties schema
under the Brown Act acts as an effective
deterrent to those who would want to willfully
disregard the Act’s requirements.
7
7
5
78
Table 2 Continued
Questions
Disagree
Undecided
Agree
I believe the District Attorney’s
enforcement of civil
penalties is vital to ensure Brown Act
compliance by boards of trustees and
superintendents.
5
1
13
I believe the District Attorney’s
enforcement of criminal penalties is vital
to ensure Brown Act compliance by boards
of trustees and superintendents.
6
3
10
14
1
4
Answered by all participants, collectively
28
29
30
I believe there should be no
criminalization for boards of trustees and
superintendents that intentionally violate
the Brown Act.
Table 3 reflects survey questions 4 through 30, and collectively how
Superintendents and Board of Trustee Officials responded. Table 4 reflects the
survey questions 4 through 30, and collectively how the Public-at-large and
District Attorneys responded.
In addition to the above Survey Questionnaires, four interviews were
conducted. Each interviewee represented a member of an identified group. The
data from these interviews are incorporated into the presentation of data as it
helps to explain or elaborate upon the Questionnaire Surveys’ findings. A sample
of the Interview Guideline is attached as Appendix B.
79
Table 3
Questionnaire Survey Questions 4 – 30; Superintendents and School Board Trustee
Officials’ Responses
Questions
Disagree
Undecided
Agree
Answered by Superintendents and by
Board of Trustee Officials
4
I am very familiar with the Brown Act,
as written.
0
0
11
5
I am very familiar with the Brown Act,
as enforced.
1
1
9
6
My work is impacted by the Brown Act.
0
0
11
7
I have been involved with enforcement
activities related to the Brown Act.
2
0
9
8
I view Brown Act regulations as
necessary.
2
0
9
9
I view Brown Act enforcement rules as
necessary.
2
1
8
I view Brown Act enforcement rules, as
written, biased in favor of the public-atlarge
3
2
6
I view Brown Act enforcement rules, as
written, biased in favor of school
boards.
7
2
2
I view Brown Act enforcement rules, as
written, non-biased between school
boards and superintendents on the one
side and the public-at-large on the other.
3
3
5
I view Brown Act enforcement rules, as
applied, biased in favor of the public.
3
1
7
I view Brown Act enforcement rules, as
applied, biased in favor of school
boards and superintendents..
10
1
0
I view Brown Act enforcement rules, as
applied, non-biased in favor of school
boards and superintendents on the one
side and the public-at-large on the other.
6
2
3
10
11
12
13
14
15
80
Table 3 Continued
Questions
Answered by Superintendents and by
Board of Trustee Officials
16
17
18
19
20
21
22
23
24
25
Disagree
Undecided
Agree
I view the Brown Act’s civil
enforcement rules effective, as written.
2
3
6
I view the Brown Act’s civil
enforcement rules effective, as applied.
2
3
6
I view the Brown Act’s criminal
enforcement rules effective, as written.
5
4
2
I view the Brown Act’s criminal
enforcement rules effective, as applied.
5
4
2
I believe the standard for criminal
conviction under the Brown Act, as
written, should be lowered from a
specific intent crime to some other
lesser standard for conviction of a
crime.
2
4
5
I believe that a minor failing to follow
the Brown Act’s requirements should
lead to a fine as a penalty, but no jail
time.
3
2
6
I believe that a serious failing to follow
the Brown Act’s requirements should
lead to a fine as a penalty, but no jail
time.
1
4
6
I believe that a minor failing to follow
the Brown Act’s requirements should
lead to a fine and jail time as penalties.
9
1
1
I believe that a serious failing to follow
the Brown Act’s requirements should
lead to a fine and jail time as penalties.
6
2
3
I believe the present civil penalties
schema under the Brown Act acts as an
effective deterrent to those who would
want to willfully disregard the Act’s
requirements.
6
3
2
81
Table 3 Continued
Questions
Answered by Superintendents and by
Board of Trustee Officials
26
27
28
29
30
Disagree
Undecided
Agree
I believe there should be civil fines as
penalties assessed against the
individuals who fail to follow the
Brown Act’s regulations.
4
2
5
I believe the present criminal penalties
schema under the Brown Act acts as an
effective deterrent to those who would
want to willfully disregard the Act’s
requirements.
5
3
3
I believe the District Attorney’s
enforcement of civil
penalties is vital to ensure Brown Act
compliance by boards of trustees and
superintendents.
5
9
6
I believe the District Attorney’s
enforcement of criminal penalties is
vital to ensure Brown Act compliance
by boards of trustees and
superintendents.
6
2
3
I believe there should be no
criminalization for boards of trustees
and superintendents that intentionally
violate the Brown Act.
7
1
3
82
Table 4
Questionnaire Survey Questions 4 – 30; Public-At-Large and
District Attorneys’ Responses
Questions
Disagree
Undecided
Agree
I am very familiar with the Brown
Act, as written.
1
0
7
I am very familiar with the Brown
Act, as enforced.
0
0
8
My work is impacted by the Brown
Act.
0
0
8
I have been involved with
enforcement activities related to the
Brown Act.
2
0
6
I view Brown Act regulations as
necessary.
0
0
8
0
0
8
5
1
2
3
2
3
Answered by the Public-at-large
and by District Attorneys
4
5
6
7
8
9
I view Brown Act enforcement rules
as necessary.
10
I view Brown Act enforcement rules,
as written, biased in favor of the
public-at-large
11
I view Brown Act enforcement rules,
as written, biased in favor of school
boards.
12
I view Brown Act enforcement rules,
as written, non-biased between school
boards and superintendents on the one
side and the public-at-large on the
other.
4
1
3
I view Brown Act enforcement rules,
as applied, biased in favor of the
public.
7
0
1
13
83
Table 4 Continued
Questions
Answered by the Public-at-large
and by District Attorneys
14
15
16
17
18
19
20
Disagree
Undecided
Agree
I view Brown Act enforcement rules,
as applied, biased in favor of school
boards and superintendents.
.
2
1
5
I view Brown Act enforcement rules,
as applied, non-biased in favor of
school boards and superintendents on
the one side and the public-at-large
on the other.
3
1
4
I view the Brown Act’s civil
enforcement rules effective, as
written.
2
3
3
I view the Brown Act’s civil
enforcement rules effective, as
applied.
2
3
3
I view the Brown Act’s criminal
enforcement rules effective, as
written.
4
3
1
I view the Brown Act’s criminal
enforcement rules effective, as
applied.
4
2
2
I believe the standard for criminal
conviction under the Brown Act, as
written, should be lowered from a
specific intent crime to some other
lesser standard for conviction of a
crime.
4
1
3
2
4
2
1
21
I believe that a minor failing to
follow the Brown Act’s requirements
should lead to a fine as a penalty, but
no jail time.
22
I believe that a serious failing to
follow the Brown Act’s requirements
should lead to a fine as a penalty, but
no jail time.
2
5
84
Table 4 Continued
Questions
Answered by the Public-at-large
and by District Attorneys
23
I believe that a minor failing to
follow the Brown Act’s
requirements should lead to a fine
and jail time as penalties.
Disagree
Undecided
6
2
Agree
0
24
25
26
27
I believe that a serious failing to
follow the Brown Act’s
requirements should lead to a fine
and jail time as penalties.
1
2
5
I believe the present civil penalties
schema under the Brown Act acts
as an effective deterrent to those
who would want to willfully
disregard the Act’s requirements.
5
0
3
I believe there should be civil fines
as penalties assessed against the
individuals who fail to follow the
Brown Act’s regulations.
1
1
6
I believe the present criminal
penalties schema under the Brown
Act acts as an effective deterrent to
those who would want to willfully
disregard the Act’s requirements.
2
4
2
28
29
30
I believe the District Attorney’s
enforcement of civil penalties is
vital to ensure Brown Act
compliance by boards of trustees
and superintendents.
0
1
7
I believe the District Attorney’s
enforcement of criminal penalties is
vital to ensure Brown Act
compliance by boards of trustees
and superintendents.
0
1
7
I believe there should be no
criminalization for boards of
trustees and superintendents that
intentionally violate the Brown Act.
7
0
1
85
Discussion of Reported Data to Research Question 1
Research Question 1 asks, “Does the Brown Act strike an appropriate
balance between the right of boards of trustees and school officials to govern, and
the public’s right to accountability of that governess?” The data in the various
tables provide the bases in answer to this question. Specifically, survey questions
numbered 13, 14, 15, 17, 19, 25, and 27 address Research Question 1.
Brown Act Enforcement: Balanced or Biased in
Application as an Overall Proposition
Referring to Tables 5 and 4, survey question 13 stated, “I view Brown Act
enforcement rules, as applied, biased in favor of the public.” Of the total sample
size of 19, 10 participants disagreed with this statement, 8 agreed with the
statement, and 1 was undecided. For this question, the answers were substantially
equally divided between agreement and disagreement. However, a more detailed
review of the responses reveals differences among categories of respondents.
Tables 5 and 6 break out the responses between the Superintendents/Board Of
Trustee Officials and the Public-at-large/District Attorneys’ responses. As the
responses to question 13 show, there is a clear split in how each group responded
to this item.
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Table 5
Survey Questions, 13, 14, and 15/Responses of Superintendents/Board of Trustee
Officials
13
14
15
Disagree
Undecided
Agree
I view Brown Act enforcement rules,
as applied, biased in favor of the
public.
3
1
7
I view Brown Act enforcement rules,
as applied, biased in favor of school
boards and superintendents..
10
1
0
I view Brown Act enforcement rules,
as applied, non-biased in favor of
school boards and superintendents on
the one side and the public-at-large
on the other.
6
2
3
Table 6
Survey Questions 13, 14, and 15/Responses of Public-At-Large/District Attorneys
13
14
15
Disagree
Undecided
Agree
I view Brown Act enforcement rules, as
applied, biased in favor of the public.
7
0
1
I view Brown Act enforcement rules, as
applied, biased in favor of school boards
and superintendents.
2
1
5
I view Brown Act enforcement rules, as
applied, non-biased in favor of school
boards and superintendents on the one
side and the public-at-large on the other.
3
1
4
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For survey question 13, the Superintendents/Board of Trustee Officials
(Superintendents/Boards) had seven respondents that agreed with the question’s
premise, and three respondents that disagreed. However, for this same survey
question, the Public-at-large and District Attorneys (Public/District Attorneys)
respondents disagreed with the premise that the Brown Act enforcement rules, as
applied, are biased in favor of the public. Seven of these participants disagreed,
and only one respondent agreed. Therefore, the data from this question showed
that, as applied, the participant’s point of view depended on whether the
individual was subject to the enforcement rules or was trying to enforce the Act’s
enforcement rules. That is, the Superintendents/Boards thought the Brown Act
enforcement rules favored the Public-at-large/District Attorneys, while the Publicat-large/District Attorneys thought the Act’s enforcement regulations favored
Superintendents/Boards.
Referring to Tables 5 and 6, survey question number 14 stated, “I view the
Brown Act enforcement rules, as applied, biased in favor of School Boards and
Superintendents.” Here, 12 participants disagreed with the statement, 5 agreed,
and 2 were undecided. This means 70.5% of the committing answers supported
the belief that enforcement procedures favored Superintendents and School
Boards. Interestingly, the answers to survey question 14 differed somewhat from
the answers to question 13. Question 14 was the mirror image of question 13 with
the expected same results. Yet, there was some incongruence between the
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answers to these questions. Therefore, a deeper analysis of the data is presented
to clarify this apparent inconsistency of results between these two questions.
For question 14, 10 of the Superintendents/Boards respondents disagreed
with the statement that enforcement is biased toward Superintendents/Boards,
none agreed, and one was undecided. When coupled with the results from
question 13, it is clear that the Superintendents/Boards believed the Act’s
enforcement, as applied, favored the Public-at-large. However, the Public-atlarge/District Attorneys responded to survey question 14 with two that disagreed,
five that agreed, and one that was undecided. Clearly, this response, when taken
with the results of question 13, demonstrates that the Public-at-large/District
Attorneys believed the Act’s enforcement, as applied, is skewed in favor of
Superintendents/Boards.
Questions 13 and 14 clearly show oppositional positions between the two
major groups. The Superintendents/Boards believed that The Brown Act favored
the Public-at-large, yet the Public/District Attorneys clearly believed the bias
existed in favor of the Superintendents/Boards. Survey question 15 represents the
third leg of the subject matter presented in survey questions 13 and 14.
