Tuesday, June 17, 2014

Gov. Brown, the Meddler

Darn it!  I wish Sacramento would just keep their darn hands off local Districts.  In the latest affront to common sense, Gov. Moonbeam has passed a law that will require Districts to cap our reserves at 10% of revenues.  (article)

For those not familiar with the nuances of school funding, we are required by law to have a reserve of 3% of our annual revenue.  It's prudent to require that local districts have some amount of cushion that we can draw upon when times get lean.  But what genius thought it was a good idea to cap that reserve?  If we could squirrel away a larger reserve (say, 15% or 20%) and then guarantee that we wouldn't have to issue a single pink slip in a big recession, wouldn't that be a GOOD idea?  The article says some districts have reserves of 30%-50%.  I challenge lawmakers to show us one district with over 1000 students that has that kind of reserve.  LASD has 11% reserves, and we're considered very fortunate.

Unfortunately, this seems to be the Governor's way of buying political support.  At a state level, the CTA continues to press to minimize reserves because the most logical way a district spends reserves is on salary. By forcing districts to spend reserves, it helps the CTA membership, who in turn support Gov. Brown.  Nice trick, Jerry.

Now, I want to be clear.  I supported our recent pay raise for our teachers because it was the right thing to do.  They've worked very hard and have implemented a first class program that is achieving great results.  In negotiations, our particular teachers really do have a sense of cooperation with us.  But at a state level, the CTA and Jerry are just nuts.

PS:  The rationale behind all of this is that the State is going to carry reserves to make sure we don't need as much in our safety net.  That's great- except that the State has consistently raided the Prop 98 guaranteed funding we are supposed to receive.

Friday, June 6, 2014

Financial Responsibility

Recently a group of "community members" have been running ads in the local papers alleging that the LASD Board and administration isn't acting in a financially responsible manner.  Their ads have been riddled with factual inaccuracies (simple things that take 10 minutes on Google to confirm).  I could spend a lot of time correcting all of that, but I think it's a lot simpler to point to the professionals.

As we do every year, LASD issued some short term notes to the financial markets.  I won't bore readers with the mechanics, but it's something that schools across California do every year.  As part of the process, Standard and Poors rated us "SP1+", which is their highest rating for short term borrowing.  Their analysts cited LASD's strong financial fundamentals as a key aspect of the rating.

This isn't the first time we've received excellent marks from the rating agencies.  I wrote about it once before, but it's a common theme for LASD.  We're fortunate to have so many folks involved to make sure we do a good job of stewarding the community's resources.


Wednesday, April 16, 2014

Another win - no lawyers' fees!

Yesterday we received a ruling from the Superior Court that LASD does NOT have to pay BCS's legal fees from the 2009-2010 case.  I've already written a lot about the legal fees demand from BCS, and have chronicles quite a bit of this particular part of the legal drama.  (Link to all LASD Observer posts on attorney fees).

The judge spent the better part of 10 pages thoroughly dissecting every aspect of the BCS claim for fees.  It breaks down into two major findings:

1) BCS did not "win" enough of the 2009-10 case for them to claim they were entitled to fees.  The courts highlighted that on the key issues, such as their demand for the Gardner campus, the Appellate Court rebuffed the requests.

2)  Even if BCS had won enough of the case, they did not confer a "public benefit" on others.  That is, they stood to gain a great deal more than their costs in litigation, which means they really aren't eligible for legal fees.

An honest read of the ruling will show that the District's request for fees/ sanctions over and above the sanctions already issued was denied.  The courts pointed out, in effect, that this is high stakes litigation, and we're going to incur substantial costs.  I wish it didn't have to be this way, but that issue is largely under the control of a Board where I am not a member, so we'll take it as it comes.

I won't try to add a lot here, other than to thank the court for their thorough research on the issue.  Given the judicial record in this case, and the fact that BCS has (unsuccessfully) appealed many of the recent rulings, it appears that Judge Lucas was extra careful to dot every I and cross every T.  I know how she feels.  Still, it's nice to see the courts give such careful consideration to an issue and to be affirmed in the key aspects of the outcome.  I look forward to a time when the headline on this blog will indicate that LASD and BCS are both spending all of our resources in the classroom.

