Gauthier
Attorney at Law
E-mail: tgauthier@lozanosmith.com
May 14,2015
Via Regular Mail
Anton Jungherr
121 Ash Court
Hercules, CA 94547
Re:
"
Our office represents the West Contra Costa Unified School District ("District"): .The District
received your May 6, 2015 letter and asked-that we respond on its behalf.'
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in your'rviay 6 letter, 'you allege a violation ofthe Bro~'A~t based on '~ev~ralspectfic acisof the
District's Board of Education (,'Board") and demand a "cure 'and correct" reinedy fa/these ' . ,
alleged violations. For sake of clarity, we address the three points youraised in order and'
provide the District's response accordingly.
First, you allege the Board's "Special Meeting Agenda did not properly notice the consideration
of an independent forensic investigation of the bond program" and that such "consideration is not
a proper close[d] session item." However.jn compliance with Government Code section 54950
et seg. (the "Brown Act."), the District noticed and considered a personnel matter in closed
session. The April 29, 2015 agenda listed a closed session item as follows:
1.
(See also Exhibit A to your May 6 Letter.) Your letter cites to Exhibit D, a Contra Costa Times
article that references allegations or complaints against two District employees. The District
may meet in closed session to discuss certain enumerated topics, including consideration of
personnel matters. (Gov. Code 54957, subd.(b).) Otherwise,the Brown Actrequires "all
meetings of the legislative body of a local agency shall be openand public, 'and all persons shall ,
be permitted to attend any meeting of the legislative body of a 'local agency. : ." (Gov. Code
54953, subd. (a).) The District is not authorized to discuss what happens in closed session; as
you know those matters are confidential. (Gov. Code 54963\ Ultimately, should the Board
discuss or act upon matters such as the bond program or construction programs in general, or
retain a third party or other entity to investigate, please be assured that the District understands
Limited Liability Partnership
One Capitol Mall, Suite 640 Sacramento,
Anton Jungherr
May 14,2015
Page 2
which topics are appropriately considered in open session and follows those parameters. A
general statement of the Board's intent to act in the future is not a Brown Act violation.
Second, you allege "the April 29, 2015 minutes [sic] did not accurately record the action taken or
the vote on this matter," while "[t]he April 29, 2015 report of closed session action was
accurately recorded by Contra Costa Times ... " with reference to Exhibits Band C. In Exhibit
B, you appear to highlight the following text:
Report/Ratification of Closed Session
President Groves reported that the Board of Education will establish an independent
investigation and have findings reported back to the Board upon completion.
For comparison, you highlight the following text from Exhibit C, the Contra Costa Times article:
"As a board, we are committed to pursuing an independent forensic examination of the
issues raised in the complaint and we have set forth a process to do so," Board President
Todd Groves said Wednesday, after a closed session meeting to discuss an undisclosed
employee complaint. "And the public will be hearing much more about it moving
forward."
It appears you allege as a Brown Act violation the absence of the word "forensic" in the
District's April 29, 2015 minutes. The Brown Act does not address the accuracy of minutes or
even mention minutes, so this issue cannot be a Brown Act concern. Regardless, even if we
were to accept the allegation on its face that there was a concern, the party complaining of the
action must show prejudice. (Cohen v. City of Thousand Oaks (1994) 30 Cal.App.4th 547.)
There is no showing of prejudice due to the absence or presence of the term "forensic." The
District disputes your allegation that the description of the action taken on April 29, 2015
violated the Brown Act.
Third, you allege that "[a]t the May 6, 2015 Board meeting action was taken to amend the April
29,2015 minutes to add additional information in regards to this independent forensic
examination that was not reported at the April 29, 2015 closed session." But the action taken at
the May 6, 2015 meeting you cite took place in a public meeting and was properly noticed as
follows:
B. OPENING PROCEDURES
B.l Pledge of Allegiance
B.2 Welcome and Meeting Procedures
B.3 Roll Call
B.4 Presentation of Student Board Representative from Richmond High School
B.5 Report/Ratification of Closed Session *
B.6 Agenda Review and Adoption (Public Comment)
B.7 Minutes: April 16, 2015; April 22, 2015; April 29, 2015
B.8 Request to Address the Board - Dr. Fatima Alleyne
B. 9 Request to Address the Board - Ari Alleyne
B.10 WCCUSD Public Comment
Anton Jungherr
May 14,2015
Page 3
(Emphasis added.) To the extent this allegation speaks to your belief that the Brown Act
violation relates to the failure to include the term "forensic," we direct you to the District's
response above. Moreover, the Board's subsequent action to include the term "forensic"
provides even more detail than required under the Brown Act.