Survey question number 15 sets out, “I view Brown Act enforcement
rules, as applied, non-biased in favor of School Boards and Superintendents on
the one side and the Public-at-large on the other.” Here, nine participants
disagreed with the statement, seven agreed, and three were undecided. Again, the
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answers were substantially equal one way or the other in opposition. These
responses show that an imbalance existed between the two groups that requires
drilling deeper into the data.
For survey question 15, the Superintendents/Boards had six participants
who disagreed, while three agreed, and two were undecided. Of some interest is
the fact that for questions 13 and 14, the Superintendents/Boards were aligned in
their responses to question 14, but not as strongly as for question 13. Therefore,
that group of participants clearly believed almost unanimously from question 14
that the Act‘s enforcement, as applied, did not favor Superintendents/Boards.
However, the data from questions 13 and 15 show that Superintendents/Boards
did not as clearly believe that the Act favors the Public-at-large for enforcement,
as applied.
By contrast, the Public-at-large/District Attorneys were fairly evenly split
in their answers for question 15. Three disagreed with this question, four agreed,
and one was undecided. These data are in sharp contrast to the data from
questions 13 and 14 that showed that the Public-at-large/District Attorneys
overwhelmingly believed that the Act’s enforcement, as applied, favored the
Superintendents/Boards. The findings demonstrate that the Public-atlarge/District Attorneys believed that the act is biased in favor of the
Superintendents/Boards.
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The results from questions 13, 14 and 15 showed that the Superintendents/
Boards had continuity in their belief that the Act’s enforcement, as applied, is
skewed in favor of the public. By contrast, the Public-at-large/District Attorneys’
answers demonstrated a belief that the Act’s enforcement, as applied, favored the
Superintendents/Boards by a plurality viewpoint. This plurality viewpoint is
reflected in the data from the interview of the District Attorney (“D”) below.
Interview Responses Overlaid Survey Questions
for Research Question 1
Consistent with the above data, and in illumination of the survey
questions, are the data obtained from the four interviewees. The data obtained
overlaid survey questions 10 through, and including, question 15. However, the
interview questions were asked differently as shown in the “Interview Guideline,
Semi-structured”(Appendix B). The particular interview questions asked were,
“What is your opinion about whether the Brown Act’s enforcement provisions, as
written, have struck a balance between school boards and or superintendents’
right to govern and the right of the public-at-large to accountability of that
governess? Tell me more?” The next interview query was posed as the identical
question, however, “as implemented,” replaced “as written.”
Interviewee “A” was a member of a Board of Trustees, and believed there
is a “good balance” between organizations’ and the public’s right to know. He
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stated, “Sometimes you want to step beyond the boundaries of your legitimate
authority. That is why the Brown Act is so important because it forces you to
rethink and take a look at what kind of policy decisions you are to make and how
you make those. And do you make them within the framework of serving the
public’s interest or do you make them within the framework of serving limited
interest?” However, he felt that sometimes the enforcers of the Act are people
who could be a little bit overzealous in their enforcement. He attributed this to
the fact that they may overlook the facts. He stated that enforcement personnel
needed to be extremely careful that they have accurate information. Interviewee
“A” stated that personal opinions can get in the way of objectivity on the
enforcement side. He later elaborated, “There is a balance between newspaper
reports and what is happening and the public’s a right to be represented.” In
conclusion, he stated, “The public are the folks that put us here by and large, and
they have expectations and we have to be able to meet them.”
Interviewee “B” was a Superintendent of a K-12 urban school district, and
agreed with interviewee “A.” He felt that there is a balance between
organizations’ and the public’s right to know because, “The Brown Act gives you
the right to conduct business that is appropriate behind closed doors.” He
continued, “The Act says you should conduct everything else in front of the
public because you are doing the public’s business.” He elaborated by asking that
if those measures were not in place, “How else are you going to be accountable to
92
the public?” Regarding the implementation of the Act, he made reference to
another school district (District “X”) that showed they had little incentive to
follow the Act. He explained that enforcement was a “long process because it
was hard to prove with the quantity of evidence required to establish that a
violation had taken place.” Of some note is that this last sentiment was reiterated
by interviewee “D,” the Assistant District Attorney.
Interviewee “C” represented the Public-at-large and was a newspaper
reporter assigned to educational news. He also believed there was a balance that
is appropriate between the right of Boards of Trustees and school officials to
govern, and the public’s right to accountability of that governess. However, he
spoke of the frustration he felt because, as a journalist, there were things that he
wanted access to that he could not gain access to because of the “Act.”
Specifically, he wanted access to the closed session agenda items so that he, as a
professional, could use his discretion as to what to print and what not to print. He
then repeated that from a neutral standpoint, there seemed to be an appropriate
balance in the Act’s enforcement provisions.
Interview “D”, an Assistant District Attorney who heads special
operations such as high profile matters involving government corruption,
government malfeasance and things of that nature, had a different take on this
subject. He opined that the Act’s enforceability provisions do not strike a proper
balance. He believed that there should have been more tools for prosecutors to
93
use when the Act was enacted. He ameliorated that statement by stating that he
understood that the legislators did not want extensive litigation. He further stated
that he understood the legislators did not want public officials to be criminally
liable for good-faith mistakes, or mistakes made in ignorance. He also questioned
how much the legislators really wanted prosecutors to intervene in democratically
elected organs of government. He acknowledged that, “You are not going to have
a democratic form of government if a prosecutor can always second guess the
elected officials.” That said, he stated he would have liked to have seen a little bit
more stringency in the enforcement provisions of the Act. To that end, he pointed
out that there has been no successful criminal prosecution for any alleged
violations in the state of California since the Act’s inception.
In summary, the interviewees’ responses were largely consistent with the
survey data that answered the applicable questions about balance within the Act’s
enforcement provisions as written and as applied, with the exception from
interviewee “D.” This particular Assistant District Attorney believed there should
be more tools at his disposal to prosecute criminal violations.
Brown Act Enforcement: Comparison Between Civil Versus Criminal
Enforcement Rules in the Act’s Application
Survey question number 17 stated, “I view the Brown Act’s civil
enforcement rules effective, as applied.” Here, four respondents disagreed with
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the statement, nine agreed, and six were undecided (Tables 7 and 8). That means
that 69.2% of the committing answers believed the civil enforcement rules, as
applied, were balanced between the two major groups. However, an almost equal
number felt they were not in agreement or were undecided. These data
inferentially state that, as to the underlying question, there is some incongruity
that requires the following additional analysis of the data broken down between
the two groups.
For question 17, the data appeared to have a non-pattern for each side.
There was more agreement among the Superintendents/Boards than among the
Public-at-large/District Attorneys. The Superintendents/Boards had two that
disagreed, six that agreed, and three who marked undecided. These data show
that while a simple majority agreed with the premise of this question, there was an
almost equal number who either disagreed or who were undecided. On the other
hand, the Public-at-large/District Attorneys had two participants that disagreed,
three that agreed, and three who marked undecided. These data demonstrate a
non-pattern of whether or not the question’s premise was valid.
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Table 7
Survey Questions 17 and 19/Responses of Superintendents/Board Of Trustee
Officials
17
19
Disagree
Undecided
Agree
I view the Brown Act’s civil
enforcement rules effective, as
applied.
2
3
6
I view the Brown Act’s criminal
enforcement rules effective, as
applied.
5
4
2
Table 8
Survey Questions 17, and 19/Responses of Public-At-Large/District Attorneys
17
19
Disagree
Undecided
Agree
I view the Brown Act’s civil
enforcement rules effective, as
applied.
2
3
3
I view the Brown Act’s criminal
enforcement rules effective, as
applied.
4
2
2
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While neither set of participants agreed with the other, the
Superintendents/Boards agreed, by a plurality, that the Act’s civil enforcement
rules, as applied, are effective. By contrast, the Public-at-large/District Attorneys
were fairly evenly split in their answers.
For this question, the data infer that neither group has a clear belief, one
way or the other, about the premise of question 17. However, these data may
suggest that the Act is skewed in favor of the public. By contrast, the even split
of votes among the Public-at-large/District Attorneys participants takes on a
different meaning. The Public-at-large/District Attorneys had a simple majority
stating, in question 14, that the Act favored School Boards and Superintendents.
Nevertheless, in question 17, the split in data leaves undecided whether the
Public-at-large/District Attorneys believed the Act’s civil enforcement, as applied,
is actually effective and does favor Superintendents and School Boards.
Survey question number 19 stated, “I view the Brown Act’s criminal
enforcement rules effective, as applied.” Here, nine participants from both groups
disagreed with that statement and four agreed with the statement, with six
undecided (Tables 7 and 8). This means that of the committing answers, 69.2%
believed that criminal sanctions were ineffective. On the other hand, inferentially
the data stated that overall the participants are unsure of the premise of
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question 19. The apparent inconsistency in data means that question 19 needs
exploration as to whether the inconsistency breaks down along each group’s lines,
or whether there is simply indecision in both groups.
Question 19 produced rather uniform results from both sides (Tables 7
and 8). It appears that by a plurality neither side believed that the criminal
enforcement rules are effective as applied. That is, both sides had participants in
the “undecided” category and “agree” category that together equaled or exceeded
the number of those that believed the Act’s criminal sanctions were ineffective as
applied. Overall, the data infer that there is a simple majority in disagreement
with question 19 that states the Act’s criminal enforcement is effective, as
applied. Conversely, there is a dichotomy that reveals that the participants are
really undecided as to their collective and individual beliefs that the Act’s
criminal enforcement, as applied, is ineffective.
Interview Responses Overlaid Survey Questions 17 and 19
for Research Question 1
The particular interview question overlaying survey questions 17 and 19
was, “Do you think the enforcement provisions of the Brown Act, as
implemented, are effective? Tell me more?” (See Appendix Two).
Interviewee “A,” the School Board Official’s responses reflected his
district in particular to answer questions 17 and 19 of the survey. This
98
interviewee spoke in terms of preventative measures as to the effectiveness of the
Act. He stated that his district ran a “very clean organization” to avoid problems
with the Act. He also stated that the effectiveness is carried out by the
prophylactic of an in-house counsel who “directs the Board so they do not run
afoul of the Act.” So, for purposes of this question, the data presented is neutral
because his district does not have problems with effectiveness because of their
“clean operation.” Inferentially, the responses from this interviewee indicated
that the Act is effective because that district believed there was a need for
preventative measures. As he pointed out earlier, “People yell fire before
checking all the facts to see if all the facts are correct.” The implication from this
is that this district believes the criminal enforcement rules are effective.
Interviewee “B,” the Superintendent, gave similar answers. He stated that
enforcement of the Act depended on who was implementing the enforcement
provisions and for what reason. He questioned those times when there was a
minor infraction and “whoever was enforcing the Act had a motive other than
enforcing the actual provisions of the Act.” He relayed that in a particular
instance in another district (District “X”), the Act was merely used as a vehicle
for an underlying political cause. He opined that, “The impetus behind a civil suit
should be examined to determine whether it was just because ‘somebody’s pissed
off at you’ and wants retaliation.” He questioned whether the particular civil suit
he referenced was filed because there was indeed a violation of the Act. He then
99
pointed out that his example was a nearby district (District “X”) in which the
district attorney’s and the community’s standpoint were very personal, very
political and very vindictive.
The responses from interviewee “C,” the Newspaper Reporter, were
consistent with interviewee “B,” the Superintendent. Interviewee “C” believed
that Brown Act violations tended to be brought up kind of haphazardly by people,
watchdogs and journalists that “are very plugged in to what is going on at the
school board level.” Despite the previous statement, he referenced a particular
district (District “X”), that “judging by the relapses and continued flagrant
violations all over the place, the Act is very limited in its effectiveness.”
Interviewee “D,” the Assistant District Attorney, opined that enforcement
is “going to be limited by the way that the Act was written.” The data obtained
from this interviewee very much focused on the district attorney’s role in making
the Act effective. Bottom line for this interviewee was that, as written, the Act
really deters full implementation of its enforcement. He explained that the district
attorney has to gather a great deal more information than in a usual criminal case
to obtain a conviction for a Brown Act violation. He elaborated that, in fact, it
took an overwhelming amount of information to prosecute a Brown Act violation
successfully. He offered that this need to gather overwhelming evidence is one
reason why there is very limited district attorney prosecution on any type of
Brown Act case.
