I try pretty hard to stay away from school politics. While I'm passionate about the topic, I want to respect the people who have taken up the mantle and are running the district.
Elections are another matter entirely.
I am often asked my opinion of the candidates for local elections. As I have done in the past, I'm applying my experience on the board, my history in working with many different parties, and my own judgement about what direction we want to travel in the future.
Bryan Johnson For LASD
Bryan is well qualified to be an LASD trustee. He has volunteered countless hours at Santa Rita where he is a parent. He also has attended many, many school board meetings and spoken up when he felt compelled to do so. He will hit the ground running because he has context. He understands what we're doing in our schools today, and can provide his thoughtful input to the process. I have no doubt about Bryan's ability to be a positive force for our children.
This coming board will have to deal with critical issues like how to share the bond proceeds fairly amongst our students. Bryan has the experience and the temperament to do this wisely and thoughtfully. I trust that he will weight the interests of all public school students who live in our community (and yes, that includes BCS students).
Tanya is a BCS Parent - and has no place on the LASD Board
Having negotiated the BCS peace treaty, I am not trying to cast a bunch of aspersions here. However, I fundamentally do not believe that someone who has chosen to send their kids outside of LASD can be as effective a trustee as someone who has current, up-close experience with our schools. If you don't know what's going on in our classrooms, how can you help set policy effectively?
I'm also troubled by Tanya's blatant attempts to distort the truth of her allegiance. She speaks of volunteering for LASD schools for over a decade. Let's examine that a bit. She did volunteer when her kids attended LASD schools, but as soon as she got them into BCS, she quit working for LASD schools. I don't fault her for that- most parents volunteer where their kids attend. But again, it is hard to know what LASD kids need if you're spending your time elsewhere.
Tanya did work on a district committee to discuss possible school sites, but I was part of the board that appointed her to that committee. We were crystal clear about Tanya's involvement- she was included to represent the perspective of BCS parents. While that may be appropriate on a committee, it is not appropriate for the full board.
Also I dug into the financial records for the two candidates. Bryan received numerous donations from a cross section of community members. Not surprising. (See Bryan's 460 here) Tanya has far out-raised and out-spent Bryan. (Tanya's 460) Interestingly, the vast majority of her money is from anonymous donors. Now, one might read this as innocuous. After all, a candidate is only required to disclose the names of donors who give more than $100. Tanya lists only 4 (two of whom are BCS founding families). The remaining $4556 is all in donations of less than $100. (for those who don't want to do the math, that's 46 donations of $99 and one $2 donation). Why am I suspicious of this? Because last election, I took a lot of flak from BCS when I called out the fact that almost all of Martha McClatchie's money came from BCS families. It isn't hard to imagine a campaign strategy where donors are asked to give only $99 so that there isn't a big paper trail that goes back to BCS.
Why do I get so annoyed about this? After all, I've certainly known BCS parents who are more difficult to work with than Tanya. First, and I've said this before, I value transparency in local government. Hiding one's allegiance seems like a sleazy thing to do, particularly in our very well educated community. If you believe it is time for a BCS candidate on the LASD board, then have the courage of your convictions. Run as a BCS candidate. But don't lie about your background in an attempt to hoodwink the local voters.
I also worry about what happens if things go south. After all, part of the job of the board is to defend the district in the event of litigation. Picture this scenario: If the BCS board decides they are unhappy with how the bond funds are spent, what happens if they sue LASD? Do we really want a BCS parent in closed session with LASD attorneys, mapping out legal strategy? Although Tanya's term would expire before the peace treaty is done, does anyone think this isn't an "entry point" to have a BCS supporter on the board after the treaty has expired?
As a final thought, I like to apply the "mirror test". If things were reversed, how would people react? For example, I'm a retired board member with 5 years of service to public education in a high performing local district. Yet, I would fully expect that BCS parents would be up in arms if I were to lobby to join the BCS board. After all, my kids went to LASD schools. I am not a deep expert in their program. Why would LASD parents be better served by having a BCS parent on our board? We wouldn't.
I don't bear some enormous grudge against Tanya. However, I think our kids are best served by a candidate I know will ALWAYS place the welfare of our students first in his deliberations. I will be voting for Bryan Johnson.
Showing posts with label litigation. Show all posts
Showing posts with label litigation. Show all posts
Thursday, October 20, 2016
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.
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.
Thursday, November 7, 2013
BCS - new lawsuit, other items
It often feels like our time is consumed by the BCS issue. I'm so pleased that our staff is able to focus heavily on our students, and I try to write about that work as much as I can. While BCS continues to consume a great deal of Board time, we are doing some fantastic things in the classroom. However, I do still want to keep people posted on what's going on with BCS, and it's time for an update.
Negotiations
The Long Term negotiating teams did meet last night, and also on Oct 30. Some progress has been made, but there remain some significant "sticking points". I cannot yet predict whether these discussions will bear fruit. We will continue to take video and post them to the District website for those who are interested in watching the sessions.
All of the video can be found here
FO/FUA Violations
Next week at the Board meeting, we will be holding a public hearing on how to address the BCS violations of the terms of the Final Offer, and the Facilities Use Agreement that they signed. One BCS Board member has been quoted in the MV Voice as saying that they have not violated the terms of the agreement, and BCS Board Chair Ken Moore has accused the district of "inventing its own alternate reality". We have had BCS parents speaking in open session of our board meeting, admitting to BCS actions in violation of the FO/FUA and substantial evidence from the community and staff of the numerous violations. The Courts have already ruled that the conditions we imposed were legal, so the only question remaining is what we should do about it. I will be very interested to see if BCS has any light they can shed on this, but I don't think the District are the ones not inhabiting reality.
Here is the notification we sent to them for the hearing
and the recent MV Voice Article
and the Town Crier Article
New Lawsuit
Finally, we received service today of another lawsuit from BCS. (we receive notice it was coming on Nov 1, along with the facilities request for next year). Once again they are using CEQA to challenge District actions. I find this an odd disconnect. In the negotiations, BCS Board members have told us that we have the ability to essentially ignore CEQA and do whatever we want. In these lawsuits, though, they allege that we haven't followed it properly. That's a very strange set of positions to take. This latest lawsuit from BCS challenges the placement of a portable on the Egan campus, in space not used by BCS. That building is used to conduct classes for special needs students. I don't think I could conceive of a n action from BCS that would paint them in a less flattering light. Start with a law BCS is currently violating, a law which they claim the district has the power to ignore. Use that law to attack services we provide for a group of students that not only need additional services, but are part of a legally protected group (special needs). Top that off with community allegations that BCS doesn't serve that same group of students.
I can't imagine what their highly paid PR firm must think of all of this, but I sure wouldn't want to have to explain it to the public if I were in their shoes. (cue the music to mission:Impossible)
Here is the paperwork for the lawsuit
Bullis Summons
Verified Petition for Writ of Mandate (the actual lawsuit)
Notice of Election to Prepare the Administrative Record
Notice of Related Case (asks the court to join this lawsuit with the existing CEQA lawsuit)
Civil Case Cover Sheet
Notice to the Attorney General
Proof of Service
Negotiations
The Long Term negotiating teams did meet last night, and also on Oct 30. Some progress has been made, but there remain some significant "sticking points". I cannot yet predict whether these discussions will bear fruit. We will continue to take video and post them to the District website for those who are interested in watching the sessions.
All of the video can be found here
FO/FUA Violations
Next week at the Board meeting, we will be holding a public hearing on how to address the BCS violations of the terms of the Final Offer, and the Facilities Use Agreement that they signed. One BCS Board member has been quoted in the MV Voice as saying that they have not violated the terms of the agreement, and BCS Board Chair Ken Moore has accused the district of "inventing its own alternate reality". We have had BCS parents speaking in open session of our board meeting, admitting to BCS actions in violation of the FO/FUA and substantial evidence from the community and staff of the numerous violations. The Courts have already ruled that the conditions we imposed were legal, so the only question remaining is what we should do about it. I will be very interested to see if BCS has any light they can shed on this, but I don't think the District are the ones not inhabiting reality.
