Gray area present in Brown Act allegation

Marisa O’Neil

A Newport-Mesa Unified School District trustee is accusing his

colleagues of possibly violating board policy and the state’s

open-meeting law.

Trustee Tom Egan read a written statement at the end of Tuesday

night’s otherwise routine school board meeting. The statement, which

referred to an e-mail sent by a fellow trustee, was greeted with a

stunned silence in the board chambers.

“In the district’s five-year strategic plan, we commit ourselves

to: ‘Hold ourselves accountable to the highest standards of

performance and service, which improve and support student

learning,’” Egan read during his trustee report. “For board members,

that standard of excellence includes following all our board policies

and obeying all state laws.”

The alleged violations of board policy and the state’s

open-meeting law, the Brown Act, stemmed from an e-mail sent by board

member Martha Fluor to California School Board Assn. Executive

Director Scott Plotkin. It came after Plotkin and Egan had a heated

e-mail debate discussing policy issues.

“I apologize on behalf of the rest of my board,” Fluor wrote to

Plotkin.

Egan said the e-mail apparently violates board policies by

“falsely claiming to speak for the board.”

According to board policy, members only have the power to act as a

unit at official meetings. Because no vote was made to authorize the

apology, it could not be on the board’s behalf, Egan contends.

“I felt an apology was in order,” Fluor said by phone on

Wednesday. “Tom [Egan] has a right to do what he wants, but the tone

[of his e-mail] was not respectful.”

A second e-mail sent by Fluor to trustees Dana Black, Serene

Stokes, David Brooks and Linda Sneen and to Supt. Robert Barbot

forwarded the e-mail in question and notified them of her apology on

the board’s behalf.

“The second message has possibly violated the Brown Act in an

apparent attempt to get concurrence from a majority of board members

by communicating with them in private,” Egan read from his statement.

Fluor said she did not consult the other board members before

sending Plotkin the apology and sent them the second e-mail to let

them know about the situation.

“It’s one of the dangers of the world of e-mail,” Plotkin said of

the exchanges. “People send communications back and forth, and in the

heat of the exchanges, maybe include dialogue they didn’t think

through first.”

Plotkin said he is not familiar with Newport-Mesa Unified School

District’s specific policies, but he didn’t see the e-mail as a

violation of the Brown Act.

“[Egan and I] were having a philosophical debate,” he said. “One

of the other board members was being protective of me or the

[California School Boards Assn.] and took it upon herself to

apologize. Everybody’s on very good terms with each other.”

Brown Act authority Terry Francke, formerly general counsel for

the California First Amendment Coalition, said a trustee taking it

upon oneself to speak for the board may be factually wrong but not

necessarily a violation of the Brown Act. If an e-mail to the board

members had encouraged or generated responses, then it could have

been, he added.

“The Brown Act is concerned with preventing discussions among a

majority of the members that are part of the decision-making

process,” he said. “So the earliest point at which it would be an

issue is when you start to have a back-and-forth involving a majority

or one or two trying to influence the others.”

Egan’s statement requested that the board investigate the matter

and discuss it in a future public meeting. Egan, who along with Sneen

has been on the board since 2002, also suggested that the veteran

board members take a refresher course on board policies and the Brown

Act.

The two new board members have attended a series of classes about

public policy and serving on school boards.

* MARISA O’NEIL covers public safety and courts. She may be

reached at (949) 574-4268 or by e-mail at [email protected].