District Attorney Issues Strong Rebuke to Hart Board Over Brown Act Violation

In a three-page letter sent late last week, the L.A. Country District Attorney's Public Integrity Division issued a strong rebuke to the William S. Hart Union High School District Governing Board for violating the Brown Act through its use of secret ballots during its June 5 meeting, leading up to its provisional appointment of Chris Fall to replace former board member Paul Strickland.

The Brown Act is California's open meeting law that requires that nearly all meetings and votes of public agencies be conducted in the open. It specifically bans the use of secret ballots in Government Code §54953(c): 

Following several hours of interviews, where the candidates were asked predetermined questions, the board underwent four rounds of voting where board members ranked their choices via secret ballot. After each round, the lower scoring candidates were eliminated. We've verified from several sources that point totals were not announced at the meeting, nor were the votes of individual board members. It appears that the votes of individual board members weren't known to anyone, including the rest of the board.

A 2003 opinion by the Attorney General allows for written ballots, so long as they are "marked and tallied in open session and the ballots are disclosable public records." Based on the public records of this meeting, it's impossible to tell who voted for who in four of the five rounds.

Neither the ballots nor the votes of board members through the first four rounds were included in the meeting's minutes. SCVTalk has obtained a copy of the letter from the District Attorney, as well as copies of the ballots used during the process.  The ballots, which you can view here, aren't named, nor do they have any identifying marks. 

The District Attorney's letter explains the role and intent of the Brown Act in protecting the public's right to view and examine the decision-making process by its elected officials. A secret ballot deprives the public of that right. It warns the board that this violation opens the board up to legal action which could invalidate the action (a moot point now, since Fall has since resigned). The letter closes by cautioning the district not to repeat the mistake, "It would be prudent for the Board to ensure that any subsequent votes be done in compliance with the act." Read the full text here.

A secret ballot can serve as a substitute for open discussion. Instead of discussing the merits of the leading candidates, the board arrived at some kind of telepathic consensus. The only motion on the floor followed four rounds of secret voting. The only open vote was a quiet, unanimous vote for Fall.

The applicants for the seat were Kane Crawford, Michael Cruz, Kenneth Dean, Chris Fall, Bruce Fox, Steven Herskovitz, John Kunak, Dean Morris, Barbara Myler, Brian Springer, Richard Shaw, Betti Sternberg, Tony Watson, and Randal Winter. The sitting board members were Joe Messina, Gloria Mercado-Fortine, Bob Jensen and Steve Sturgeon.

Reports at the time said that the board announced it would conduct four rounds of balloting, although its agenda specified that balloting end when a candidate had majority support. But an examination of the ballots show that Fall was the first choice of three of the four board members after just the second round. The third and fourth rounds were just for show, maybe to process look more deliberative than it actually was – and perhaps to nurse the egos of the applicants. 

There is also an inconsistency in the board member's voting. If you follow the scoring from round to round, you can see that at least one board member would change their preference order from round to round. Considering that there was no discussion between rounds, the shifting order suggests that some scoring was not made in complete sincerity.

The outcome wasn't surprising. Fall was the front-runner, if not a shoo-in for the seat. His resume is impressive, his connections significant.  But despite Fall being a high-paid consultant for the district's waste management vendor (whose contract was about to expire), and the founder of a company that just provided new lights for the Valencia High School gym (at posting time, his company's Facebook page features this installation as its signature achievement), no one bothered to ask if either arrangement would be a conflict of interest. 

See, the problem with not having a discussion is you don't have a discussion. You don't get answers to questions you don't ask.

Fall would quickly file to run for office in November with the designation of incumbent, no less, but because no one filed to run against the slate of incumbents, the Hart District won't have an election on the ballot in November. Everyone keeps their seats. 

But then days after the election filing deadline passes, Chris Fall resigned from the board, citing conflicts of interest since the waste management contract renewal had just gone out to bid (Fall's employer would be awarded the contract several weeks later). Last week, Fall announced that he'll also decline his next term. On Wednesday (prior to receipt of this letter), the board initiated the process to fill Fall's seat, and there was been no indication that the board intended to change their method. 

And if this couldn't get messier, the board is also going to attempt to appoint Fall's replacement to a full four-year term, despite the law being clear that a provisional appointment is only good until the next election, two years from now. Education Code §5091(e):

When filling a single seat, a special election would be prohibitively expensive, possibly in the high six figures. So it really falls on the board to take its role very seriously in terms of following the law, conducting an open and honest selection process, and in properly scrutinizing its choice.