Here is the notification we sent to them for the hearing
and the recent MV Voice Article
and the Town Crier Article
New Lawsuit
Finally, we received service today of another lawsuit from BCS. (we receive notice it was coming on Nov 1, along with the facilities request for next year). Once again they are using CEQA to challenge District actions. I find this an odd disconnect. In the negotiations, BCS Board members have told us that we have the ability to essentially ignore CEQA and do whatever we want. In these lawsuits, though, they allege that we haven't followed it properly. That's a very strange set of positions to take. This latest lawsuit from BCS challenges the placement of a portable on the Egan campus, in space not used by BCS. That building is used to conduct classes for special needs students. I don't think I could conceive of a n action from BCS that would paint them in a less flattering light. Start with a law BCS is currently violating, a law which they claim the district has the power to ignore. Use that law to attack services we provide for a group of students that not only need additional services, but are part of a legally protected group (special needs). Top that off with community allegations that BCS doesn't serve that same group of students.
I can't imagine what their highly paid PR firm must think of all of this, but I sure wouldn't want to have to explain it to the public if I were in their shoes. (cue the music to mission:Impossible)
Here is the paperwork for the lawsuit
Bullis Summons
Verified Petition for Writ of Mandate (the actual lawsuit)
Notice of Election to Prepare the Administrative Record
Notice of Related Case (asks the court to join this lawsuit with the existing CEQA lawsuit)
Civil Case Cover Sheet
Notice to the Attorney General
Proof of Service
Thursday, June 20, 2013
In Court Today: 2013-14 offer
Today we had a court date to discuss the first of two BCS challenges to the 2013-14 facilities offer. Today's discussion centered entirely around whether LASD was able to split BCS into two sites, or if that was a violation of the process.
BCS essentially argued that prop 39 says we have to start by placing them on a single campus, and then restructuring the remaining LASD programs around that. Judge Pierce also spent time clarifying whether the courts should evaluate all of the options independent of the elected Board of Trustees. He also explored whether we have a "ministerial duty" or if the trustees have discretion in how we allocate facilities.
LASD's argument was fairly brief. We pointed to the case law in Ridgecrest that specifically permits districts to split charter schools across campuses under certain circumstances, provided that the district makes written findings supporting that decision. LASD did this back in January 2013, as part of our extensive evaluation of options for BCS. LASD attorney Ray Cardozo drew the court's attention to the resolution, which specifically starts with the single site solution (Covington) but then explains how that would have a disproportionate impact on District students- particularly special needs students who are heavily impacted by changes.
Judge Pierce asked some good questions, and it felt like he'd done his homework. he had a good command of the various sites in the district, and what has happened before this hearing. He did ask about a possible return to mediation. Our attorney provided a brief answer. My thought is that we're willing to engage in a discussion, but it can't be starting with the same old position ("Close an LASD school") I've said in the past that we would enter into discussions if BCS drops or freezes the litigation we would be willing to meet. The biggest driver for that is some sort of tangible proof that if we agree to something with the subset, there's reason to believe it will be accepted by the broader BCS Board. I can expand on this later, but as I said, this is a position I've expressed before.
This was the first time I've seen the new attorney for BCS. I'm encouraged that he was focused on the facts and law of the case rather than some of the more colorful language that their prior counsel employed. Given the number of open lawsuits, it is far too early to declare a change in approach. However, we did manage to get this hearing scheduled within a reasonable time frame, and with a minimum of the shenanigans and delay tactics we've seen in the past. Hopefully we'll deal with the issues head on.
Judge Pierce didn't issue a tentative ruling before the hearing, so we are all awaiting his decision. He is repute to be someone who doesn't waste time, though, so hopefully we'll see something soon.
PS to A Friend: Thanks.
BCS essentially argued that prop 39 says we have to start by placing them on a single campus, and then restructuring the remaining LASD programs around that. Judge Pierce also spent time clarifying whether the courts should evaluate all of the options independent of the elected Board of Trustees. He also explored whether we have a "ministerial duty" or if the trustees have discretion in how we allocate facilities.
LASD's argument was fairly brief. We pointed to the case law in Ridgecrest that specifically permits districts to split charter schools across campuses under certain circumstances, provided that the district makes written findings supporting that decision. LASD did this back in January 2013, as part of our extensive evaluation of options for BCS. LASD attorney Ray Cardozo drew the court's attention to the resolution, which specifically starts with the single site solution (Covington) but then explains how that would have a disproportionate impact on District students- particularly special needs students who are heavily impacted by changes.
Judge Pierce asked some good questions, and it felt like he'd done his homework. he had a good command of the various sites in the district, and what has happened before this hearing. He did ask about a possible return to mediation. Our attorney provided a brief answer. My thought is that we're willing to engage in a discussion, but it can't be starting with the same old position ("Close an LASD school") I've said in the past that we would enter into discussions if BCS drops or freezes the litigation we would be willing to meet. The biggest driver for that is some sort of tangible proof that if we agree to something with the subset, there's reason to believe it will be accepted by the broader BCS Board. I can expand on this later, but as I said, this is a position I've expressed before.
This was the first time I've seen the new attorney for BCS. I'm encouraged that he was focused on the facts and law of the case rather than some of the more colorful language that their prior counsel employed. Given the number of open lawsuits, it is far too early to declare a change in approach. However, we did manage to get this hearing scheduled within a reasonable time frame, and with a minimum of the shenanigans and delay tactics we've seen in the past. Hopefully we'll deal with the issues head on.
Judge Pierce didn't issue a tentative ruling before the hearing, so we are all awaiting his decision. He is repute to be someone who doesn't waste time, though, so hopefully we'll see something soon.
PS to A Friend: Thanks.
Tuesday, June 11, 2013
Raynor Site
Tonight I attended the Sunnyvale City Council meeting where they discussed and acted on the sale of the Raynor site. Readers may recall that LASD put in a bid on this site as a possible home for the Bullis Charter School. Unfortunately, the council has provided direction to Sunnyvale city staff to begin negotiations with the Stratford School.
Readers may also recall that the District has an open request for Declaratory Relief. We've asked the courts to determine that we are legally permitted to locate BCS outside of the District boundaries. We felt that BCS would eventually sue LASD over this question, so it makes sense to ask the courts for clarity. I am disappointed to say that BCS did show up and speak in opposition to the District's bid. According to her own statement, this was done at the direction of the BCS Board. I will leave it to individuals to interpret her statements. I've attached the recording here.
It would be reasonable to inquire whether this means the Declaratory Relief is no longer required. We've actually asked the Court the broader question- whether it is permissible to locate BCS anywhere outside the District boundaries. The Raynor site was certainly one example, but it is obviously not the only location outside of our boundaries. Thus, it makes sense to have the courts clarify this issue now. Hence, I don't anticipate any changes to the request.
I'm obviously disappointed that we didn't get the nod tonight, but I certainly wish the Stratford School and Sunnyvale well in their negotiations. Meanwhile, we'll press on considering other options.
Readers may also recall that the District has an open request for Declaratory Relief. We've asked the courts to determine that we are legally permitted to locate BCS outside of the District boundaries. We felt that BCS would eventually sue LASD over this question, so it makes sense to ask the courts for clarity. I am disappointed to say that BCS did show up and speak in opposition to the District's bid. According to her own statement, this was done at the direction of the BCS Board. I will leave it to individuals to interpret her statements. I've attached the recording here.
It would be reasonable to inquire whether this means the Declaratory Relief is no longer required. We've actually asked the Court the broader question- whether it is permissible to locate BCS anywhere outside the District boundaries. The Raynor site was certainly one example, but it is obviously not the only location outside of our boundaries. Thus, it makes sense to have the courts clarify this issue now. Hence, I don't anticipate any changes to the request.
I'm obviously disappointed that we didn't get the nod tonight, but I certainly wish the Stratford School and Sunnyvale well in their negotiations. Meanwhile, we'll press on considering other options.