In conclusion, the District disagrees with the allegations of violations of the Brown Act raised in
your May 6 letter. The Board does not intend at this time to take any action, as there is nothing
to cure and correct.
Sincerely,
LOZANO SMITH
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Thomas Gauthier
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B.7
Minutes.
Public Comment:
Tom Panas, Ben Steinberg
Board Comment:
President Groves stated the comments from the public were correct and he did request an independent forensic
examination.
MOTION: Ms. Kronenberg moved to amend the Minutes of April 29, 2015 for Item C.l. replacing the words
"independent investigation" with "independent forensic examination". Mr. Enos seconded. Ms. Block, Ms.
Cuevas, Mr. Enos, Ms. Kronenberg, Student Representative Alejandra Barragan Hidalgo (advisory vote only),
and President Groves voted yes, with no abstentions and no absences. Motion carried 5-0-0-0.
MOTION: Ms. Block moved to further amend the Minutes of April 29, 2015 for Item Cd , to include steps the
Board had previously agreed to taking toward the independent investigation process which included hiring of
an independent attorney not baving worked with the district in the past and choosing a forensic auditor. Ms.
Cuevas seconded. Ms. Block, Ms. Cuevas, Mr. Enos, Ms. Kronenberg, Student Representative Alejandra
Barragan Hidalgo (advisory vote only), and President Groves voted yes, with no abstentions and no absences.
Motion carried 5-0-0-0.
MOTION: Mr. Block moved approval ofthe Minutes of April 16,2015 and April 22, 2015 and amended
Minutes of April 29, 2015. Ms. Cuevas seconded. Ms. Block, Ms. Cuevas, Mr. Enos, Ms. Kronenberg, Student
Representative Alejandra Barragan Hidalgo (advisory vote only), and President Groves voted yes, with no
abstentions and no absences. Motion carried 5-0-0-0.
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D.
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Recogni
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Public C
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Board Comment:
President Groves congratulated the teams.
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to recognize student
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igan Hidalgo
-'lotion carried 5-0-
nd Pinole Valley
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ANT OJ JUNGHERR
wccus~ ll1eged Violation of Brown
Act
510.697.7212 cell
jungherr3@aol.com
May 6,2015
President and Members of the
West Contra Costa Unified School District
Board of Trustees
1108 Bissell Avenue
Richmond, CA 94801
DEMAND FOR CURE OR CORRECTION; ALLEGED VIOLATION
OF BROWN ACT
This letter is to call to your attention to what I believe was a substantial
violation of a central provision of the Ralph M. Brown Act, which may
jeopardize the finality of the action, taken by the Board of Trustees of the
West Contra Costa Unified School District (WCCUSD) at a Special Meeting
on April 29, 2015.
The nature of the violations are as follows:
The April 29, 2015 Special Meeting Agenda did not properly notice
the consideration of an independent forensic examination of the bond
program. See Exhibit A. This was a violation of the Brown Act.
The consideration of an independent forensic examination is not a
proper close session item. This was a violation of the Brown Act.
The April 29, 2015 did not accurately record the action taken or the
vote on this matter. See Exhibit B. This is a violation of the Brown
Act.
The April 29, 2015 report of closed session action was accurately
recorded by Contra Costa Times reporter Theresa Harrington in her
video posted on the newspaper's website and in her April 29, 2015
article. See Exhibit C.
At the May 6, 2015 Board meeting action was taken to amend the
April 29, 2015 minutes to add additional information in regards to
this independent forensic examination that was not reported at the
end of the April 29, 2015 closed session. This was a violation of the
Brown Act.
C:\Users\Anton\Documents\OOOO CBOC 2.11.15\Brown Act Violation Closed Session April 29, 20155.6.15 - aj.docx
Page 1 of3
ANTON JUNGHERR
WCCUSD Alleged Violation of Brown Act
April 29, 2015
510.697.7212 cell
jungherr3@aol.com
C:\Users\Anton\Documents\OOOO CBOC 2.11.15\Brown Act Violation Closed Session April 29, 20155.6.15 - aj.docx
Page 2 of3
ANTON JUNGHERR
WCCUSD Alleged Violation of Brown Act
April 29, 2015
510.697.7212 cell
jungherr3@aol.com
Anton Jungherr
Exhibits
A.
B.
C.
D.
ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015
EXHIBIT A
May 6, 2015 Letter to WCCUSD Board of Education
A.
B.