100
In summary, the information obtained from the interviewees paralled well
with the data from the survey questions. The responses from the interviewees
demonstrated a plurality majority. The data obtained demonstrates that for this
issue, the answer depends on the unique perspective, experiences and role played
by the particular interviewee. Therefore, the data gathered from the surveys, as
compared to the information obtained in the interviews, were congruent with each
other.
Brown Act Enforcement: Comparison Between Civil
and Criminal Rules for Willful Acts in the Act’s Application
Survey question number 25 states, “I believe the present civil penalties
schema under the Brown Act acts as an effective deterrent to those who would
want to willfully disregard the Act’s requirements.” As presented in Tables 9
and 10, 11 respondents disagreed with the statement, 5 agreed, and 3 were
undecided. Inferentially, the data suggests by 68.8% that the Act is ineffective in
its application when there is a willful disregard for the Act’s requirements. Once
again, that majority is a plurality rather than a simple majority. Eight participants
were either in agreement or undecided that the Act was effective against a willful
disregard for the Act’s requirements. These results require a further review of the
data for each side. The particular interview question that overlaid survey
questions 25 and 27 was, “What do you think about the civil and criminal
enforcement provisions for violations of the Brown Act (Appendix B).
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Table 9
Survey Questions 25 and 27/Responses of Superintendents/Board of Trustee
Officials
25
27
Disagree
Undecided
Agree
I believe the present civil penalties schema
under the Brown Act acts as an effective
deterrent to those who would want to willfully
disregard the Act’s requirements.
6
3
2
I believe the present criminal penalties
schema under the Brown Act acts as an
effective deterrent to those who would want
to willfully disregard the Act’s requirements.
5
3
3
Table 10
Survey Questions 25 and 27/Responses of Public-At-Large/District Attorneys
25
27
Disagree
Undecided
Agree
I believe the present civil penalties schema under
the Brown Act acts as an effective deterrent to
those who would want to willfully disregard the
Act’s requirements.
5
0
3
I believe the present criminal penalties schema
under the Brown Act acts as an effective deterrent
to those who would want to willfully disregard the
Act’s requirements.
2
4
2
`
For the Superintendents/Boards, there was a majority of six participants
that disagreed, two agreed, and three who were undecided. For the Public-atlarge/District Attorneys, there was a simple majority of five who disagreed with
the question’s premise as compared to three who agreed with question 25’s
premise. By itself, the data appear to confirm that whether taken as a whole, or
broken down by groups, the participants believed the Act’s civil enforcement is
102
ineffective against those Superintendents or Board Officials who willfully refuse
to follow the Act’s requirements.
Question 27 states, “I believe the present criminal penalties schema under
the Brown Act acts as an effective deterrent to those who would want to willfully
disregard the Act’s requirements.” The data had seven participants that disagreed,
five who agreed, and seven that were undecided. Hence, there was no majority
when you considered all participants’ responses for question number 27. And, as
with every other question posed thus far, a further analysis of this data is needed
by looking at how the data broke out for each side.
Table 9 shows that for the Superintendents/Boards, five respondents
disagreed, three agreed, and three were undecided. Clearly, only by a plurality,
the Superintendents/Boards disbelieved that the Act’s criminal enforcement was
effective against those who willfully disregarded the Act’s mandates.
By contrast, the Public-at-large/District Attorneys had two respondents
that disbelieved, two that agreed, and four who were undecided (Table 10). For
question 27, the majority consisted of those who were undecided. Therefore,
there is a major dichotomy in question 27 between the Superintendents/Boards
and the Public-at-large/District Attorneys. The data infer that the
Superintendents/Boards believed the Act’s criminal enforcement is ineffective in
stopping a willful disregard of the Act’s requirements. No inference can be drawn
103
from this question’s data results as to the Public-at-large/District Attorneys
because there was a significantly statistical number not committing, or undecided.
Interview Responses Overlaid Survey Questions 10 to 15
for Research Question 1
Interviewee “A,” the Board of Trustee Official, acknowledged that his
data were obtained from what he observed in other districts. He stated that
sometimes those who enforce the Act are “a little overzealous in their
enforcement because they do not have all the facts.” He likened it to “someone
yelling fire and there is not a fire” merely because of overreacting to a situation
before checking the facts. This data does not answer survey questions 25 and 27
directly. Given the preceding, this author believes by inference that interviewee
“A’s” conclusion was that Boards of Trustees do not deliberately and willfully
disobey the Act.
In marked opposition, interviewee “B,” the Superintendent, gave a
different answer. He stated he believes that the penalties are insufficient for the
“most egregious” violations. As he stated,
There’s little incentive to follow (the Act). It’s a very long process. It’s
incumbent upon those making the challenge to prove the violation. You
very seldom hear, other than certain instances, of anyone actually having
enough evidence that there has been a violation; let alone taking any
action on it.
104
The following comment of his sums it up best. “Enforcement is a whole
other issue because if nobody blows the whistle, how is the public going to know
unless somebody blows the whistle on what is going on behind closed doors?”
In similar fashion, interviewee “C,” the Newspaper Reporter’s, opinion
mirrors interviewee B’s above-stated beliefs. In answer to whether civil
violations enforcement is sufficient, he gave the following response. “Well, I’d
like to think so, but given my experiences dealing with “X” Unified School
District, that doesn’t seem to be the case there. There seems to be continued and
very flagrant violations of the Brown Act over about a 3-year period from about
2005 to 2008.”
Interviewee “D,” the Assistant District Attorney, implied from different
answers that civil and criminal sanctions are currently insufficient to deter a
Board of Trustees against willful disregarding of the Act’s provisions. This is
shown by his following statement, “I suppose that the double mental intent, plus
the requirement of it being in a meeting, plus the requirement of action being
taken, is probably the reason why there’s no recorded successful criminal
prosecution of the Brown Act in its entire over half century of history.” He also
stated,
Right now, the way the balance is struck, the public bears the risk because
the elected official cannot be prosecuted [civilly]. Moreover, if you have
lawyers that tell you its okay, then the most you can do as a prosecutor is
to go to court, litigate a Writ of Mandate or Motion for Declaratory Relief,
and then get the city council or whatever to be ordered to comply with the
law . . . and the most you get are your costs back. Why is that?
105
Discussion of Reported Data to Research Question 2
Balance in Enforcement Provisions
Between the Main Participants
Research Question 2 asks, “Relative to school districts, does The Brown
Act, as written, strike an appropriate balance through its enforcement provisions
between its main participants: public officials and the public-at-large?” The data
from Table 2 provides the basis for this answer as to the sample size of this
survey. Specifically, questions numbered 10, 11, 12, 16, 18, and 20 speak to this
question. The interview questions that overlaid these survey questions are, “What
is your opinion about whether the Brown Act’s enforcement provisions, as
written, have struck a balance between school boards and/or superintendents’
right to govern and the right of the public-at-large to accountability of that
governess? Tell me more?” Also, “Do you think the enforcement provisions of
the Brown Act, as written, are effective?” Last, “What do you think about civil
and criminal provisions for violations of the Brown Act?” (Appendix B).
Survey question number 10 states, “I view the Brown Act enforcement
rules, as written, biased in favor of the public-at-large.” As to the limited sample
size of 19, eight disagreed, eight agreed, and three were undecided. These
responses are polarized to the question at hand and provide no meaningful data by
themselves.
106
Survey question number 11 states, “I view Brown Act enforcement rules,
as written, biased in favor of school boards.” Here, 10 disagreed, 5 agreed, and 4
were undecided. Therefore, 66.7% agreed that the enforcement rules were
unbiased as to school boards. Inferentially, these participants viewed the Act
balanced as written. However, this question must be balanced with the answers to
question 12, since this one question is the third leg of the triangle of questions 10,
11, and 12 in this area of inquiry.
Survey question number 12 states, “I view Brown Act enforcement rules,
as written, non-biased between school boards and superintendents on the one side
and the public-at-large on the other.” Here, seven disagreed, eight agreed, and
four were undecided. Of those committed to one side or the other, the answers
are substantially the same as question 10. This means that the Act, as written, has
a dichotomy depending upon the participant’s viewpoint.
Survey question number 16 states, “I view the Brown Act’s civil
enforcement rules effective, as written.” Here, four disagreed, nine agree and six
were undecided. Therefore, 69.2% agree that the enforcement rules are effective.
Inferentially, these participants agree that the Act is balanced, as written, for civil
enforcement rules. However, once again the large number of undecided
participants leaves a conclusion that begs for more analysis.
Survey question number 18 states, “I view the Brown Act’s criminal
enforcement rules effective, as written.” Here, nine disagreed, three agreed, and
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seven were undecided. While 75% of the committed answers believe the criminal
enforcement rules to be effective as written, a statistically significant 36.8% were
undecided. From this, the data could be argued that the Act was biased, as
written, as to the effectiveness of criminal enforcement. The data could also be
argued that this question is foundational to, and subject to, question 20’s results.
Survey question number 20 states, “I believe the standard for criminal
conviction under the Brown Act, as written, should be lowered from a specific
intent crime to some other lesser standard for conviction of a crime.” Here, six
disagreed, eight agreed, and five were undecided (Table 2).
For Research Question 2, the above would suggest, given the
substantially equal number of committed responses one way or the other, that the
Act is balanced, as written. On the whole, though, once again the data provided a
dichotomy, if not a somewhat confusing result as to whether the Act strikes an
appropriate balance in its enforcement as it is currently written.
Balance as to Provisions of the
Act Broken Down by Groups
Not surprising, question 10’s responses were similar to question 13’s
responses. Question 10 reads, “I view Brown Act enforcement rules, as written,
biased in favor of the public-at-large.” Once again, the Superintendents/Boards
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believed the rules, as written, favored the public (Table 3). The Public-atlarge/District Attorneys disagreed with that position (Table 4).
In question 11, “I view Brown Act enforcement rules, as written, biased in
favor of the pubic at large,” the Superintendents/Boards overwhelmingly believe
that the Act, as written, favors the public (Table 3). Curiously, the Public-atlarge/District Attorneys yielded inconsistent, or discordant, results that were
uniformly split between disagree, agree, and undecided (Table 4). One would
expect, as occurred with Superintendents/Boards, for there to be a strong majority
in agreement with the premise of question 11 from the Public-at-large/District
Attorneys.
Question 12, “I view Brown Act enforcement rules, as written, non-biased
between school boards and superintendents on the one side, and public-at-large on
the other,” yielded results similar to question 15. That is, for consistency, one
would have expected a uniform disagreement vote from both sides. Referring to
Tables 3 and 4, the Superintendents/Boards disagreed with that premise, while the
Public-at-large/District Attorneys were split into two fairly equal camps of those
who disagreed, and those who agreed. By the responses given, the Public-atlarge/District Attorneys were discordant among themselves and consistent with
their previous responses to survey question 11.
For question 16, “I view the Brown Act’s civil enforcement rules
effective, as written,” continuity prevailed with the Superintendents/Boards’
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responses to previous questions. That is, Superintendents/Boards believed the
Act, as written, is ineffective as to enforcement provisions (Table 3). In similar
fashion to earlier questions, the Public-at-large/District Attorneys were evenly
divided in their responses (Table 4). This represented a consistency of position
within each group to this line of questions, while yielding a dichotomy between
the two groups themselves.
Question 18, “I view the Brown Act’s criminal enforcement rules
effective, as written,” yielded similar results for the two sides (Tables 3 and 4).
By simple majority each side disagreed with the premise of this question. Yet,
each had undecided participants almost equal to that of those who disagreed.
Therefore, one may deduce from the responses to this question that both sides’
marginal beliefs on this issue yielded non-pattern results.
Question 20, “I believe the standard for criminal conviction under the
Brown Act, as written, should be lowered from a specific intent crime to some
other lesser standard for conviction of a crime,” appears to be a stand-alone
question in its premise. Yet, this question’s results also apply to Research
Questions 3 and 4. Question 20 is folded into the study’s Research Question 2
because it inferentially gives data to Research Question 2 as presented. Once
again, the Superintendents/Boards believed the standard should be lowered, while
the Public-at-large/District Attorneys, by simple majority, chose not to do so.
With only this data, one cannot explain why those who are subject to penalties
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would want to make it easier for conviction in light of their belief that the Act
already favors the public. Conversely, this data is inconsistent with why those
who enforce the Act would want to keep the high standard for criminal sanctions
when they indecisively responded that the Act was in favor of
Superintendents/Boards.