Tuesday, June 4, 2013
LASD Brief - 2013-14 Suit
2013-14 Facilities Lawsuit
Yes, I understand the frustration- we're not even done with 2012-13, and we're already talking about the 2013-14 lawsuit. Not much I can do about that...
LASD has filed our reply brief in the 2013-14 facilities dispute. After LASD delivered our Final Offer for 2013-14, BCS accepted the offer and promptly turned around and filed a suit to challenge the offer. They highlighted two lines of attack-
1) They've challenged the District's ability to split the BCS program across Egan and Blach
2) They've also challenged the CEQA process under which we have allocated space to their program
After some legal wrangling, we've agreed that the case will be heard on a somewhat expedited calendar. The District remains very confident of the offer we've delivered, and the sooner the courts rule on this the better. Part of the process to expedite is that BCS will argue their key area of concern (the split across two sites) now, and will hold back the CEQA argument for later.
As BCS has been compelled by the courts to provide documents in the litigation, they've asserted that much of it is "confidential" and cannot be shared with the public. I'm not clear on the legal reasoning of positioning one's self as a public school but maintaining that much of your documentation is private. However, rather than add yet another that legal battle to the docket, we've submitted the documents under seal. If a member of the public comes forward to challenge the confidentiality of those documents, the court will rule on whether the docs should be released or not.
This hearing will take place on June 20 in Superior Court. The public is always welcome to attend these hearings.
LASD Opposition to BCS Motion for Judgement
Cardozo Declaration (part 1 of 3)
Cardozo Declaration (part 2 of 3)
Sorry, Part 3 is under seal for the moment
Yes, I understand the frustration- we're not even done with 2012-13, and we're already talking about the 2013-14 lawsuit. Not much I can do about that...
LASD has filed our reply brief in the 2013-14 facilities dispute. After LASD delivered our Final Offer for 2013-14, BCS accepted the offer and promptly turned around and filed a suit to challenge the offer. They highlighted two lines of attack-
1) They've challenged the District's ability to split the BCS program across Egan and Blach
2) They've also challenged the CEQA process under which we have allocated space to their program
After some legal wrangling, we've agreed that the case will be heard on a somewhat expedited calendar. The District remains very confident of the offer we've delivered, and the sooner the courts rule on this the better. Part of the process to expedite is that BCS will argue their key area of concern (the split across two sites) now, and will hold back the CEQA argument for later.
As BCS has been compelled by the courts to provide documents in the litigation, they've asserted that much of it is "confidential" and cannot be shared with the public. I'm not clear on the legal reasoning of positioning one's self as a public school but maintaining that much of your documentation is private. However, rather than add yet another that legal battle to the docket, we've submitted the documents under seal. If a member of the public comes forward to challenge the confidentiality of those documents, the court will rule on whether the docs should be released or not.
This hearing will take place on June 20 in Superior Court. The public is always welcome to attend these hearings.
LASD Opposition to BCS Motion for Judgement
Cardozo Declaration (part 1 of 3)
Cardozo Declaration (part 2 of 3)
Sorry, Part 3 is under seal for the moment
Sunday, May 19, 2013
So much for compromise (BCS 2013-14 Litigtion)
2013-14 BCS Complaint, Part I
To borrow a phrase, "so much for compromise".
The BCS litigation for the 2013-14 school year makes a complete mockery of their $300,000 PR campaign this spring. They widely touted their willingness to "compromise", and not close an LASD school. This week, their new attorneys filed a motion for judgement for the first of two causes of action. The crux of the filing is to claim that the LASD offer is not compliant with Prop 39 because it offers them space on two locations. They're demanding a contiguous site. Since we don't have an empty site, that can only mean one thing- closing a high-performing neighborhood school to hand it over to BCS.
The current filing does not ask the courts to rule on part II, their CEQA complaint. They've reserved that for later.
It's worth noting that the BCS action on this will be led by John Lemmo of Procopio, Cory, Hargreaves, & Savitch, LLP. How deeply involved Morrison & Forrester will be (and the impact of this change) remains to be seen.
As is my custom, I'm not going to provide specific commentary on the legal aspects of the BCS argument. The District will be filing a response in due course, and we'll be in front of the judge quickly. I am trying to get some clarity on exact dates- I believe this might be in a courtroom in June. I'll definitely keep folks posted.
Here are the documents.
Memorandum and Points (the actual argument)
Motion for Judgement
Declaration of John Lemmo
Request for Judicial Notice
Proof of Service
Updated at 1:12pm - Having gotten through some additional emails, it appears that we will be in court on June 20 for this matter. I'm looking forward to the chance to have the courts hear this issue.
To borrow a phrase, "so much for compromise".
The BCS litigation for the 2013-14 school year makes a complete mockery of their $300,000 PR campaign this spring. They widely touted their willingness to "compromise", and not close an LASD school. This week, their new attorneys filed a motion for judgement for the first of two causes of action. The crux of the filing is to claim that the LASD offer is not compliant with Prop 39 because it offers them space on two locations. They're demanding a contiguous site. Since we don't have an empty site, that can only mean one thing- closing a high-performing neighborhood school to hand it over to BCS.
The current filing does not ask the courts to rule on part II, their CEQA complaint. They've reserved that for later.
It's worth noting that the BCS action on this will be led by John Lemmo of Procopio, Cory, Hargreaves, & Savitch, LLP. How deeply involved Morrison & Forrester will be (and the impact of this change) remains to be seen.
As is my custom, I'm not going to provide specific commentary on the legal aspects of the BCS argument. The District will be filing a response in due course, and we'll be in front of the judge quickly. I am trying to get some clarity on exact dates- I believe this might be in a courtroom in June. I'll definitely keep folks posted.
Here are the documents.
Memorandum and Points (the actual argument)
Motion for Judgement
Declaration of John Lemmo
Request for Judicial Notice
Proof of Service
Updated at 1:12pm - Having gotten through some additional emails, it appears that we will be in court on June 20 for this matter. I'm looking forward to the chance to have the courts hear this issue.
Sunday, May 5, 2013
Deja vu. And "Hey, haven't I seen this before?"
BCS has filed two new legal actions this week.
On Monday, they filed a lawsuit that looks nearly identical to the District's request for Declaratory Relief. This relates to the District's interest in acquiring the Raynor facility as a long-term location for BCS. I'm not sure what the benefit is in creating a duplicate legal action. Someone with a legal background is welcome to explain that to me. It feels wasteful. However, I remain interested to hear from the courts on how they view this issue, so we'll just wait for the hearing date.
BCS Lawsuit #1
Supporting Docs
Cover Sheet
They also filed a second action, in which they allege that the two-site solution is unlawful. I'm puzzled by this, since they spent over $300,000 this spring publicizing their willingness to "Compromise" and operate at Blach and Egan. I'm also dumbfounded that they suggest this solution isn't reasonably equivalent, since this solution is virtually identical to how LASD operates our own schools, right down to sharing time with BCS in the specialized teaching space at Blach. In addition to challenging the 2-site solution, it also challenges the CEQA study the district conducted this past year. This spring, they said they'd "heard the community", and they weren't asking to close an LASD school. That seems to be out the window now. When BCS challenges the site split and the CEQA, it leaves little doubt what they are requesting.
BCS Lawsuit #2
I am again deeply disappointed in the actions of the BCS Board. They fail to demonstrate a serious willingness to work together. Some folks have asked if, now that the final offer is complete, will we have time for joint meetings with the BCS board. I'd point those people to our agenda for this Monday's closed session, which lists 5 open lawsuits to discuss. BCS seems to be doing all of their talking through their lawyers, and it doesn't look like that is going to change any time soon.
On Monday, they filed a lawsuit that looks nearly identical to the District's request for Declaratory Relief. This relates to the District's interest in acquiring the Raynor facility as a long-term location for BCS. I'm not sure what the benefit is in creating a duplicate legal action. Someone with a legal background is welcome to explain that to me. It feels wasteful. However, I remain interested to hear from the courts on how they view this issue, so we'll just wait for the hearing date.