OPENING PROCEDURES
A.I
A.2
ROLL CALL
CLOSED SESSION
B.I
CALL TO ORDER
B.2
See Exhibit A
(Government Code Section 54954.5)
EXHIBIT A
(Government Code Section 54954.5)
CLOSED SESSION AGENDA
April 29, 2015
1.
C.
REPORTIRATIFICATION
OF CLOSED SESSION
D.
ADJOURNMENT
E.
ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015
EXHIBITB
May 6, 2015 Letter to WCCUSD Board of Education
A.
OPENING PROCEDURES
President Groves called the meeting to order at 10:00 A.M. The Board recessed into Closed Session. President
Groves reconvened the Public Session to report action taken in Closed Session at 12: J 0 P.M.
A.i
A.2
Roll Call
Board Members Present;
Staff Present:
Liz Block, Valerie Cuevas, Randall Enos, Todd Groves, Madeline Kronenberg
B.
c.
RECONVENE
C.l
Report/Ratification
of Closed Session
A President Groves reported that the Board of Education will establish an independent investigation and have findings
} reported back to the Board upon completion.
D.
ADJOURNMENT
President Groves adjourned the meeting at 12:10 PM.
E.
BH:dh
34
----- ------.----------------------~.
--_._----------
ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015
EXHIBIT C
May 6, 2015 Letter to WCCUSD Board of Education
1% Bail
Bonds
NEWS (/BREAKING-NEWS)
---- -. ------
Whistleblower Service
investigative Audits
organizations
RICHMOND -. West Contra Costa trustees "ill seek a detailed audit of their bond construction
program in the wake of whistle-blower allegations of criminal wrongdoing and negligence by three
district officials.
",\s a board, we are committed to pursing an independent
V in the complaint
~
~nil we have set fmtll a process to do so," Board President Todd Groves said
iVcdnesday, after a closed session meeting to discuss an undisclosed employee compla!~nd
the public "ill be ht;aring much more about it moving forward."
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(http:/{myfocai.contracostatimes.col11/oakl:;,ndCAirealestaielreai-estate
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Groves said after the closed session that the district is taking whistle-blower
protection laws
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seriously and that he hoped the board would be ready to discuss its plans for a forensic audit at its
May 6 meeting. A forensic audit is a much more detailed examination of the finances of the bond
(htlp:j!mylocal.conlracostatimes.wmfhome/27193586j
program.
Pound Mslters
DUling their closed session, trustees met with two outside lawyers, but excluded Harter from most
of the meeting without publicly stating why the superintendent
sessions -- was not allowed to participate
ill
(hltp:llmylocal.contracostatimes.comfconcord-
CiVmedicallc!ipiciPound-Me!teiS-925-363(332)
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Ramsey, reached by phone late Wednesday afternoon, called the allegations "serious," aod said
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that Clay "would have to back them lip." He would not comment further and referred questions to
CAlr.ouse-and-homef.'1cuSEiholri-
his attorney.
applianc6s/Ab!e-Heal1h-and-Home-925-S86-
learning of Clay's allegations praised trustees for taking the matter seriously. The residents said
transparency
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"This independent forensic audit is a HUGE step forward to shining light on the financial
irregularities in the construction program," said resident Ben Steinberg, in an e-mail to L1Jis
furnlture/Fumiture-Clearance-Outlet-925778-9033)
newspaper.
Hercules City Councilman Dan Romero, who reminded the school board about whistle-blower
protection laws before they went into closed session, said in an e-rnail after the meeting that he
was glad to hear the board would pursue a detailed audit.
"This is a huge step to transparency
he said.
Trustee Madeline Kronenberg said after the closed session that the FBI, which initially contacted
her in relation to an SEe investigation into the bond program last fall, has not followed up with
Add your business here +
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her. Trustee Val Cuevas said that the SEe investigation is ongoing.
Theresa Harrington covers education. Contact her at 925-945-4764
or
. Follow her at
more Information To see whistle-blower documents, a letter from district residents seeking a
forensic audit and a video clip from the meeting, visit
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ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015
EXHIBITD
May 6,2015 Letter to WCCUSD Board of Education
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If you have any questions about anything contained therein, Iam sure Luis Freese,
Lisa LeBlanc, and Mark Bonnett will be wilHng to help. And of course, Iwill be
available to answer any questions members of the Board or District staff may have.
Thank you for patience. I know you are busy people and this is highly irregular.
Thanks.
Dennis Clay
(510) 307-4588
t>-I
Friday, April 24, 2015 AOL: Junzherrs