Once again, I'd like to thank Ray Cardozo at Reed Smith for his expert work in this case.  Ray has been extremely diligent going through a very difficult discovery process to uncover the facts that underpinned the district's successful defense in this matter.  Ray, Adam and Paul at Reed Smith, as well as John, Dino, and the rest of the team at BWS Law- thanks a million.  (OK, thanks $1.5M!)

And of course here is the ruling

Sunday, April 13, 2014

Truth in the Courts

In my other post today, I discuss the efforts of a community member to get a copy of Ken Moore's declaration in part of the recent court battles.  BCS thwarted that effort by seeking and obtaining a protective order to prohibit LASD from providing a copy of that deposition to the community member who sought it.  This post examines an important "story within the story" around that process.

In the recent battle over Ken Moore's deposition, BCS filed a request for a protective order to prevent LASD from delivering a copy of what we consider to be a public record* over to a member of the public who had requested that record.

In their argument to obtain the protective order, BCS started by suggesting that Ken Moore was concerned for his safety.  In his sworn declaration to the courts, he tells the court that he is afraid of kidnapping.  "One of the most significant ways I deal with the potentials threats has been to maintain as low visibility as I reasonably can. In that regard, I do not use Facebook, LinkedIn, Instagram, or the the like.  I do not allow my place of employment, nor the boards that I am associated with, to post any photographic or other images of me".   Yet at the time of the hearing, he was personally featured in a promotional video on the front of the BCS web site.  He's identified by name, so there can be no doubt who he is.  (You can view that video here if you'd like  Ken Moore appears around the 6:20 mark.)  He also has appeared in various other publications like the Silicon Valley Business Journal.  So this clearly wasn't true.  Yet it appears in Moore's sworn declaration to the courts.

I've done declarations, and I can understand if someone made a mistake.  This seems unlikely, though, given the examples listed above and others that I won't include here.  Ken's declaration goes on, though.

"In support of the above goal of maintaining low visibility, I have asked the local newspapers to feel free to quote me, but not to use my likeness.  In light of safety concerns and the simple fact that I am a parent volunteer, the local papers have honored my request".  This statement seems to suggest a pretty sophisticated discussion with the local media.  I'm not an expert on the press, but from what I do know, they tend to consider editorial control to be sacrosanct.

Given my surprise at this statement, I did what a good reporter would do- I investigated.  I contacted the Los Altos Town Crier, The Mountain View Voice, The Daily Post, and the San Jose Mercury News.  Each and every one of these papers denied ever having had such an arrangement in place, or even having knowledge of any such request.  In various ways most of them said the that the suggestion they would make such an agreement was preposterous.

I also asked Mr. Moore himself.  He acknowledged that he had no such agreement with the Town Crier, but refused to elaborate on any discussions with other media outlets.

I submit that these statements are not minor and they are not mistakes.  This was absolutely improper.  In the next paragraph of his declaration, Mr Moore says "I was raised in Los Altos and Los Altos Hills and have lived there for nearly 60 years.  I greatly value the ability to walk the streets, shops, and restaurants and not be recognized or harassed by charter school detractors."  So apparently we've moved from kidnapping to plain old privacy.  But it gets better...

In an ex parte hearing with Judge Lucas, the BCS lawyers confessed that they wanted to prevent copying of the deposition "[b]ecause we believe there could be misuse, embarrassment, [and] harassment [of] our parent volunteers"   Really?  That's what we're worried about?  That someone is going to poke fun of the BCS Board?

According to this declaration, Mr. Moore keeps his image off the internet and he has an agreement with the local press not to run his picture either.  In reality, his attorney confessed to the judge that the real issue was a desire to suppress someone else's free speech, but she didn't correct anything in Moore's sworn statement.