BCS Lawsuit #1
Supporting Docs
Cover Sheet
They also filed a second action, in which they allege that the two-site solution is unlawful. I'm puzzled by this, since they spent over $300,000 this spring publicizing their willingness to "Compromise" and operate at Blach and Egan. I'm also dumbfounded that they suggest this solution isn't reasonably equivalent, since this solution is virtually identical to how LASD operates our own schools, right down to sharing time with BCS in the specialized teaching space at Blach. In addition to challenging the 2-site solution, it also challenges the CEQA study the district conducted this past year. This spring, they said they'd "heard the community", and they weren't asking to close an LASD school. That seems to be out the window now. When BCS challenges the site split and the CEQA, it leaves little doubt what they are requesting.
BCS Lawsuit #2
I am again deeply disappointed in the actions of the BCS Board. They fail to demonstrate a serious willingness to work together. Some folks have asked if, now that the final offer is complete, will we have time for joint meetings with the BCS board. I'd point those people to our agenda for this Monday's closed session, which lists 5 open lawsuits to discuss. BCS seems to be doing all of their talking through their lawyers, and it doesn't look like that is going to change any time soon.
Thursday, April 25, 2013
Considering Raynor Site
The Town Crier ran an article today discussing the recent District action to consider the Raynor site in Sunnyvale as a possible location for BCS. (link to article) Overall, the article did a pretty good job of explaining the situation. In a nutshell, Sunnyvale has a parcel available for sale that was a school site back in the 1970's. LASD is submitting a bid to acquire that site to use as a location for BCS.
Of course, any sentence that includes "LASD" and "BCS" is bound to generate controversy, and this one is no exception. Before LASD even passed the resolution to do this, the lead BCS attorney threatened to get an injunction to block the action. BCS has stated that they do not believe it would be legal for LASD to place BCS outside of the District boundaries.
I'd love to be able to say that all laws surrounding charter schools are crystal clear, and that there is no room for doubt or interpretation. However, this area of the law is relatively new, and as such, the existing laws and regulation require some interpretation. BCS sees the issue as very "black and white". However, the District has a different view. Indeed, even the SCCBOE acknowledges that there are circumstances under which a charter school can be placed outside of the District boundaries. We received a letter from the county recently detailing their views, and we sent them back a letter in reply. Both of these letters were mentioned in the comments section of the LATC article. I'm attaching both the SCCBOE letter and the LASD reply here to dispel any debate about the content of those letters. (I imagine many will still apply their own interpretation, but there's little I'm going to be able to do about that.)
SCCBOE Letter to LASD
LASD response to SCCBOE
Clearly there are different interpretations of the law here.
Failing getting their thoughts informally, the court system actually provides a mechanism to seek clarification of what the law permits. That mechanism, called Declaratory Relief, is a simple way for LASD to seek clarification from the courts about the legal issues involved in placing BCS outside the District boundaries. This process is normally fairly quick (~90 days) and LASD is very interested to hear from the courts on this topic. We believe that BCS should also share that same interest, so we've asked them to agree to a speedy calendar for this motion. We'll have to wait and see if BCS really believes in their viewpoint, or if they'd prefer to drag out the process. Either way, this is a significant question on which we need to hear from the courts so that we can all be working from the same interpretation of the law.
Here's a copy of the request for Declaratory Relief
In closing, I'd observe that it didn't take long after the Town Crier article was posted before folks started weighing in with their views of the legality of this, and questioning the wisdom of the LASD Board in pursuing this option. I can't speak for the rest of the Board, but I will share my own thoughts.
This controversy has dragged on for 8 years. Over the past year, BCS has filed complaint after complaint with the court, and has exercised every conceivable legal maneuver to either delay the court's rulings or appeal decisions they've lost (multiple times). Despite their public statements of "compromise" and collaboration, BCS has made it clear through the pace and tenor of the litigation that they won't rest until LASD has closed a site and handed the keys to BCS. Any statements to the contrary fly in the face of a lengthy court record.
Given this backdrop, LASD needs to move as expeditiously as possible to secure a site for BCS so that we can prevent the disruption of the education of 4500 students who attend District schools. Under these circumstances, we would be foolish - and I believe also derelict in our responsibilities - if we didn't consider every possible option for a site for BCS. The Raynor site happens to be the first available site, so we are moving on that site. If we had a different relationship with BCS- one based on cooperation instead of litigation- I could envision working closely together to evaluate sites and select one that is workable for the district and that is also appealing to BCS. Under the current circumstances, though, we would be remiss if we didn't pursue every available option. BCS can change this equation by dropping the litigation and working with LASD. If they want to continue to pursue litigation, though, that's the clearest signal they can give that LASD has to find them a site- any site- as fast as we possibly can.
Of course, any sentence that includes "LASD" and "BCS" is bound to generate controversy, and this one is no exception. Before LASD even passed the resolution to do this, the lead BCS attorney threatened to get an injunction to block the action. BCS has stated that they do not believe it would be legal for LASD to place BCS outside of the District boundaries.
I'd love to be able to say that all laws surrounding charter schools are crystal clear, and that there is no room for doubt or interpretation. However, this area of the law is relatively new, and as such, the existing laws and regulation require some interpretation. BCS sees the issue as very "black and white". However, the District has a different view. Indeed, even the SCCBOE acknowledges that there are circumstances under which a charter school can be placed outside of the District boundaries. We received a letter from the county recently detailing their views, and we sent them back a letter in reply. Both of these letters were mentioned in the comments section of the LATC article. I'm attaching both the SCCBOE letter and the LASD reply here to dispel any debate about the content of those letters. (I imagine many will still apply their own interpretation, but there's little I'm going to be able to do about that.)
SCCBOE Letter to LASD
LASD response to SCCBOE
Clearly there are different interpretations of the law here.
- BCS contends that LASD cannot place them outside LASD borders
- SCCBOE acknowledges that there are some instances in which LASD can place BCS outside LASD borders
- LASD believes that those circumstances and other reasons make it legal for LASD to place BCS outside the LASD borders
Failing getting their thoughts informally, the court system actually provides a mechanism to seek clarification of what the law permits. That mechanism, called Declaratory Relief, is a simple way for LASD to seek clarification from the courts about the legal issues involved in placing BCS outside the District boundaries. This process is normally fairly quick (~90 days) and LASD is very interested to hear from the courts on this topic. We believe that BCS should also share that same interest, so we've asked them to agree to a speedy calendar for this motion. We'll have to wait and see if BCS really believes in their viewpoint, or if they'd prefer to drag out the process. Either way, this is a significant question on which we need to hear from the courts so that we can all be working from the same interpretation of the law.
Here's a copy of the request for Declaratory Relief
In closing, I'd observe that it didn't take long after the Town Crier article was posted before folks started weighing in with their views of the legality of this, and questioning the wisdom of the LASD Board in pursuing this option. I can't speak for the rest of the Board, but I will share my own thoughts.
This controversy has dragged on for 8 years. Over the past year, BCS has filed complaint after complaint with the court, and has exercised every conceivable legal maneuver to either delay the court's rulings or appeal decisions they've lost (multiple times). Despite their public statements of "compromise" and collaboration, BCS has made it clear through the pace and tenor of the litigation that they won't rest until LASD has closed a site and handed the keys to BCS. Any statements to the contrary fly in the face of a lengthy court record.
Given this backdrop, LASD needs to move as expeditiously as possible to secure a site for BCS so that we can prevent the disruption of the education of 4500 students who attend District schools. Under these circumstances, we would be foolish - and I believe also derelict in our responsibilities - if we didn't consider every possible option for a site for BCS. The Raynor site happens to be the first available site, so we are moving on that site. If we had a different relationship with BCS- one based on cooperation instead of litigation- I could envision working closely together to evaluate sites and select one that is workable for the district and that is also appealing to BCS. Under the current circumstances, though, we would be remiss if we didn't pursue every available option. BCS can change this equation by dropping the litigation and working with LASD. If they want to continue to pursue litigation, though, that's the clearest signal they can give that LASD has to find them a site- any site- as fast as we possibly can.