Interview Responses Overlaid the Survey Questions
for Research Question 2
Interviewee “A,” the Board of Trustee Official, stated that there is an
appropriate balance in the way the Brown Act is written. Interviewee “B,” the
Superintendent, agreed with interviewee “A,” but added that the Act gives the
right to conduct business that is appropriate behind closed doors. “Otherwise it
[the Act] says that you should conduct everything else in front of the public
because you are doing the public’s business.” He continued, “If the Act is not set
in place this way, then how else are you going to be accountable to the public?”
Interviewee “C”, the Reporter that represents the Public, stated that “from a
totally neutral standpoint, there is a balance that is appropriate.” As stated before,
he then expressed frustration as a journalist because there are things that
journalists want access to for which they can not gain that access. He finished by
stating that it does seem that there is an appropriate balance in the way the Act
was written.
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But, interviewee “D,” the Assistant District Attorney, took a different
stance. This stance may well explain the data differences in the answers to survey
questions 10, 11, and 12. He opined that the Brown Act’s enforceability
provisions did not quite strike the proper balance. He supported that opinion by
stating that, “The Act should have given more tools to prosecutors when the Act
was enacted.” In explaining his understanding of why that may be so, he stated
that, “it resulted in prosecutors being very limited in what they can do.” But
again to repeat what was quoted from him earlier, “How much do you want
prosecutors to intervene in democratically elected organs of government?” He
went on, “You are not going to have a democratic form of government if you have
a prosecutor always second guessing the elected officials.” He then reiterated that
he would have preferred more stringent enforcement rules and stated that the lack
of a successful criminal prosecution in California is proof enough of the
inadequacies of the enforceability provisions
Discussion of Reported Data to Research Question 3
Does the Brown Act Provide Adequate
Provisions for Willful Violations:
Research Question 3 asks, “If boards of trustees and/or school officials
continuously and actively refuse to comply with the Act, does this mean there is a
need to revise the Act’s civil and/or criminal sanctions to provide meaningful
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accountability?” This question is answered indirectly through survey questions
numbered 25 and 27 (Tables 9 and 10). The interview questions that overlaid the
survey questions 25 and 27 were as follows. The first question was, “What is
your feeling about Brown Act issues that a board of trustees or superintendent
may want to circumvent so that they can carry out their responsibilities without
unwarranted outside interference?” The second question asked was, “What is
your opinion about instances when a board of trustees or superintendent deems it
appropriate to skirt Brown Act regulations because of the particular issue or
circumstance at hand?” The third question asked was, “What do you think about
the civil and criminal enforcement provisions for violations of the Brown Act?”
(Appendix B).
Survey question number 25 states, “I believe the present civil penalties
schema under the Brown Act acts as an effective deterrent to those would want to
willfully disregard the Act’s requirements.” Here, 11 disagreed with this survey
question, 5 agreed, and 3 were undecided. That means 68.8% of the participants
agreed that the present civil penalties schema is an ineffective deterrent to those
who willfully refuse to comply with the Act. One may deduce from this that there
is a need to revise the Act’s civil penalties.
Survey question number 27 states, “I believe the present criminal penalties
schema under the Brown Act acts as an effective deterrent to those who would
want to willfully disregard the Act’s requirements.” Here, seven disagreed, five
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agreed, and seven were undecided. The data state that the committing participants
are substantially the same on one side or the other, but the seven undecided
responses are statistically significant given the small sample size.
Interview Responses Overlaid the Survey Questions for
Research Question 3
Interviewee “A,” the School Board Official, stated that prosecution should
take place for serious and knowing violations. In answer to one question about
fining offending officials, he opined that over time he expected that violations
would diminish. However, he did elaborate that, “We have laws on the books
against running stop signs, and people still run them.” Inferentially, interviewee
“A” believed that with sufficient penalties, the violations would still take place,
but less so over time.
Interviewee “B,” the Superintendent, answered this question by stating
that he believed there was insufficient incentive to follow the Act’s requirements.
He stated that, “If there was personal responsibility with fines, you would
probably have fewer violations.” He added, however, that he would not want
district attorneys involved because,
They are elected officials who may be politically motivated for the actions
that they take. I understand their edict is to enforce the laws written in the
books but you and I both know that politicians sometimes play by a
different set of rules. So I guess the cleaner way would be to have a judge,
or someone who does not have a political career at stake, or needs to get a
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name for themselves, be the one who would decide what the penalty is or
what would occur.
Interviewee “C,” the Newspaper Reporter speaking on behalf of the
Public, addressed Research Question 3 by stating that when it is illegal, it is
disturbing that they [the Board or Superintendent] would choose to violate their
responsibilities because, “Elected officials are responsible to the public and they
are accountable to the taxpayer.” He went on to say that he believed that the
current schema of the Act can sufficiently rein in a Board. He gave as an example
District “X.” He stated that, “The current schema had done so because of district
attorney’s prosecutions and warnings of civil prosecution conveyed through very
stern letters.”
Interviewee “D,” the Assistant District Attorney, stated that there are parts
of the Act that are well written, but that the enforcement provisions were
inadequate. He went on, “I think there’s a consciousness on the part of many that
they are inadequate.” In response to the question about fining individuals for not
following the Brown Act, he answered extensively. Capsulated, he believed that
if there were personal fines, there would be a less cavalier attitude about not
following the Act. He also believed officials would “make doggone sure to
educate themselves on the Brown Act and to make sure that their attorney,
whoever that person is, is truly competent to advise them on the Brown Act.” He
further stated, “They’ll attend the proper courses which are available. They’ll ask
the appropriate questions of either the Attorney General or the District Attorney
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before plunging off into a decision or a procedure that may violate the Brown
Act.”
Discussion of Reported Data to Research Question 4
Ascertaining a Need for the Brown Act’s
Enforcement Regulations
Survey question number 8, “I view Brown Act regulations as necessary,”
had 2 respondents that disagreed, 17 that agreed, and 0 undecided (Table 2).
Survey question number 9, “I view Brown Act enforcement rules as necessary,”
had 2 respondents that disagreed, 17 that agreed, and zero that were undecided.
Given the total sampling reporting size of 19, it is clear that each group believes
The Brown Act is necessary and its enforcement is necessary. Of note, though, is
that the two “disagrees” came from the Superintendents/Board of Trustee
Officials. This minority notwithstanding, the basic premise for this study stands
as a uniform belief that The Brown Act is necessary as a legislative schema.
Although there appears to be a uniform belief in the necessity of The Brown Act,
examination between the two groups provides richer data as to what this “uniform
belief” really means.
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Need to Retool the Act’s Sanctions, What Forms
Would They Take, All Participants
Research Question 4 asks, “If there is a need to retool the Act’s sanctions
for active non-compliance, what should those sanctions look like statutorily and
how should those sanctions be triggered?” Referring to Table 2, this research
question is answered directly and indirectly by survey questions number 21, 22,
23, 24, 26, 28, 29, and 30.
Question 21 states, “I believe that a minor failing to follow the Brown
Act’s requirements should lead to a fine as a penalty, but no jail time.” Here, 5
disagreed, 10 agreed, and 4 were undecided. These responses suggest that no
criminal action other than an infraction should occur. An infraction, in the State
of California, is punishable only as a fine (California Codes, 2009d, §19.6, 2009).
This represents a change from the present statutory schema which does allow for
jail time for Brown Act violations within certain narrow conditions.
Question 22 states, “I believe that a serious failing to follow the Brown
Act’s requirements should lead to a fine as a penalty, but no jail time.” Here, six
disagreed, seven agreed, and six were undecided. The responses to this question
were inconclusive since the six undecided responses are a statistically significant
number for which no inference one way or the other could be drawn. The
deduction from these responses is that it is inconclusive whether the Act should
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change from its present statutory schema that does call for the possibility of jail
time.
Question 23 states, “I believe that a minor failing to follow the Brown
Act’s requirements should lead to a fine and jail time as penalties.” Here, 15
participants disagreed, 1 agreed, and 3 were undecided. These responses imply
that no change is needed to the present statutory schema since minor offenses are
not subject to a fine or jail time as penalties.
Question 24 states, “I believe that a serious failing to follow the Brown
Act’s requirements should lead to a fine and jail time as penalties.” Here, seven
participants disagreed, eight agreed, and four were undecided. These responses
show that half of the participants would like the Act to change to having fines and
jail time, and half would not. Under The Brown Act, a criminal action is an
egregious and intentional act followed by taking action on a subject about which
the public had a right to know. These responses show that it is inconclusive as to
whether the Act should change from its present statutory schema that calls for the
possibility of jail time, but not fines.
Question 26 states, “I believe there should be civil fines as penalties
assessed to the individuals who fail to follow the Brown Act’s regulation.” Here,
5 disagreed, 11 agreed, and 3 were undecided. Of the committing participants,
68.8% believed that fines should be assessed for merely failing to follow the Act.
Since the Act presently is silent on assessing fines for mere failure to follow the
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Act, then the responses suggest a change to the present statutory schema is
necessary.
Question 28 states, “I believe the district attorney’s enforcement of civil
penalties is vital to ensure Brown Act’s compliance by boards of trustees and
superintendents.” Here, 6 disagreed, 13 agreed, and 1 was undecided.
Overwhelmingly, the committing participants believe the district attorney is
necessary to enforce compliance. Therefore, in this regard the participants
believe the law should remain unchanged.
Question 29 states, “I believe the District Attorney’s enforcement of
criminal penalties is vital to ensure Brown Act compliance by boards of trustees
and superintendents.” Here, 6 participants disagreed, 10 agreed, and 2 were
undecided. This means 62.5% of the committing participants believed the current
statutory schema should remain unchanged. As for the 37.5% who indicated that
they were against the district attorney’s enforcement, other survey questions
concerning criminal prosecution had similar mixed results. Therefore, this 37.5%
represents a certain degree of consistency in responses throughout the Survey
Questionnaire.
Question 30 states, “I believe there should be no criminalization for boards
of trustees and superintendents that intentionally violate the Brown Act.” Here,
14 committing participants disagreed, 4 agreed, and 1 was undecided. Once
again, a majority of participants believe there should be criminalization for
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intentional violations of the Act. In this regard, these participants believe the Act
should remain unchanged. However, once again a minority, similar to other
responses in the Survey Questionnaire, believe there should be a
decriminalization of intentional violations of the Act.
Interview Responses Overlaid the Survey Questions
for Research Question 4
Interviewee “A,” the Board of Trustee Official, holds that people may not
know they are violating the Brown Act. Therefore, he concludes that when it
comes to prosecution, it should be based on the fact that people were knowingly
violating the Brown Act; not on speculation that they were violating the Brown
Act. He gave as a scenario in which three members (of a five-person Board) meet
in an elevator by chance. While in the elevator, they end up discussing something
they should not be discussing, therefore violating the Brown Act. This he
believes should not be prosecuted because there was no direct intent for that
conversation. Having said that, he stated that, “We [Public Officials] have to stay
within the boundaries of the law as written.” But again, he reiterated that is why
his district has an in-house counsel, “to keep the Board from running afoul of the
Act as written.”
Interviewee “B,” the Superintendent, stated that he believes the Act is
clear. “I think when you are either a member of the elected body who’s governed
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by the Brown Act, or the public official who’s employed by the body who’s
covered by the Brown Act, you either buy into the Act, or you don’t. So I think
they’re [the Act’s provisions as written] probably appropriate.”
Interviewee “C,” the Newspaper Reporter speaking on behalf of the
public, took a different approach to this line of questions. “We [the newspapers]
want to basically educate the agency about the Brown Act and why it’s important
to follow the Brown Act; and what our rights are under the Brown Act because
that’s much more effective than taking it to court.” However, in an earlier
statement he opined, “California doesn’t do it [assess fines] because the law
makers were trying to strike a balance between trustees and superintendents that
their acts were not actually out of malice but only because they were simply
unaware and unfamiliar with the Brown Act and how to comply with it.” The
conclusion here is that the Act, as written, is balanced.
Interviewee “D,” the Assistant District Attorney, believes that the Act’s
enforcement provisions are not as effective as they could, or should be. “Part of
the function of sanctions or the law that has sanctions is to deter those violations.
I think that in that regard the Brown Act in California could be amended to make
those sanctions a little stiffer to deter violations more than it currently does.”