Why do I care about this?  These are just minor details, aren't they?

Folks, this situation is difficult.  We are wrestling with issues of huge importance- literally, matters of Constitutional law, and issues that will shape the future of public education in our state for possibly decades to come.  If participants to these discussions feel that it's ok to invent "facts" to place before the court, we will *never* have any peace.  The community member who sought the video of the deposition lost his request.  I believe that the court was swayed by the declaration Mr. Moore provided.  That BCS was able to submit a false declaration to protect themselves from parody- that isn't how justice is supposed to work. As long as this is how we pursue this issue in the courts, without an honest airing of the facts, I fear that this issue will never be resolved.

*California law has a presumption that public records should be disclosed, unless there are extenuating circumstances.  I will concede that the statue around disclosure of depositions does include an exception for "embarrassment".  To my understanding that is meant to protect ordinary citizens if they need to file a suit involving medical malpractice, or a victim of a sexual assault.  I don't believe it was meant to protect people who are spending taxpayer funds to sue a public school district.  In this case, we're weighing "embarrassment" with the ability of citizens to understand how their government is functioning.

The Streisand Effect at BCS

In 2003 Barbra Streisand sued a photographer to block publication of photos of her home, citing privacy concerns.  In ruling against her the courts found that she did not have an absolute right of privacy, and that the public had a right to see the images. The irony was that in filing the lawsuit, she brought far more attention to the picture than would ever have been generated had she simply kept silent.   (Wikipedia page)

Why do I bring this up?  Strangely, BCS seems unaware of the Streisand Effect.  They have recently spent considerable legal effort to prevent the public from viewing the depositions of BCS Board Chair Ken Moore and former BCS Foundation Chair David Spector.

A member of the public filed a CPRA request asking the District to provide a copy of Moore's and Spector's depositions.  We get CPRA requests all the time- it is part of being a public entity.  The laws in California properly favor disclosure of public records so that the public understands how the government is doing their business.  It's not surprising that someone would want to see these videos.  After all, BCS, (a purportedly public school) is suing LASD, a public school district, for more than $2M in legal fees.  The basis of the BCS claim is certainly a matter of public interest.  Going straight to the source material- the depositions- is actually pretty smart, since it would give the viewer a direct view into the rationale of those who filed the lawsuit in the first place.

BCS started by suggesting that Ken Moore was concerned for his safety.  This was provably false, though.  (See my other post today).  Eventually, the truth comes out, though.  In an ex parte hearing with Judge Lucas, the BCS lawyers confessed that they wanted to prevent copying of the deposition "[b]ecause we believe there could be misuse, embarrassment, [and] harassment [of] our parent volunteers"   Really?  That's what we're worried about?  That someone is going to poke fun of the BCS Board? 

I try to give deference to the courts.  They are charged with a difficult job- sorting out this kind of dispute.  In this particular instance, though- I don't understand this ruling, try though I might.  Parody (the basis of BCS's request for the protective order) is protected First Amendment speech.  The First Amendment was specifically created to protect objectionable speech. After all, speech that is not objectionable speech rarely needs to be protected.  If it were up to me, I'd place the First Amendment and transparency of government above the possible embarrassment of a couple of community members who are suing the public schools.  That isn't my call to make, so I will respect the court order so I won't be posting the video here.  (For the record, I don't have a copy of it).  But I would encourage the public to get to know who these folks are.    

I hate to say this, but to my mind, this comes with the territory.  I've been on the LASD Board for 4 1/2 years.  In that time, people have said made plenty of false accusations and posted ridiculous and sometimes hateful things on Facebook, the Town Crier comments section, and elsewhere.  I don't like it, but it's part of the gig.  As citizens, we have a constitutional right to complain about our government.  When you step forward and take a leadership position to help govern a public school district, particularly as president or chairman of the Board signing  letters to the community and declarations to the court, well, some folks won't like what is being said.  But I didn't run to the courts and seek to hide from the public - all while spending the taxpayers' money.