Thursday, April 11, 2013
LASD Responds to BCS Appeal of anti-SLAPP Ruling
In early March, BCS asked the Superior Court to dismiss the district's cross complaint using the anti-SLAPP statue. Judge Overton rightly ruled that the cross-complaint should not be dismissed, on the grounds that it raises issues of public interest, and therefore is not subject to the anti-SLAPP statue. (Judge Overton's ruling can be found here).
Right before spring break, we received notice that BCS filed an appeal of Judge Overton's ruling. We notified them that this is not permissible under the law (See my blog post to discuss this here, including our letter to BCS). Sadly, BCS has decided not to withdraw their appeal. The District has therefore been forced to file a response to this illegal appeal by BCS.
In my previous blog post, I mentioned that this was an opportunity for BCS to demonstrate that they really are interested in dialogue, and that they aren't going to file needless litigation. Indeed, the law specifically bars the action they've just filed. Many times as an LASD Trustee, I've had BCS parents urge me to "follow the law" when allocating facilities. I would ask those same folks to please reach out to the BCS board and also urge them to "follow the law". The statues are unambiguous on this point. Judge Overton ruled for LASD, and that ruling is not appealable. Yet here we are, wasting time and money on something that is completely within the control of the BCS Board.
The District's response can be found here:
LASD Motion to Dismiss Appeal of Anti-SLAPP Suit 2013-04-11
(I don't have the exhibits yet, but will add them when I receive them)
Updated 23 April 2013 to add the exhibits.
Exhibits A thru D part I
Exhibits D part II - thru Exhibit I
Exhibit J thru AA
Right before spring break, we received notice that BCS filed an appeal of Judge Overton's ruling. We notified them that this is not permissible under the law (See my blog post to discuss this here, including our letter to BCS). Sadly, BCS has decided not to withdraw their appeal. The District has therefore been forced to file a response to this illegal appeal by BCS.
In my previous blog post, I mentioned that this was an opportunity for BCS to demonstrate that they really are interested in dialogue, and that they aren't going to file needless litigation. Indeed, the law specifically bars the action they've just filed. Many times as an LASD Trustee, I've had BCS parents urge me to "follow the law" when allocating facilities. I would ask those same folks to please reach out to the BCS board and also urge them to "follow the law". The statues are unambiguous on this point. Judge Overton ruled for LASD, and that ruling is not appealable. Yet here we are, wasting time and money on something that is completely within the control of the BCS Board.
The District's response can be found here:
LASD Motion to Dismiss Appeal of Anti-SLAPP Suit 2013-04-11
Updated 23 April 2013 to add the exhibits.
Exhibits A thru D part I
Exhibits D part II - thru Exhibit I
Exhibit J thru AA
Tuesday, March 26, 2013
Anti-SLAPP Appeal by BCS
2012-13 Facilities Litigation: anti-SLAPP Motion
Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling. You'll recall that BCS filed the anti-SLAPP motion back in early December 2012. (my blog post describing the motion, and all of the SLAPP-related posts). There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance. At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.
On Thursday, March 21st, the District received a formal notification of appeal from BCS. This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received. In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal. If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.
There are those who oppose the District's cross-complaint, and I've heard a number of their concerns. However, the courts have ruled three times now that LASD should be permitted to move forward with the action.
I'd like to point out that LASD is not required to give this sort of notice to BCS. We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric. In the bigger debate, there are significant legal issues that we see differently:
The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling. You'll recall that BCS filed the anti-SLAPP motion back in early December 2012. (my blog post describing the motion, and all of the SLAPP-related posts). There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance. At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.
On Thursday, March 21st, the District received a formal notification of appeal from BCS. This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received. In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal. If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.
There are those who oppose the District's cross-complaint, and I've heard a number of their concerns. However, the courts have ruled three times now that LASD should be permitted to move forward with the action.
I'd like to point out that LASD is not required to give this sort of notice to BCS. We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric. In the bigger debate, there are significant legal issues that we see differently:
- the depth and breath of the discretion afforded to elected officials as they balance the needs of multiple constituencies
- the rights of the public to understand financing behind lawsuits which claim a public benefit
- the responsibility of a public entity to take action based the concerns of citizens who come forward with complaints
The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
Thursday, March 21, 2013
Favorable Ruling on BCS Motion
2012-13 Facilities Complaint; Cross Complaint
I love the power of social media. This has already been posted on Facebook, but for those who may not have seen it, we received the ruling on BCS' MJOP (Motion for Judgement on the Pleadings). This motion, heard by Judge Carol Overton on March 5th, sought to dismiss the LASD cross complaint. This is the third such effort BCS has made. Like the other two requests (including the anti-SLAPP motion), this was denied.
BCS argued that the District had an obligation to go to the SCCBOE to address our concerns before we filed the Cross Complaint. The District argued that, since we weren't seeking for the court to change the behavior-- that we are only seeking clarification of whether this imapcts our facilities offers.
The courts found for LASD- that we don't have to go to the SCCBOE first. The ruling says, in part:
"LASD seeks guidance as to its own duties under the law with regard to its obligation to share its facilities fairly. Such a request calls on the court to interpret the law as it relates to LASD, not to determine whether Bullis has violated its charter." That's pretty much it in a nutshell.
The District did seek sanctions, which the court did not grant. However, the important take-away here is that the cross-complaint is moving forward. The courts are willing to listen to the community's concerns about BCS admissions practices, and whether they serve all students equally. Based on that, we'll understand what the impact is to the LASD facilities obligations.
Here's the full text of the ruling:
Order RE: Motion for Judgement on the Pleadings
I love the power of social media. This has already been posted on Facebook, but for those who may not have seen it, we received the ruling on BCS' MJOP (Motion for Judgement on the Pleadings). This motion, heard by Judge Carol Overton on March 5th, sought to dismiss the LASD cross complaint. This is the third such effort BCS has made. Like the other two requests (including the anti-SLAPP motion), this was denied.
BCS argued that the District had an obligation to go to the SCCBOE to address our concerns before we filed the Cross Complaint. The District argued that, since we weren't seeking for the court to change the behavior-- that we are only seeking clarification of whether this imapcts our facilities offers.
The courts found for LASD- that we don't have to go to the SCCBOE first. The ruling says, in part:
"LASD seeks guidance as to its own duties under the law with regard to its obligation to share its facilities fairly. Such a request calls on the court to interpret the law as it relates to LASD, not to determine whether Bullis has violated its charter." That's pretty much it in a nutshell.
The District did seek sanctions, which the court did not grant. However, the important take-away here is that the cross-complaint is moving forward. The courts are willing to listen to the community's concerns about BCS admissions practices, and whether they serve all students equally. Based on that, we'll understand what the impact is to the LASD facilities obligations.
Here's the full text of the ruling:
Order RE: Motion for Judgement on the Pleadings
Sunday, March 3, 2013
Back in Court This Week
2012-13 Facilities Complaint and Cross Complaint
This Tuesday morning at 9am we will be back in court again. BCS has brought a third motion in an attempt to quash a hearing on the District's Cross-Complaint. (The first two were the BCS anti-SLAPP motion, and the BCS demurrer. Judge Lucas ruled for LASD on both motions.)
In this motion, BCS has expanded their argument and is telling the court that LASD need to have addressed raised our concerns about their admissions practices and handling of students through the SCCBOE. I would make the observation that LASD, and the parent community, have repeatedly raised these concerns to the SCCBOE, who have taken no action. In many cases, the responses we have received from the SCCBOE members have been downright hostile. I would also note that we are not asking the court to take any specific action regarding the practices. We are simply asking the court whether these practices have any impact on our facilities obligation.
Revisiting the same request (dismissal of the Cross-Complaint) is highly unusual, which LASD has raised in our response. LASD has asked the courts to sanction BCS for bringing the same motion several times, as this is not permitted under the law. It is another example of the "litigate at all costs" approach to dealing with LASD.