Here, the data state that there is an imbalance in the manner the Act’s
enforcement provisions were written. “My [the district attorney’s] opinion is that
the Brown Act’s enforceability provisions did not quite strike the proper balance.”
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Balance as to Enforcement Provisions of the Act
This author believes survey question 20 provides data to support Research
Question 4. Survey question 20 stated, “I believe the standard for criminal
conviction under the Brown Act, as written, should be lowered from a specific
intent crime to some other lesser standard for conviction of a crime.” As set out
above, question 19’s responses show that both groups believe the Act’s
enforcement rules, as applied, are ineffective (Tables 7 and 8). Therefore, it
appears the Superintendents/Boards are stating in their responses to question 20
that there does need to be a change (Table 2). Interestingly, the Public-atlarge/District Attorneys concur, but not quite as strongly (Tables 3 and 4).
Referring to Tables 9 and 10, study questions 25 and 27 seem to have
dissimilar results when asking about the civil penalty schema and the criminal
penalty schema. Question 25 declared, “I believe the present civil penalties
schema under the Brown Act acts as an effective deterrent to those who would
want to willfully disregard the Act’s requirements.” Both sides disagreed with that
premise. This disagreement suggests that a change is necessary to effectuate a
civil penalty schema that would act as an effective deterrent to those who would
willfully disregard the Act’s requirements.
Question 27 set out, “I believe the present criminal penalties schema under
the Brown Act acts as an effective deterrent to those who would want to willfully
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disregard the Act’s requirements.” The responses reflected discordance between
the two groups. For Superintendents/Boards, a simple majority disagreed with the
question’s premise. For the Public-at-large/District Attorneys, the majority were
undecided, with two participants each who disagreed, and agreed. This pattern of
responses suggests the Public-at-large/District Attorneys were indecisive as to the
premise of this survey question.
The answer to Research Question 4 appears to state that
Superintendents/Boards believe that there needs to be a change to the Act’s
criminal schema. On the other hand, it appears that the Public-at-large/District
Attorneys are non-committal or present indecisiveness in answering this research
question.
Need to Retool the Brown Act’s Provisions for
Active Non-Compliance by the Groups
Research Question 4 asked, “If there is a need to retool the Act’s sanctions
for active non-compliance, what should those sanctions look like statutorily and
how should those sanctions be triggered?” The survey questions set out below
answer this research question. The results are seen in Tables 2, 3, and 4, using the
following survey questions.
Question 21 set out, “I believe that a minor failing to follow the Brown
Act’s requirements should lead to a fine as a penalty, but no jail time.” The
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responses reflected continuity between the two groups. A majority of the
participants believed the Act’s current status of non-jail time for minor offenses
should remain unchanged. Referencing Table 3, six of the
Superintendents/Boards agreed with this premise and in Table 4, four of the
Public-at-large/District Attorneys believed this premise to be true. By a simple
majority, both groups believed there should be no change to the statutory schema
of no jail time for minor offenses. However, the fact that this same majority
believed a fine is appropriate for minor Brown Act transgressions would be a
change to the present statutory schema.
Question 22 stated, “I believe that a serious failing to follow the Brown
Act’s requirements should lead to a fine as a penalty, but no jail time.” There was
a discordant response between the two sides (Tables 3 and 4). By a simple
majority, Superintendents/Boards believed that fines should be the penalty for “a
serious failing to follow the Brown Act’s requirements.” This represents a change
in the Act’s present criminal schema. That simple majority is consistent with the
other survey questions included in this discussion. On the other hand,
Superintendents/Boards had an almost equal number of undecided, demonstrating
some indecisiveness on this question for this group. Referencing Table 4, the
Public-at-large/District Attorneys believed that for a serious violation of the Act
there should be no jail time. This represents maintaining the Act’s status quo that
presently requires specific intent on two levels. However, in that same survey
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question, the majority also believed in a fine as a penalty. The ability to assess
fines under the Act does represent a change to the Act.
Question 23 sets out, “I believe that a minor failing to follow the Brown
Act’s requirements should lead to a fine and jail time as penalties.” This
perception was overwhelmingly rejected by Superintendents/Boards and by the
Public-at-large/District Attorneys (sees Tables 2, 3, and 4). This represents no
change in the Act’s current mandates.
Question 24 sets out, “I believe that a serious failing to follow the Brown
Act’s requirements should lead to a fine and jail time as penalties.” The
responses again showed discordance between the two groups (Tables 3 and 4).
The Superintendents/Boards disagreed that there should be a fine and jail time as
penalties for a serious failing to follow the Act. However, the Public-atlarge/District Attorneys believed there should be both a fine and jail time. These
positions represent no change to the Act by the Superintendents/Boards and a
change to the Act by the Public-at-large/District Attorneys. Presently, the Act
calls for no fines as a penalty. Further, if reduced to just a “serious” failure, then
the standard for criminal behavior would make it easier to commit and easier to
prosecute under the Act. Hence, this would also represent a change to the Act.
Question 26 stated, “I believe there should be civil fines as penalties
assessed against the individuals who fail to follow the Brown Act’s regulations.”
Superintendents/Boards’ responses were indecisive since there were four who
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disagreed, five who agreed, and two who were undecided. However, the Publicat-large/District Attorneys voted overwhelmingly in favor of assessing fines
against individuals who failed to follow the Act’s regulations (Tables 3 and 4).
For those that believe fines should be assessed against individuals, this opinion
suggests a change to the Act’s regulatory enforcement schema.
Question 28 set out, “I believe the District Attorney’s enforcement of civil
penalties is vital to ensure Brown Act compliance by boards of trustees and
superintendents.” Again, the responses by the Superintendents/Boards
represented indecision in the responses since there were five participants who
disagreed, six agreed, but none who stated undecided (Table 3). For the Publicat-large/District Attorneys’ group, seven of the eight responses believed the
district attorneys’ enforcement of civil penalties is vital to the Act. For those who
believed there should be district attorney involvement in enforcement of civil
penalties, this belief represents no change to the Act. Obviously, for those who
believed there should be no district attorney involvement, this belief represented a
change to the Act.
Question 29 states, “I believe the District Attorney’s enforcement of
criminal penalties is vital to ensure Brown Act compliance by boards of trustees
and superintendents.” The Superintendents/Boards had six participants who
disagreed, three who agreed, and two undecided. This represents a change in the
Act, and quite frankly, a change in California’s penal system. It is axiomatic that
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penal (criminal) prosecution is brought forward at the local level in this state
primarily through county district attorneys’ offices. The data was unclear as to
who the Superintendents/Boards had in mind if the district attorneys’ offices were
not the prosecutors. Interviewee “B,” the Superintendent, presented an interesting
conceptual model that had congruence in its presentation. On the other hand,
seven of eight Public-at-large/District Attorneys favored the Act’s current schema
of the district attorneys prosecuting criminal charges when warranted.
Question 30 set out, “I believe there should be no criminalization for
boards of trustees and superintendents that intentionally violate the Brown Act.”
There was overwhelming continuity between each group (Tables 2, 3, and 4).
Each group believed that there should be criminalization for those who
intentionally violate the Brown Act. This represents no change in the Act’s
present enforcement schema. However, for the three Superintendents/Boards’
responses that disagreed with this premise, and the one response from the Publicat-large/District Attorneys group who disagreed, it is apparent that there is a
pocket of participants who would change the law from its current criminal
enforcement under the Act to having no criminal enforcement at all.
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Interview Responses Overlaid the
Survey Questions 21-24, 26, and 28-30 for Research Question 4
Interviewee “A,” the Board Trustee Official, had no overall impression
regarding this issue because his board had never received either civil or criminal
sanctions. “If we haven’t really been hit with any sanctions it’s kind of hard to
respond to that question . . . because I’m not familiar with sanctions.” When it
came to the discussion about a possible fine schema, he responded, “I don’t know
what happens in the 29 other states which have a fining system. I would like to
know more about those 29 other states. But I think that we would see more
adherences to follow the Brown Act with fines in place.” His most meaningful
response was,
We have to stay within the boundaries of the law. If, in fact, they [other
states] do have these (fines) . . . I would like to know if it’s done anything
to affect people’s behavior one way or the other. What has happened as a
result of that in these states where they are fined? I mean do they still get
a lot of violations of the Brown Act or have they seen a diminishment over
time . . . but I would expect that violations would diminish over time.
Interviewee “B,” the Superintendent, believed that the Act needed to be
looked at regarding changing the enforcement provisions. He thought the Brown
Act, as written, had good expectations. “It sets forth what the expectation is
among the public; what they can expect from us.” He repeated his concerns
regarding the political influences over the Act’s enforcement. “If you could
remove the politics from it and the personalization that is created by the different
entities who oversee different political bodies, I would revise the system and
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separate the enforcement out and operate it outside the political arena.” He
thought that there could be an intermediary step that would allow the public to
come forward when it believed that there is a violation of the Brown Act. He
believed the public could contact an Administrative Law Judge, or whomever,
and make allegations of wrongdoing under the Act. That administrative person
could then hear or deal with the complaint as someone who was a specialist or
extremely knowledgeable with regards to the Brown Act and the laws that
surround it. He elaborated,
Perhaps the criminal and civil side stays where it is, but you only get there
if you’re referred by this intermediary body who decided that there really
are some egregious issues here with regards to violation that have gone on.
Perhaps then you should be referred to the civil or criminal side for
prosecution.
Interviewee “C,” the Newspaper Reporter representing the public,
believes that he would look for evidence elsewhere that indicates whether there
are different enforcement provisions that are more effective or seem to deter
Brown Act violations. According to interviewee “C,” only if he saw something
that demonstrated effective change, would he then want that kind of revision.
However, when informed of the fact that 29 other states have a fine schema
attached to their “Sunshine Laws,” he responded that he thought
It certainly would make a difference. That’s probably why 29 other states
do it. I can only assume that California doesn’t do it because the law
makers were trying to strike a balance between trustees and
superintendents that maybe their actions weren’t actually out of malice but
were simply because they were unaware and unfamiliar with the Brown
Act and how to comply with it.”
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Interviewee “D,” the Assistant District Attorney, replied to the author’s
information concerning a fine schema in 29 other states. He indicated that he
would certainly give strong consideration to having individual monetary
sanctions. He stated, “Frankly, I would also put other sanctions in there like I
mentioned earlier . . . . A person is either removed from office or precluded from
running for that same office again if they actually participated in a violation of the
Brown Act.” He went on to say that, “You would have to work with the civil or
the criminal sanctions to try to come up with some language that would protect
elected bodies from overzealous district attorneys.” He wanted to protect elected
bodies from unwarranted intrusion by a district attorney or prosecutor, yet at the
same time not provide a complete “get out of jail free card” for any knowing
violations of the Brown Act. He suggested focusing on two areas, individual
liability by fines, preclusion from the office or from running for that office again,
and then crafting a different standard for criminal violations than the one
presently in place in the Act. He also expounded that he would like to restructure
the multilayer specific intent crime requirement for prosecution so that
prosecution was viable.
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Overall Summary for All Research Questions
Research Question 1: Does The Brown Act strike an appropriate balance
between the right of boards of trustees and school officials to govern, and the
public’s right to accountability of that governess?
In answer to the underlying Research Question 1, it appears at first blush
that the data provided inconclusive results. However, this apparent inconclusive
result is reconciled when one looks to the data that consider the individual issues
of overall balance, civil enforcement vis-à-vis criminal enforcement, and willful
behavior.
For questions survey questions 13, 14 and 15, there was a sharp
polarization as to each group that believed the other side had the balance of
power. This notwithstanding, there was a hint from both sides that the biased
position promoted an effectiveness to the Act. Inferentially, therefore, the data
state that if there is effectiveness, then an appropriate balance exists in the
application of the Act. Nevertheless, each group opined that the Act is skewed in
favor of the other for enforcement purposes.
For survey questions 17, 19, 25, and 27 the data state that the Act is
ineffective for civil and for criminal enforcement. This holds true whether the
question is asked in general or whether it asks if the Superintendents/Boards
willfully choose to disregard the Act’s mandates. Therefore, this data infer that
both sides believe the Act is skewed toward Superintendents/Boards. This is so
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because a lack of the ability to enforce it against Superintendents and Board
Officials equates to an imbalance in its application in favor of
Superintendents/Boards. The specific data from the interviews are somewhat
incongruent as to the general data resulting from the survey’s responses. The data
from the general and the specific harmonize only if one rules out the hint of an
inference originally taken that the Act is effective despite each side’s claim of
bias in favor of the other side. With that inference removed, the data hold that the
Act is biased in its application toward the Superintendents/Boards, especially if
Superintendents/Boards willfully disregard the requirements of the Act.