This will be our first hearing in front of a Judge Carol Overton. Judge Lucas has rotated to a new assignment, and Judge Overton is now hearing this matter.
This Tuesday morning at 9am we will be back in court again. BCS has brought a third motion in an attempt to quash a hearing on the District's Cross-Complaint. (The first two were the BCS anti-SLAPP motion, and the BCS demurrer. Judge Lucas ruled for LASD on both motions.)
In this motion, BCS has expanded their argument and is telling the court that LASD need to have addressed raised our concerns about their admissions practices and handling of students through the SCCBOE. I would make the observation that LASD, and the parent community, have repeatedly raised these concerns to the SCCBOE, who have taken no action. In many cases, the responses we have received from the SCCBOE members have been downright hostile. I would also note that we are not asking the court to take any specific action regarding the practices. We are simply asking the court whether these practices have any impact on our facilities obligation.
Revisiting the same request (dismissal of the Cross-Complaint) is highly unusual, which LASD has raised in our response. LASD has asked the courts to sanction BCS for bringing the same motion several times, as this is not permitted under the law. It is another example of the "litigate at all costs" approach to dealing with LASD.
This will be our first hearing in front of a Judge Carol Overton. Judge Lucas has rotated to a new assignment, and Judge Overton is now hearing this matter.
Wednesday, February 27, 2013
Joan J Strong
I've grown accustomed to strange requests in the BCS litigation. Recently, though, BCS served the District with Discovery on the attorney fees issue. One of the questions struck me as highly unusual: BCS is demanding of LASD to reveal the identity of Joan J Strong.
More accurately, they've asked us to "IDENTIFY the person [we] believe is posting on the Internet under the name "JJ Strong" or "Joan J. Strong" "
Honestly, people: I don't know who Joan J Strong is. My fellow trustees have confirmed that they don't know who she is either. Nor do the superintendent or various other personnel involved in this case. We provided this information to BCS in our Response to Interrogatories, delivered to BCS on 20 Feb 2013. Nevertheless, BCS counsel is still harassing our lawyers, demanding further information about how we investigated this question.
Seriously?
First off, there's a First Amendment issue here. JJS is entitled to say whatever he or she wants to say. I have no control over what s/he posts, and frankly it's not my business. Second, in their failed anti-SLAPP motion last year, they accused LASD of using litigation as a tool to chill public debate. I can't imagine the purpose of this inquiry, other than to seek to harass the real person being the JJS persona. And finally, is this really what we have to burn taxpayer funds asking and answering? Is there no more important issue to discuss?
Regardless, we don't know who Joan J Strong is. (But if s/he is reading this, s/he can consider herself/himself to have achieved a new level of notoriety.)
Respondents Responses to BCS Special Interrogatories
More accurately, they've asked us to "IDENTIFY the person [we] believe is posting on the Internet under the name "JJ Strong" or "Joan J. Strong" "
Honestly, people: I don't know who Joan J Strong is. My fellow trustees have confirmed that they don't know who she is either. Nor do the superintendent or various other personnel involved in this case. We provided this information to BCS in our Response to Interrogatories, delivered to BCS on 20 Feb 2013. Nevertheless, BCS counsel is still harassing our lawyers, demanding further information about how we investigated this question.
Seriously?
First off, there's a First Amendment issue here. JJS is entitled to say whatever he or she wants to say. I have no control over what s/he posts, and frankly it's not my business. Second, in their failed anti-SLAPP motion last year, they accused LASD of using litigation as a tool to chill public debate. I can't imagine the purpose of this inquiry, other than to seek to harass the real person being the JJS persona. And finally, is this really what we have to burn taxpayer funds asking and answering? Is there no more important issue to discuss?
Regardless, we don't know who Joan J Strong is. (But if s/he is reading this, s/he can consider herself/himself to have achieved a new level of notoriety.)
Respondents Responses to BCS Special Interrogatories
Wednesday, February 20, 2013
BCS Defies the Courts (Again)
2009-10 Attorney's Fees
Regular readers will recall that, along with the 2012-13 litigation, we still have another sword hanging over our heads- the BCS motion for attorney's fees in the 2009-10 case. A quick refresher of that activity:
February 2012: BCS began threatening that they wanted to collect attorney fees.
July 2012: BCS files actual demand for $1.3M in fees.
Aug 2012: LASD files discovery to understand the fee demands. BCS refuses to answer the discovery.
Sept 2012: During the "meet and confer process", the Judge decides she'll need to hear full arguments on discovery.
Oct 2012: Oral arguments are heard on the discovery motion. BCS counsel is defiant during the hearing, despite several cautions from the Judge.
Nov 2012: The Judge rules for LASD on the discovery, and grants sanctions of $51,000 for BCS' incomprehensible stonewalling of the discovery process.
Dec 2012: BCS appeals the sanctions, and the discovery (as closely as they can). The appeals court returns a ruling in < 48 hours, denying both requests. BCS attorney calls the sanctions "monopoly money", and insists the District "will never see a dime"
Jan 2013: District follows up on discovery. BCS asserts that they have "no documents responsive to the request.
Now at this point, one might wonder why BCS put up so much of a fight. If they had no documents, it would seem strange to spend a lot of energy fighting the issue.
Feb 2013: The reality, though, is that there are documents- but BCS has apparently decided to defy the courts and not produce them. The District is following up with BCS, and is making clear that we will once again seek sanctions, including "issue sanctions". (Basically, in addition to reimbursing LASD for the money we've spent forcing them to comply with a court order, the Judge could simply rule in our favor on something, essentially as a penalty for their abuse of the discovery process.)
As always, I've included the complete correspondence.
Letter to BCS counsel
3rd Set of Interrogatories
3rd Set of Request for Production
We've also prepared the documentation to request the actual sanctions. According to the court rules, we prepare these, but wait to file them later. Yes, we're following the process, because we intend to follow through and request these sanctions.
Notice of Motion for Monetary Sanctions
POS Motion for Monetary Sanctions
For those who wonder why we can't spend as much time in negotiations, this kind of nonsense is a great example. Complying with Discovery is one of the most basic things you do in litigation. Yet BCS has chosen to litigate this issue several times over, fighting LASD every step of the way. There simply is no justification for it (as evidenced by the sanctions imposed by Judge Lucas, and upheld by the Appellate Court). When we have to do this sort of work every day, there just isn't much time for anything else.
To see related blog posts, click the "Attorney's Fees" label below.
Regular readers will recall that, along with the 2012-13 litigation, we still have another sword hanging over our heads- the BCS motion for attorney's fees in the 2009-10 case. A quick refresher of that activity:
February 2012: BCS began threatening that they wanted to collect attorney fees.
July 2012: BCS files actual demand for $1.3M in fees.
Aug 2012: LASD files discovery to understand the fee demands. BCS refuses to answer the discovery.
Sept 2012: During the "meet and confer process", the Judge decides she'll need to hear full arguments on discovery.
Oct 2012: Oral arguments are heard on the discovery motion. BCS counsel is defiant during the hearing, despite several cautions from the Judge.
Nov 2012: The Judge rules for LASD on the discovery, and grants sanctions of $51,000 for BCS' incomprehensible stonewalling of the discovery process.
Dec 2012: BCS appeals the sanctions, and the discovery (as closely as they can). The appeals court returns a ruling in < 48 hours, denying both requests. BCS attorney calls the sanctions "monopoly money", and insists the District "will never see a dime"
Jan 2013: District follows up on discovery. BCS asserts that they have "no documents responsive to the request.
Now at this point, one might wonder why BCS put up so much of a fight. If they had no documents, it would seem strange to spend a lot of energy fighting the issue.
Feb 2013: The reality, though, is that there are documents- but BCS has apparently decided to defy the courts and not produce them. The District is following up with BCS, and is making clear that we will once again seek sanctions, including "issue sanctions". (Basically, in addition to reimbursing LASD for the money we've spent forcing them to comply with a court order, the Judge could simply rule in our favor on something, essentially as a penalty for their abuse of the discovery process.)
As always, I've included the complete correspondence.
Letter to BCS counsel
3rd Set of Interrogatories
3rd Set of Request for Production
We've also prepared the documentation to request the actual sanctions. According to the court rules, we prepare these, but wait to file them later. Yes, we're following the process, because we intend to follow through and request these sanctions.
Notice of Motion for Monetary Sanctions
POS Motion for Monetary Sanctions
For those who wonder why we can't spend as much time in negotiations, this kind of nonsense is a great example. Complying with Discovery is one of the most basic things you do in litigation. Yet BCS has chosen to litigate this issue several times over, fighting LASD every step of the way. There simply is no justification for it (as evidenced by the sanctions imposed by Judge Lucas, and upheld by the Appellate Court). When we have to do this sort of work every day, there just isn't much time for anything else.
To see related blog posts, click the "Attorney's Fees" label below.
Thursday, February 7, 2013
BCS Presentation on Prop 39 offer
I run a professional services practice in my day job, so I end up negotiating a lot of agreements with clients. Typically there's a Professional Services Agreement, and a series of Statements of Work that fit under the agreement. As in any business, we want to have a long term relationship with our clients.
Occasionally when we start the negotiating process, it becomes clear that the parties have very different expectations. At that point, we have a lot of ground to cover. If I start lobbing back contract redlines with statements like "you guys are crazy, you don't know what you're talking about", what are the chances that I'm going to come to an agreement with the client? Even if I do, what are the chances that the next negotiation is going to go well?
This past week, BCS had a Board meeting and they discussed the Prop 39 offer. I've attached the slides presented by one of their Board members, Janet Medlin. I'm disappointed in the tone of this document. Frankly, it reads like pre-litigation notes much more than any sort of constructive dialogue. If someone is genuine in their desire to negotiate, and in a desire to foster better relations, they would moderate what they say. This document reflects no such moderation.
I have attached the document exactly as I received it from BCS. The red font, etc. are entirely theirs.
link to BCS presentation
This stands is stark contrast to the pleas from other BCS Board members for constructive discussions. However, the LASD Board has to deal with both ends of this spectrum. To those who argue in favor of increased engagement, a gentle reminder that the LASD Board has to deal with this type of discourse also. Unless this faction of the BCS board can be reigned in, I have little hope for any sort of constructive engagement outside of the courtroom.
In case it needs to be clarified- changing the text of the presentation isn't enough. What we say is just as important, and it is critical that the entire dialogue be more civil. There is a recording of the meeting that I'll try to get to post here also.
Occasionally when we start the negotiating process, it becomes clear that the parties have very different expectations. At that point, we have a lot of ground to cover. If I start lobbing back contract redlines with statements like "you guys are crazy, you don't know what you're talking about", what are the chances that I'm going to come to an agreement with the client? Even if I do, what are the chances that the next negotiation is going to go well?
This past week, BCS had a Board meeting and they discussed the Prop 39 offer. I've attached the slides presented by one of their Board members, Janet Medlin. I'm disappointed in the tone of this document. Frankly, it reads like pre-litigation notes much more than any sort of constructive dialogue. If someone is genuine in their desire to negotiate, and in a desire to foster better relations, they would moderate what they say. This document reflects no such moderation.
I have attached the document exactly as I received it from BCS. The red font, etc. are entirely theirs.
link to BCS presentation
This stands is stark contrast to the pleas from other BCS Board members for constructive discussions. However, the LASD Board has to deal with both ends of this spectrum. To those who argue in favor of increased engagement, a gentle reminder that the LASD Board has to deal with this type of discourse also. Unless this faction of the BCS board can be reigned in, I have little hope for any sort of constructive engagement outside of the courtroom.
In case it needs to be clarified- changing the text of the presentation isn't enough. What we say is just as important, and it is critical that the entire dialogue be more civil. There is a recording of the meeting that I'll try to get to post here also.
Monday, February 4, 2013
Case Management Filings
Today both sides filed Case Management paperwork. I don't pretend to know all of the nuances, but in the spirit of transparency, I've posted the docs for both sides.
The key issue is that the case may transition to Judge Overton from Judge Lucas. Judge Lucas is rotating to new responsibilities within the same court, and so the case may be shifted to Judge Overton. However, Judge Overton also may decide that the case is complex and nuanced, and that Judge Lucas has the best handle on it. So we'll wait and see what happens.
BCS Case Management Filing
LASD Case Management Filing
The key issue is that the case may transition to Judge Overton from Judge Lucas. Judge Lucas is rotating to new responsibilities within the same court, and so the case may be shifted to Judge Overton. However, Judge Overton also may decide that the case is complex and nuanced, and that Judge Lucas has the best handle on it. So we'll wait and see what happens.
BCS Case Management Filing
LASD Case Management Filing
Thursday, January 31, 2013
BCS Preliminary Facilities Offer
(Note: This letter went to all LASD parents and those who subscribe to our email list. It includes a letter I sent to Ken Moore regarding the facilities offer that the District will deliver this week.)
Dear Parents, Guardians, and Community Members-
Last night at a Special Board Meeting, the LASD Board of Trustees instructed staff to deliver a preliminary facilities offer to BCS for the 2013-14 school year. The Prop 39 process provides for the District to make the preliminary offer, for BCS to respond with objections by March 1, and for the District to provide a final offer by April 1. This is the same process we follow every year.
Prop 39 requires the District Trustees to balance the needs of all students. Our offer to BCS this year proposes that their K-5 students be located at Egan, and their 6-8 students would be at Blach. In practical terms BCS would have about 40% of the students on the Egan campus, and about 40% of the land. Similarly, they would have about 20% of the students at Blach, and 20% of the land. However, Blach will also be impacted further because we are required to provide specialized teaching space to Jr High students. Principal Sandra McGonagle and her staff have worked with the administration to rework the Blach schedule to ensure reasonably equivalent access to the Specialized Teaching Space for BCS students while trying to minimize the impact on our own students. We have asked Principal McGonagle to reach out to BCS Principal Wanny Hersey to have a tactical discussion to review the sharing arrangements as proposed in the offer. We will consider that feedback as part of the final offer we present on April 1.
BCS held a PR event last week where they announced their willingness to accept a split between Egan and Blach. We are pleased that they are demonstrating an understanding of the need to balance the needs of all students. They have also acknowledged our requirement that all board-level discussions of the facilities offer be held in public, so that the community can observe the process. The LASD Board remains committed to transparency of this process, as we have done throughout the year. They also requested a whole series of Board-level meetings to discuss the offer. At this time, the LASD Board is planning to hold a Special Meeting on Feb 25th, and we may consider a further meeting in March.
The District cannot afford to spend as much time as BCS requests in meetings since we already are spending an inordinate amount of time dealing with the multiple lawsuits brought by BCS. BCS continues to litigate every issue and sub-issue within the 2012-13 offer, despite having lost every action they've brought in the past year. The courts have consistently recognized that the LASD Board is properly balancing the needs of all students. There are only so many hours in the day. LASD runs one of the leanest administrations in California. We rightly focus our resources in the classroom where they belong. In order to prepare the Prop 39 offer, we already divert tremendous resources to analyze possible scenarios and weigh the impacts. Couple that with the need to perform basic functions to continue to run a district that educates 4,500 students, and there simply isn't any additional time in the week to add another series of meetings. Said another way, we are already meeting with BCS several times per week to discuss facilities issues. It is unfortunate that BCS has decided that those meetings should be managed by the attorneys and held within the framework of the judicial process. I continue to call upon BCS to put a freeze on the litigation so that the hundreds of hours we spend each week on BCS issues can be spent more constructively engaged in a more respectful, solutions based dialogue.
I look forward to your continued input at the Board meetings.
Best Wishes,
DJS
(Link to the attached letter that I sent to Ken Moore)
Update @ 10pm. Someone contacted me and asked me to publish Ken's letter, to which this responds. Here is the letter and here is the presentation they used at their PR event.