Research Question 2: Relative to school districts, does The Brown Act, as
written, strike an appropriate balance through its enforcement provisions between
its two main participants; public officials and the public-at-large?
In summary, this study’s Research Question 2 brought mixed results from
both sides. It also showed that while there is discordance between the beliefs of
the two groups, the Superintendents/Boards’ group tended to be more uniform in
their responses than did the Public-at-large/District Attorneys’ group. In answer
to this study’s Research Question 2, the Superintendents/Boards believed that the
Act does not strike an appropriate balance through its enforcement provisions.
However, the answer to this same question on the part of the Public-atlarge/District Attorneys appeared to be inconclusive.
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Research Question 3: If boards of trustees and/or school officials
continuously and actively refuse to comply with the Act, does this mean there is a
need to revise the Act’s civil and/or criminal sanctions to provide meaningful
accountability?
The results for Research Question 3 suggest, by inference, that the
participants are divided between civil penalties versus criminal penalties. By a
moderate majority, the participants believed that the civil penalties were
insufficient. However, given the evenly divided answers among the three choices
concerning criminal penalties, it was inconclusive as to the need to revise the
Act’s criminal penalties. Further input was provided from the interviews.
However, even consolidating the interview responses with the survey question
responses, the same dichotomy existed.
Research Question 4: If there is a need to retool the Act’s sanctions for
active non-compliance, what should those sanctions look like statutorily and how
should those sanctions be triggered?
In summary of Research Question 4, there is discordance between the two
groups when it comes to criminalization in the face of willfully disregarding the
Act. Simply stated, Superintendents/Boards want enforcement, but without
criminal penalties and without district attorneys’ involvement. Even when asked
about just a fine assessment, Superintendents/Boards showed indecision toward
acceptance or rejection of this idea. On the whole, the data demonstrated that
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Superintendents/Boards wanted enforceability without personal accountability.
This, of course, would change the Act’s current statutory schema both for civil
and criminal with one exception. The Superintendents/Boards’ group would also
lower the standard for which a criminal conviction could be successfully
prosecuted. This would take the form of adding a schema of fines both civilly and
criminally to the statutory schema.
On the contrary, the Public-at-large/District Attorneys wanted to maintain
the current enforcement provisions in general with a few tweaks to the civil and
criminal schema. One such tweak would impose a fine and jail time for a serious
failing to follow the Brown Act’s requirements. This tweak would change the
statutory schema by not just adding fines, but also by lowering the threshold for
which a criminal prosecution and conviction could result.
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CHAPTER 5
SUMMARY, POLICY ANALYSIS, AND IMPLICATIONS
Summary
The last phases of policy analysis help structure how one tells his/her story
(Bardach, 2005). In doing so, one can identify with Alice in Wonderland:
“Would you tell me, please, which way I ought to walk from here?” “That
depends a good deal on where you want to get to,” said the Cat. “I don’t much
care where” said Alice. “Then it doesn’t matter which way you walk,” said the
Cat. “So long as I get somewhere,” Alice added as an explanation.” “Oh, you’re
sure to do that,” said the Cat, “if you only walk long enough (Carroll, 1946,
p. 70).”
Alice’s journey reflects the value of open-ended naturalistic observations.
It provides the opportunity to see what there is to see without the blinders of
hypotheses and other preconceptions (Patton, 2002). It is the unique opportunity
to look where no one has ever looked before and see what the world has to show
us (Patton 2002). As stated earlier, a naturalistic design unfolds or emerges as
fieldwork unfolds (Lincoln & Guba, 1984; Patton, 2002). This is counterintuitive
for educators. Educators are desperate to “get somewhere” and are “looking for
anyone, even if it’s a dubious character like the Cheshire Cat to provide
direction”(Levin, 2003, p. 129). Borrowing from Levin, educators want to move
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in some new direction and implementation is the destination as opposed to a
journey toward what matters most.
And that is what this study has been, a journey into what was ostensibly
about whether, as a policy analysis, The Brown Act has struck an appropriate
balance of power between public school officials and the Public-at-large.
Defining the problem was the crucial first step since, “it gives you both a reason
for doing all the work necessary to complete the project and a sense of direction
for your evidence-gathering activity” (Bardach, 2005, p.1). But in the end,
defining the problem helps one tell his/her story. This study’s policy analysis has
told the story of The Brown Act as it currently exists in the culture of K-12 school
politics. It was, and is in the end, the saga of how this author traveled somewhere
in his journey along a path named The Brown Act. This policy analysis was an
attempt to bridge “all political ideologies by reliance on the normative standard of
‘maximizing welfare’ and on social science theorizing about the comparative
advantages of different institutions, for different purposes” (Bardach, 2005, p.3).
Purpose of the Study
The purpose of this study was to better understand whether there is an
appropriate balance of power between public school officials and the Public-atlarge in the context of The Brown Act. Given the historical precedence for the
need of The Brown Act as a “Sunshine Law” in the State of California, its current
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form brings much debate. The debate centers on its effectiveness and balance of
power. Also, the debate focuses on what the enactors intended regarding striking
a balance of power between school and public officials on the one side, and the
Public-at-large on the other. Therefore, this study investigated the following
overarching question: Does a policy analysis support a finding that in its
application, the Brown Act appropriately strikes an appropriate balance between
the right of boards of trustees and school officials to govern, and the public’s right
to accountability of that governess?
Research Questions
Four research questions defined the overarching question and guided the
process of this study:
1. Does The Brown Act strike an appropriate between the right of boards
of trustees and school officials to govern, and the public’s right to accountability
of that governess?
2. Relative to school districts, does The Brown Act, as written, strike an
appropriate balance through its enforcement provisions between its two main
participants; public officials, and the public-at-large?
3. If boards of trustees and/or school officials continuously and actively
refuse to comply with the Act, does this mean there is a need to revise the Act’s
civil and/or criminal sanctions to provide meaningful accountability?
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4. If there is a need to retool the Act’s sanctions for active noncompliance, what should those sanctions look like statutorily and how should
those sanctions be triggered?
Methodology
The research methods for this study were qualitative in nature. The
approach was based on the principles of qualitative data collection from Patton
(2002), Bardach (2005), and Kvale and Brinkmann (2009). The qualitative
approach offered triangulation of data that strengthened the validity of the data
and the findings.
The information gathered was presented in a case study format. The use
of an interview guide and a survey instrument, in addition to the collection of
historical data, enabled the researcher to complete a thorough examination of a
policy analysis relevant to the four research questions. The use of the case study
approach in this dissertation produced an in-depth understanding of the
overarching question and the supporting four research questions.
Sample: The sampling included four interviewees who were selected at
random to represent each of the four groups of participants. Those groups were,
the board of trustees; the superintendents; the public-at-large, and the district
attorney’s office. The actual persons representing these four groups were, an
elected public school official, a superintendent, a newspaper reporter representing
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the public-at-large, and an assistant district attorney. All four had been in their
positions for at least one year and operated in the policy contexts of The Brown
Act’s enforcement provisions. The number of interviewees was limited to four to
provide rich, in-depth, and robust descriptions and material for the subject matters
discussed. The decision to limit the number of interviewees to four was also
made to maintain a sampling that reflected the limited size of the four groups of
participants.
Each interviewee was unique as to the role that he played in this balance
of power under the Act. The interviewees were within one county, except the
board of trustee member whose district bordered the county of the other three
interviewees. Although the titles and roles of each interviewee were different,
each played a piece of the puzzle in the policy analysis. That is, two had pivotal
roles in ensuring the Act’s mandates were complied with in their respective
districts. The other two interviewees had pivotal roles in enforcing the sanction
provisions of the Act.
In addition, the four randomly selected interviewees had completed a
written survey questionnaire that addressed the four research questions directly.
The questionnaire survey provided each participant’s perceptions as it related to
the four research questions.
Data Collection and Analysis: Given the amount of data from the survey
questionnaire, the first step of the analysis was to reduce the data to a more
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understandable form. Therefore, using the framework variables, a matrix for the
responses for each group was made. A matrix was made both for all participants
and for each group. The matrix was a recording of the number of participants
who responded in each category of responses according to the Likert Scaling
questionnaire designed by this author (Encarta, 2009). Given the small sampling
size of participants, the five categories of answers were converted to three. That
is, the “disagree” responses were combined with the “mostly disagree” responses.
Likewise, the “agree” responses were combined with the “mostly agree”
responses. In the Likert Scaling method, three types of responses are valid for
this scaling methodology (Encarta, 2009).
In addition, to facilitate the analysis, responses were placed in one of two
matrices. One matrix combined the superintendents’ and boards of trustees’
responses. The other matrix combined the public-at-large’s with the district
attorney offices’ responses. The pairings were decided upon by this author to
distinguish between those who follow the Act’s mandates and those who enforce
the Act’s mandates.
Next, the matrixes were coded by the survey questionnaire. The survey’s
statement questions were analyzed as to their alignment with the other survey
questions. Thereafter, this coding of survey questions by clusters was aligned
with the four research questions according to subject matter. These coded
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responses were then interpreted and analyzed in narrative form according to each
research question.
The interviews were tape recorded, face-to-face and carried out in a semistructured format. The interviews contained a uniform set of questions that
allowed for the interviewee to respond both to the question’s subject matter
directly as well as providing responses beyond the actual question (Kvale &
Brinkmann, 2009; Patton, 2002). These questions were different, from but related
to, the survey questionnaire’s statement questions. Thereafter, the tape recorded
interviews were transcribed and coded for their answers by how they aligned with
the survey questionnaire’s groupings. After coding in this methodology, the
responses were put into narrative form according to the analyses made.
Policy Analysis
Policy is about the future, not about the past or the present (Bardach,
2005). Yet, there is an old saying that in many ways essentially pronounces, “The
best predictor of the future, is the past (author unknown).” At its core, this study
really considered whether or not The Brown Act strikes a proper balance between
the expectation of enforcement by the public and the actual power to do so as
implemented. A brief summary of each research question’s conclusions is needed
here prior to examination of the following overarching question: Does a policy
analysis support a finding that in its application, the Brown Act strikes an
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appropriate balance between the right of boards of trustees and school officials to
govern, and the public’s right to accountability of that governess?
Summary/Conclusion to Research Question 1
Does the Brown Act strike an appropriate balance between the right of
boards of trustees and school officials to govern, and the public’s right to
accountability of that governess?
This question was broken into three subparts: The first one was: Brown
Act Enforcement: Balanced or Biased in Application as an Overall Proposition.
The second one was: Brown Act Enforcement: Comparison Between Civil
Versus Criminal Enforcement Rules in the Act’s Application. The third subpart
was: Brown Act Enforcement: Comparison Between Civil and Criminal Rules
For Willful Acts in the Act’s Application.
First Subpart. According to the survey questionnaire, in general, each
group believed that the Act was skewed in favor of the other as to enforcement
(Tables 3 and 4). Despite that, each group believed this biased position promoted
effectiveness to the Act, or a balance as to its enforcement provisions.
Second Subpart. The Superintendent/Board group marginally believed
that the Act is effective for civil enforcement, but is ineffective criminally (Table
7). This author believes that this holds true civilly, if the violation was
unintentional on the part of Superintendents/Boards. Here, contradictory data
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override the finding of the First Subpart that asserted that the Act was balanced as
to its enforcement provisions. This position can be taken if the discussion strictly
concerns unintentional errors versus deliberate violations. It could also explain
why, on the part of this group, there were almost as many who responded as
undecided and who disagreed. This author takes this position because of the
explanation found below in the Third Subpart discussion. Survey question 17
stated, “I view the Brown Act’s civil enforcement rules effective, as applied.” It
stands to reason that those whose responses were in agreement with question 17
believed the Act was effective when it came to unintentional civil violations of
the Act, but not so for criminal violations. The Public-at-large/District Attorneys
responded to question 17 with two that disagreed, three that agreed, and three who
were undecided. Question 19 stated, “I view the Brown Act’s criminal
enforcement rules effective, as applied.” The Public-at-large/District Attorneys
also responded to question 19 with four who disagreed, two that agreed, and two
who were undecided (Table 8). That said, the plurality of these responses suggest
that both groups are undecided with the general nature of the survey questions 17
and 19 as framed.