Dear Parents, Guardians, and Community Members-
Last night at a Special Board Meeting, the LASD Board of Trustees instructed staff to deliver a preliminary facilities offer to BCS for the 2013-14 school year. The Prop 39 process provides for the District to make the preliminary offer, for BCS to respond with objections by March 1, and for the District to provide a final offer by April 1. This is the same process we follow every year.
Prop 39 requires the District Trustees to balance the needs of all students. Our offer to BCS this year proposes that their K-5 students be located at Egan, and their 6-8 students would be at Blach. In practical terms BCS would have about 40% of the students on the Egan campus, and about 40% of the land. Similarly, they would have about 20% of the students at Blach, and 20% of the land. However, Blach will also be impacted further because we are required to provide specialized teaching space to Jr High students. Principal Sandra McGonagle and her staff have worked with the administration to rework the Blach schedule to ensure reasonably equivalent access to the Specialized Teaching Space for BCS students while trying to minimize the impact on our own students. We have asked Principal McGonagle to reach out to BCS Principal Wanny Hersey to have a tactical discussion to review the sharing arrangements as proposed in the offer. We will consider that feedback as part of the final offer we present on April 1.
BCS held a PR event last week where they announced their willingness to accept a split between Egan and Blach. We are pleased that they are demonstrating an understanding of the need to balance the needs of all students. They have also acknowledged our requirement that all board-level discussions of the facilities offer be held in public, so that the community can observe the process. The LASD Board remains committed to transparency of this process, as we have done throughout the year. They also requested a whole series of Board-level meetings to discuss the offer. At this time, the LASD Board is planning to hold a Special Meeting on Feb 25th, and we may consider a further meeting in March.
The District cannot afford to spend as much time as BCS requests in meetings since we already are spending an inordinate amount of time dealing with the multiple lawsuits brought by BCS. BCS continues to litigate every issue and sub-issue within the 2012-13 offer, despite having lost every action they've brought in the past year. The courts have consistently recognized that the LASD Board is properly balancing the needs of all students. There are only so many hours in the day. LASD runs one of the leanest administrations in California. We rightly focus our resources in the classroom where they belong. In order to prepare the Prop 39 offer, we already divert tremendous resources to analyze possible scenarios and weigh the impacts. Couple that with the need to perform basic functions to continue to run a district that educates 4,500 students, and there simply isn't any additional time in the week to add another series of meetings. Said another way, we are already meeting with BCS several times per week to discuss facilities issues. It is unfortunate that BCS has decided that those meetings should be managed by the attorneys and held within the framework of the judicial process. I continue to call upon BCS to put a freeze on the litigation so that the hundreds of hours we spend each week on BCS issues can be spent more constructively engaged in a more respectful, solutions based dialogue.
I look forward to your continued input at the Board meetings.
Best Wishes,
DJS
(Link to the attached letter that I sent to Ken Moore)
Update @ 10pm. Someone contacted me and asked me to publish Ken's letter, to which this responds. Here is the letter and here is the presentation they used at their PR event.
Friday, January 25, 2013
BCS Accepts Split, Asks for More at Blach
In a Luncheon/PR event held this past Wednesday, BCS has stated that they will not seek to close down Covington this year, and are embracing the idea of a Blach/Egan split. (Patch Article, Town Crier Article) I'm certainly pleased to see that they're internalizing what we've been saying- that closing a high performing neighborhood school isn't a viable option. Now we have to figure out what comes next.
I was unable to attend the luncheon, as my invite arrived less than 48 hours before the event and I'd already made commitments to clients in my "other job". I will be interested to see how this proposal meshes with the delivery of education to the students we already have on these campuses. That will require quite a bit of analysis.
I've already been asked several times what I think of the proposal. From a practical viewpoint, I really don't know. Preparing the Preliminary Offer under Prop 39 is a time-consuming task. We have staff analyzing multiple options already, and they're stretched beyond the breaking point just to get that work done. The LASD Board gave instruction to staff on Jan 14 to analyze several configurations, and come back with their thoughts on those options. This new wrinkle from BCS arrived on January 23rd, and it's not fully fleshed out yet. Staff simply won't have time to add one more configuration to the options list and still complete their task for the Board meeting this Monday. Any consideration of the BCS request will have to come after the preliminary offer due on February 1st.
One other positive development has come from this- BCS is embracing the requirement that all discussions be public. I've been saying since October of last year that the process needs to be open and transparent. I've rejected requests for private meetings, and have emphasized the need for transparency. I do this for very practical reasons- I want parents on both sides to understand the balancing process. When parents at Blach understand that there is likely to be increased encroachment on their campus next year, I want them to have seen that we didn't do it lightly. Likewise, I want BCS parents to understand that we do have other considerations to balance, that this really is a "zero sum" situation. The district has a fixed set of buildings, land, and money. We can't just "add more" so we have to balance the needs of all students. By having the process open to the public, hopefully everyone will understand the trade-offs we've chosen to make.
At our last Board Meeting, I suggested that we might want one or more study sessions with BCS to discuss the preliminary offer. I still believe that is the right course, and I expect that I'll be taking that up with my colleagues on Monday at our Board meeting. As always, the public is welcome to attend and see how things progress.
It is worth noting that the litigation train keeps moving too. We were back at Court this week for a Case Management Conference, and we had discovery responses to deliver in answer to demands from BCS. We are a comparatively small school district. It shouldn't come as a surprise that the same people who work on the Prop 39 offer are also the ones who have to respond to discovery requests and sit through depositions. I wish they had 72 hours in each of their days, but they don't- which means that the time they spend on litigation is time not spent exploring creating solutions. I can't stress enough the need for BCS to dial down the litigation, so that we have bandwidth to explore other options for facilities.
I was unable to attend the luncheon, as my invite arrived less than 48 hours before the event and I'd already made commitments to clients in my "other job". I will be interested to see how this proposal meshes with the delivery of education to the students we already have on these campuses. That will require quite a bit of analysis.
I've already been asked several times what I think of the proposal. From a practical viewpoint, I really don't know. Preparing the Preliminary Offer under Prop 39 is a time-consuming task. We have staff analyzing multiple options already, and they're stretched beyond the breaking point just to get that work done. The LASD Board gave instruction to staff on Jan 14 to analyze several configurations, and come back with their thoughts on those options. This new wrinkle from BCS arrived on January 23rd, and it's not fully fleshed out yet. Staff simply won't have time to add one more configuration to the options list and still complete their task for the Board meeting this Monday. Any consideration of the BCS request will have to come after the preliminary offer due on February 1st.
One other positive development has come from this- BCS is embracing the requirement that all discussions be public. I've been saying since October of last year that the process needs to be open and transparent. I've rejected requests for private meetings, and have emphasized the need for transparency. I do this for very practical reasons- I want parents on both sides to understand the balancing process. When parents at Blach understand that there is likely to be increased encroachment on their campus next year, I want them to have seen that we didn't do it lightly. Likewise, I want BCS parents to understand that we do have other considerations to balance, that this really is a "zero sum" situation. The district has a fixed set of buildings, land, and money. We can't just "add more" so we have to balance the needs of all students. By having the process open to the public, hopefully everyone will understand the trade-offs we've chosen to make.
At our last Board Meeting, I suggested that we might want one or more study sessions with BCS to discuss the preliminary offer. I still believe that is the right course, and I expect that I'll be taking that up with my colleagues on Monday at our Board meeting. As always, the public is welcome to attend and see how things progress.
It is worth noting that the litigation train keeps moving too. We were back at Court this week for a Case Management Conference, and we had discovery responses to deliver in answer to demands from BCS. We are a comparatively small school district. It shouldn't come as a surprise that the same people who work on the Prop 39 offer are also the ones who have to respond to discovery requests and sit through depositions. I wish they had 72 hours in each of their days, but they don't- which means that the time they spend on litigation is time not spent exploring creating solutions. I can't stress enough the need for BCS to dial down the litigation, so that we have bandwidth to explore other options for facilities.
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