Third Subpart. As to all participants, a simple majority did not believe
that the present civil penalties under the Brown Act are an effective deterrent
(Table 2). But this simple majority had a plurality in its responses. Looking at
the data for both the Superintendents/Boards and the Public-at-large/District
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Attorneys, the plurality still exists. By a simple majority, each side believed the
Act was an ineffective deterrent for willful or intentional civil violations (Tables 9
and 10).
The same does not hold true for the discussion on criminal penalties as an
effective deterrent against intentional violations. The Superintendents/Boards
believed such to be the case only by a plurality, even though there was a simple
majority that did not believe the Act was effective against intentional criminal
violations (Table 9). On the other hand based on the data from the Public-atlarge/District Attorneys, no deductions could be made, nor any conclusion or
inference drawn. That is because there were as many undecided responses as
there were responses that were equally divided between disagree and agree (Table
10).
Conclusion. There is no doubt that the data are mixed as to Research
Question 1. Yet, this author believes that when one synthesizes it down to its
essence, the Act is biased in favor of Superintendents/Boards because there are no
real repercussions to this group for violations. Further, any repercussions are
general in nature as to corrective action that must be taken, but there is no
personal accountability. Without personal accountability, there is no incentive to
follow a statutory scheme, such as The Brown Act. There is also no incentive to
follow the Act if there is no integrity on the part of those who are to follow the
particular laws. The quote from interviewee “A,” the School Board Official, was
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very telling when he stated there are stop signs, yet people still run them.
However, even he conceded that if there was a schema of fines for violations of
the Brown Act, over time there would be fewer violations.
Ultimately, it is this author’s belief there is a general consensus among
Superintendents/Boards for the need of The Brown Act and accountability under
it. However, there appeared to be unwillingness on the part of some to accept
personal accountability. Further, even those who would enforce the Act do so
reluctantly because of a consciousness of integrity that persuades them from
wanting to interfere with a democratically elected official’s decisions.
Summary/Conclusion to Research Question 2:
Relative to school districts, does The Brown Act, as written, strike an
appropriate balance through its enforcement provisions between its two main
participants; public officials and the public-at-large?
The data from the survey questions and interview data for Research
Question 2 contained mixed results (Table 2). As a general principle, the
Superintendents/Boards believed the rules, as written, favored the Public-at-large
(Table 3). In opposite view, the Public-at-large/District Attorneys either
disagreed with that survey question’s premise or were split on their opinion
(Table 4). However, when asked directly if the Act was non-biased as to either
group, there was only a simple majority of Superintendents/Board responses that
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agreed. Interestingly, the Public-at-large/District Attorneys also had a simple
majority. Both groups, when considering all responses within each group, had a
plurality of responses.
When asked if the civil enforcement rules, as written, were effective, the
two groups were consistent in their responses as in the previous survey question.
However, when asked if the Act, as written, contained criminal enforcement rules
that were effective, the two groups were again similarly split in responses as a
plurality (Tables 3 and 4). The Superintendents/Boards had five participants that
disagreed, two who agreed, and four who were undecided (Table 3). The Publicat-large/District Attorneys had four that disagreed, one who agreed, and three who
were undecided (Table 4). This mirrored the responses in the previous survey
questions (Tables 3 and 4).
Interviewees “A,” the Board of Trustee Official, “B,” the Superintendent
and “C,” the Newspaper Reporter, were in agreement that there is an appropriate
balance in the way the Act is currently written. Interviewee “D,” the Assistant
District Attorney, had a different view. Focused on his position, he responded
that he wanted prosecutors to have more tools to prosecute violations of the Act.
His viewpoint, if consistent with other district attorneys, may well explain why
there was a plurality in responses to the survey questions that attempted to answer
Research Question 2.
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Conclusion. For Research Question 2, this author believes that the
participants had a clear distinction in their minds between “as written” versus “as
applied.” This author believes that if the enforcement is unequal, you can not
have a statutory structure that is balanced. By logic, one flows from the other. If
there is agreement that enforceability is suspect, how can there be equality in
statutory language that gives rise to that unenforceability? Therefore, the author
agrees with the Assistant District Attorney and disagrees with the remaining
interviewees’ responses to this line of survey questions that buttressed Research
Question 2.
Summary/Conclusion to Research Question 3
If boards of trustees and/or school officials continuously and actively
refuse to comply with the Act, does this mean there is a need to revise the Act’s
civil and/or criminal sanctions to provide meaningful accountability?
Once again the responses to the survey questionnaire relative to Research
Question 3 were mixed because of the difference in responses regarding civil
penalties and criminal penalties. By a moderate majority, both groups disagreed
that the civil penalty schema was sufficient under the Act to stop active and
continuous violations of the Act (Tables 9 and 10). However, while a simple
majority of Superintendents/Board respondents disagreed that the criminal
sanctions were sufficient, it is indeterminate with this data that the Public-at147
large/District Attorneys’ respondents agreed with the premise of survey question
27 (Tables 9 and 10).
Interviewee “A,” the School Board Official, stated that prosecution should
take place for serious and knowing violations. Upon being informed that a fining
schema exists in 29 other states, he opined that over time he expected that
violations would diminish. He also elaborated that he would want to see what
happened in those 29 other states before implementing such a change to the Act.
Interviewee “B,” the Superintendent, believed that personal responsibility with
fines would mean fewer violations, but he did not want any district attorney
involvement. Interviewee “C,” the Newspaper Reporter, opined that the current
schema was sufficient to rein in a board that actively and continuously violates
the Act, citing District “X.” Therefore, to him there was no need to revise the
current enforceability provisions of the Act. Interviewee “D,” the Assistant
District Attorney, opined that the enforcement provisions needed revamping
because of their inadequacies. When informed of the fining schema in 29 other
states, he concurred. He added those fines could take the form of removal from
office and prevention from running for that office again.
Conclusion. The data supporting Research Question 3 do suggest that a
change to the Act is necessary. However, the Superintendents/Boards
equivocated in this author’s opinion. To this author, doing a study to determine
the effectiveness of fining violators in 29 other states is tantamount to not wanting
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that schema in place. To not want a fine schema in place is similar to the recent
historical record when a change to the Act was attempted as recited earlier in
Chapter 2 of this dissertation. To this author, if there are 29 other states that have
employed a fine schema that encourages personal responsibility, then why not in
California where some claim that the Act is treated as a non-existent stop sign?
Summary/Conclusion to Research Question 4
If there a need to retool the Act’s sanctions for active non-compliance,
what should those sanctions look like statutorily and how should those sanctions
be triggered?
As background for this question, it was virtually unanimous that every
participant viewed the Act’s regulations as necessary (Table 2). It was also
virtually unanimous that all participants viewed the Act’s enforcement rules as
necessary (Table 2). The data show that Superintendents/Boards want
enforcement of The Brown Act, but without criminal penalties, or in one case,
without district attorney involvement. On the whole, the data demonstrated
enforceability without personal accountability. Of note, however, is the fact that
the Superintendents/Boards would lower the standard for which a criminal
conviction could be successfully prosecuted. On the other hand, the Public-atlarge/District Attorneys wanted to maintain the current schema with a few
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exceptions. This group wanted to lower the threshold for a successful criminal
prosecution, and this group was also ready to impose fines as penalties (Table 2).
Conclusion. The Superintendents/Boards were in favor of not only
enforcing the Act, but making it easier to criminally prosecute any serious
violations to the Act. However, this author believes that except for the Assistant
District Attorney, the other three non-attorney interviewees had no conscious
realization that they were willing to accept what they stated. This is deduced by
the fact that taking the step to lower the criminal standard makes one more
personally accountable. Yet, the data demonstrated that the
Superintendents/Boards appeared to want no real personal responsibility
associated with violations of the Act. That notwithstanding, the responses from
the Public-at-large/District Attorneys were consistent with the data from the
survey questions.
Key Findings
1. Most participants believe that The Brown Act strikes an appropriate
balance between those who govern and those who have a right to accountability
of that governess.
2. Close scrutiny reveals that in its enforceability, The Brown Act fails to
strike an appropriate balance between the key actors: those who govern and those
who have a right to accountability of that governess.
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3. California should look to the leadership of the 29 other states that have
imposed personal responsibility provisions to their “Sunshine Laws,” laws
otherwise similar to The Brown Act.
4. Since its inception in 1953, there has been no successful criminal
prosecution for violation of The Brown Act. As a result, this gives rise to a belief
of no true personal accountability. Knowing there is no personal culpability, it
seems that some Superintendents and Boards of Trustees have acted with
impunity, unintentionally or consciously. Therefore, there is insufficient
accountability for Superintendents and Boards of Trustees.
5. Superintendents and Boards of Trustees have the upper hand in the
balance of power for enforceability of The Brown Act’s provisions. Further, the
public at large and District Attorneys are unable to stop egregious violations of
The Brown Act.
Summary of Position
In the 50 odd years since The Brown Act’s inception, it has transformed
from a statutory schema of a few hundred words to its current complicated
verbiage. The enforcement procedures, to date, are ones that allow the Public-atlarge to address grievances of the Act’s violation mostly after the fact. Even then,
those remedies consist only of a Writ of Mandate or Declaratory Relief at best.
These civil court actions force the offending board to take corrective action. In
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some cases the complaining party does receive its costs back for the litigation
undertaken. But in its simplest of forms, superintendents and school board
officials have no personal accountability unless there is an egregious violation.
Even then, the burden of proof and the specific mental state of mind required,
makes prosecution virtually impossible. Indeed there has been no successful
prosecution of a violation of the Act since its inception. Knowing there is no
personal culpability, it seems likely that in the past some boards may have acted
with impunity whether unintentionally or consciously disregarding the provisions
of the Act. Therefore, this study contends there is not enough accountability on
the part of superintendents and boards of trustees when it comes to violations of
The Brown Act.
Reducing Violations: More Enforcement Tools
Against Non-compliant Violations of the Act
This author suggests a cost analysis for establishing a system that allows
for non-personal accountability. To do so, one must look at the costs of refusing
to put such a system in place versus having one in place. Currently, the public-atlarge has only one other means of enforcing The Brown Act besides the court
system. That is the draconian method of a recall election. The process is
conducted under the election laws of the State of California that allows for recall
elections of elected officials, including school board trustees (California Codes,
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2009b, Election Code §11002). If the community, or public-at-large, believes its
board, or members thereof, have continuously violated the Act, whether
unintentionally or through conscious disregard, the community can call for a
recall election. The recall election would be against offending members of the
board (California Codes, 2009b, Election Code §11002). This happened in
District “X” where there were two special recall elections within 3 years. The
special recall elections cost the district approximately $800,000.00 each
(Martindale, 2008b). This expenditure had to come from the district’s general
fund or some other revenue (Deerings California Codes Annotated, 2009, Code
§5424). In other words, the money that was taken from this school district was
supposed to be supporting the education of children and had been intended for
teachers, programs, and materials.
However, if there was a personal penalty schema in the Act that assessed a
penalty on the actual trustee who committed the violation, then this author
believes there would be less chance of a recall election. The author contends that
personal responsibility under the Act would lessen a potential galvanization of
anger by a community toward a board or board member. This, in turn, would
lessen the chance for a recall election. This personal penalty schema could be
either monetary, prevention from running for office again, removal from office, or
any combination of the preceding. The author believes that just like traffic tickets
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are intended to discourage violations of California’s Vehicle Code, personal
penalties for violations of the Act would encourage compliance with the Act.
Penalty Schema for Non-compliance
For minor violations, a penalty schema could be established. Basically, it
would be treated much like a traffic ticket is in court. This penalty would be
treated as an infraction under the Penal Code when there is a successful action for
a civil Mandamus or Declaratory Relief, or an order of a court for a board to take
certain corrective action that had been in violation of the Act (Deering’s
California Codes Annotated, 2008a, Government Code § 54960). The penalty
would be required by the court to be assessed against the offending superintendent
and/or board as to each individual who violated the Act.
If it was the superintendent and/or the entire board, then the
superintendent and/or each member of the board would each receive a penalty.
The judge would have the latitude to assess what form the penalty would be.
However, the judge would lack power to refuse to assess a penalty, except in one
narrow circumstance discussed below. One type of penalty assessment would be
monetary in nature for non-compliance violations, much like traffic tickets are
assessed monetary fines. The fines would have to be paid directly by the
offending superintendent and/or member(s) of the board directly and without
compensation from the school district. For a pattern of continuing and repeated
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non-compliance, the judge would have the discretion to assess a penalty on top of
the fine which would preclude an offending board member(s) from running for
office again. The judge would also have the discretion to remove an offending
board member(s) from office immediately. This last penalty would occur only for
repeated acts that showed a pattern of continuous and active refusal to follow the
Act.
Those types of violations that were continuous and active refusals to
follow the Act would have to fall below the standard set for egregious behavior
subject to serious criminal sanctions. Indeed, should the judge decide that the
violation was egregious enough for serious criminal prosecution, then and only
then would the judge not assess a penalty. Instead, the judge would make a
referral to a district attorney for prosecution. This non-assessment of a penalty is
necessary because of the 5th Amendment to the United States Constitution that
forbids double jeopardy (Wikipedia, 2009b). The 5th Amendment states that no
person shall be subject for the same offense twice. Therefore, if a fine is assessed,
then double jeopardy attaches and the offending superintendent and/or board
member could not be prosecuted criminally for a serious offense.
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Reducing violations: More Enforcement Tools
Against Willful and Egregious Acts
As stated earlier, the current criminal schema is complicated and creates
an overly heavy burden that has not successfully been met in prosecuting a
violation in this State since the inception of The Brown Act. Currently, only civil
relief is realistically possible. There, one goes to court under a Mandamus or
Declaratory Relief action that asks the court to order a board of trustees to take
some corrective action for its error. Again, the burden is on the Public-at-large
who may or may not be compensated for their costs from that litigation. For
instance, the common example used by the interviewees was that the trustees of
District “X” acted with seeming impunity relating to the Act. The Board of
District “X” had caught the ire of the community (Martindale, 2008b). In turn,
this caused the special elections. This author asks, instead of special elections,
why not provide the proper legal tools for prosecution as stated by interviewee
“D,” the Assistant District Attorney? Specifically, why not lower the standards
for what it takes to successfully prosecute egregious acts that violate the Act?
With this in place, personal responsibility is placed on the shoulders of those who
should govern their own actions with due care.
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Penalty Schema for Non-compliance that
is Continuous and Active Refusal
The current criminal schema should be reduced from one that takes a
specific mental intent to violate the Act, to a general mental intent crime; that is, a
crime that takes intent to do the act which is a violation of the Act. Instead of
having to assemble evidence that demonstrates that the person had the intent to
violate the Act, the prosecutor would need only evidence sufficient to prove the
person performed what was a violation of the Act. However, the act itself must
be egregious in nature, and not one merely for non-compliance. As an example,
three members of a five person board of trustees agree to meet outside a formally
noticed meeting. In that meeting, the members agree that a certain issue shall be
discussed then and later voted upon in a particular manner. Here, the egregious
nature of the criminal action is the decision to meet together in a quorum outside a
noticed hearing, to discuss a certain issue and then to decide to take action in a
particular manner.
Currently, there are many stringent requirements to successfully
criminally prosecute school board members. In the example given, there would
have to exist legally sufficient evidence that the violators intended to deprive the
public of information that the members knew, or had reason to have known, the
public was otherwise entitled to receive (Official California Legislative
Information, 2006e, Government Code § 54959). A violation would also require
157
action be taken that included a collective decision, commitment or promise by a
majority of the members of a body (Government Code § 54952.6).
One can observe that in the example given, the current elements of the
crime would be changed from the specific intent requirement of the statutes just
recited. The suggested elements of the crime under the Act would require, for the
example given, proof sufficient to prove the individuals performed actions in
violation of the Act.
The criminal penalties would remain as they are for a conviction of a
misdemeanor, jail time and fine (California Codes, 2009c, §§ 19, 19.4).
However, added would be that, if convicted, those offending persons would be
immediately removed from office and not allowed to run for that office again.
Certainly, this proposal for a penalty schema sounds harsh in nature. However,
this author is not talking about a slipup or ordinary non-compliance, but a noncompliance that is willful and the subject matter serious in nature. For example,
such egregious action could involve the expenditure of hundreds of thousands of
dollars, or actions that are deliberately set to be taken against a certain segment of
the community. The rationale here is one that was stated by the Assistant District
Attorney in his interview. To paraphrase, if there was more personal
accountability, then public officials would make sure that they knew the Act or
would consult the Attorney General’s Office, their local district attorney, or have
158
competent legal counsel, before they (the superintendent and/or board of trustees)
took action.
Implications
For Balance in The Act, Past, and Present
This study has demonstrated that most participants have simply stated that
the Act strikes an appropriate balance between those who govern and those who
have a right to accountability of that governess, past and present. Indeed, the
general belief is that the Act, as written, strikes such an appropriate balance.
However, closer scrutiny reveals that in its enforceability, the Act fails to strike an
appropriate balance between the key actors. Indeed, careful analysis has shown
that Superintendents/Boards have the upper hand as to the balance of power for
enforceability. Further, that upper hand comes from a lack of personal
accountability.
Immediate Implications
1. Although there presently, and for the foreseeable future, is the
likelihood that there is no personal responsibility provisions added to The Brown
Act, there can still be serious repercussions.
159
2. A community galvanized into anger against a board it no longer trusts,
has the option, which some communities have exercised, to force a recall election
to take place at a special election, or at a general election.
3. The cost to the district for each recall election is upwards of
$800,000.00 for a special election. This money is paid for by a district, money
which was otherwise intended for teachers, facilities, and supplies for the
education of a district’s children.
Implications For Balance in The Act in the Future
It appears from our current Governor and state legislature that there is an
unwillingness to tamper with the Act in its present form. Indeed, the one piece of
legislation, Senate Bill 1964, which was placed before the governor to close the
loophole of the Wolfe (Wolfe v. City of Fremont, 2006) decision, was vetoed by
California’s Governor. That is why this author believes that the past is a predictor
of the future. That notwithstanding, a policy analysis does not look at the past or
present, but only at the future. To that end, California needs to look to the
leadership of the 29 other states that have imposed a fining schema to enforce
their “Sunshine Laws” that are the equivalent of The Brown Act. To this author,
those 29 other states impose personal accountability, why not California?
160
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169
APPENDIX A
QUESTIONNAIRE SURVEY
1. My position is most closely associated with:
(a) Superintendency
(b) Board of Trustees
(c) Public-at-large
(d) Legislature (e) D.A.’s Office
2. I have held my present position for:
(a) 1-2 years
(b) 3-5 years
(c) 6-10 years
(d) 11-15 years (d) 16 + years
3. In my present position, I touch upon Brown Act issues:
(a) Not at all
(b) Very little
(d) Most of the time
(e) All the time
Disagree
Undecided
A
Mostly
Disagree
B
A
Agree
C
Mostly
Agree
D
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
Questions
4
5
6
7
8
9
10
I am very familiar with the
Brown Act, as written.
I am very familiar with the
Brown Act, as enforced.
My work is impacted by the
Brown Act.
I have been involved with
enforcement activities
related to the Brown Act.
I view Brown Act
regulations as necessary.
I view Brown Act
enforcement rules as
necessary.
I view Brown Act
enforcement rules, as
written, biased in favor of
the public-at-large
(c) Regularly
E
170
Appendix A, continued
Disagree
Undecided
A
Mostly
Disagree
B
A
Agree
C
Mostly
Agree
D
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
Questions
11
12
13
14
15
16
17
18
19
I view Brown Act
enforcement rules, as
written, biased in favor of
school boards.
I view Brown Act
enforcement rules, as
written, non-biased between
school boards and
superintendents on the one
side and the public-at-large
on the other.
I view Brown Act
enforcement rules, as
applied, biased in favor of
the public.
I view Brown Act
enforcement rules, as
applied, biased in favor of
school boards and
superintendents.
I view Brown Act
enforcement rules, as
applied, non-biased in favor
of school boards and
superintendents on the one
side and the public-at-large
on the other.
I view the Brown Act’s civil
enforcement rules effective,
as written.
I view the Brown Act’s civil
enforcement rules effective,
as applied.
I view the Brown Act’s
criminal enforcement rules
effective, as written.
I view the Brown Act’s
criminal enforcement rules
effective, as applied.
E
171
Appendix A, continued
Disagree
Undecided
A
Mostly
Disagree
B
A
Agree
C
Mostly
Agree
D
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
Questions
20
21
22
23
24
25
26
I believe the standard for
criminal conviction under
the Brown Act, as written,
should be lowered from a
specific intent crime to
some other lesser standard
for conviction of a crime.
I believe that a minor failing
to follow the Brown Act’s
requirements should lead to
a fine as a penalty, but no
jail time.
I believe that a serious
failing to follow the Brown
Act’s requirements should
lead to a fine as a penalty,
but no jail time.
I believe that a minor failing
to follow the Brown Act’s
requirements should lead to
a fine and jail time as
penalties.
I believe that a serious
failing to follow the Brown
Act’s requirements should
lead to a fine and jail time as
penalties.
I believe the present civil
penalties schema under the
Brown Act acts as an
effective deterrent to those
who would want to willfully
disregard the Act’s
requirements.
I believe there should be
civil fines as penalties
assessed against the
individuals who fail to
follow the Brown Act’s
regulations.
E
172
Appendix A, continued
27
28
29
30
I believe the present
criminal penalties schema
under the Brown Act acts as
an effective deterrent to
those who would want to
willfully disregard the Act’s
requirements.
I believe the District
Attorney’s enforcement of
civil penalties is vital to
ensure Brown Act
compliance by boards of
trustees and
superintendents.
I believe the District
Attorney’s enforcement of
criminal penalties is vital to
ensure Brown Act
compliance by boards of
trustees and superintendents.
I believe there should be no
criminalization for boards of
trustees and superintendents
that intentionally violate the
Brown Act.
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
A
B
C
D
E
173
APPENDIX B
INTERVIEW GUIDELINE (SEMI-STRUCTURED)
Questions to Interview Participant:
1. Please state your name, position and how long you have held that
position?
2. How often do you touch on Brown Act issues when carrying out your
duties/responsibilities during a normal work week?
3. Tell me why Brown Act regulations should be followed as ones that are
necessary as opposed to being followed as bureaucratic regulations just to
dot the “i”s and cross the “t”s?
4. What is your feeling about Brown Act issues that a board of trustees or
superintendent may want to circumvent so that they can carry out their
responsibilities without unwarranted outside interference?
5. What is your opinion about instances when a board of trustees or
superintendent deems it appropriate to skirt Brown Act regulations
because of the particular issue or circumstance at hand?
6. What is your opinion about whether the Brown Act’s enforcement
provisions, as written, have struck a balance between school boards and/or
superintendents’ right to govern and the right of the public-at-large to
accountability of that governess? Tell me more?
7. What is your opinion about whether the Brown Act’s enforcement
provisions, as implemented, have struck a balance between school boards
and/or superintendents’ right to govern and the right of the public-at-large
to accountability of that governess? Tell me more?
8. What do you think about the civil and criminal enforcement provisions for
violations of the Brown Act?
9. To your understanding, what does it take to obtain a criminal conviction
under the Brown Act?
174
Appendix B, continued
10. If you had investigating potential active non-compliance concerning the
Brown Act, what would I have seen you doing?
11. What is your belief concerning school board trustees and/or
superintendents being subjected to potential criminal prosecution for not
following the Brown Act?
12. How do you feel about district attorneys trying to enforce Brown Act’s
regulations through: (a) civil prosecution, and (b) through criminal
prosecution?
13. What do you believe would happen here in California if boards of trustees
and superintendents were individually and personally responsible to pay
fines for Brown Act violations as they do in 29 other states?
14. Do you think the enforcement provisions of the Brown Act, as written, are
effective? Tell me more?
15. Do you think the enforcement provisions of the Brown Act, as
implemented, are effective? Tell me more?
16. Do you feel that civil enforcement of the Brown Act is too expensive?
Tell me more?
17. What is your opinion about whether there is any need to revise the civil
and/or criminal sanctions to the Brown Act?
18. Tell me how you would revise the civil and/or criminal sanctions to the
Brown Act? Tell me why you would not revise the civil and/or criminal
sanctions to the Brown Act?
19. What are your beliefs concerning whether school boards and/or
superintendents would follow the requirements of the Brown Act even if
there were no sanction schema?
20. How do you believe other stakeholders in the process regard the sanction
provisions of the Brown Act?
175
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