Inan action that will no doubt have a chilling effect on those seeking tokeep California government and school districts operating in thesunshine, an Orange County school district board has successfullyconvinced a California appeals court that it not only has the right toshut down and cover-up dissent but also financially punish thoseseeking to expose the illegal actions.
Californians Aware,a Carmichael-based non-profit dedicated to helping Californians andCalifornia journalists keep their government operating out in the open,sued the Orange Unified School District when it edited out a school board member's publiccriticism of the panel's decision to demote one of the district's highschool principals from a DVDrecording of the meeting.
The board also acted to formally censure theoffending board member, a violation of its own bylaws.
CalAware,and its then president, Richard McKee, warned the board that itsactions violated the state's Brown Act which, among other things,prohibits the district from discouraging the expressions of itspublicly elected governing board members.
CalAware's general counsel, Terry Francke, takes the story from here:
Afterthe censure action, McKee and CalAware petitioned the court for anorder overturning the censure and for a declaration that the editing ofthe recording of the meeting was unlawful. It sought no money damagesor other remedies, and was filed by a trial lawyer on the CalAwareboard who took the case pro bono publico-waiving any fees if the actionwas unsuccessful.
OrangeUnified (in response) filed an anti-SLAPP (strategic lawsuit againstpublic participation) motion, claiming that McKee and CalAware weretrying to stifle the district's right to free speech. Such a motionasks dismissal of any lawsuit that attempts to chill the valid exerciseof free speech in matters of public interest. If the court grants themotion, not only is the case against the speaker tossed out of court,but the plaintiff seeking to stop the speech must pay the speaker'sattorney fees.
The trial judge liked-and promptlygranted-the district's anti-SLAPP motion, saying the OUSD Board wasright to censure the minority member's criticism, calling it "boorish,"and concluded that the alteration of the meeting (DVD) to remove thecritical comments was protected, because it represented the right ofthe district to control its own speech.
Confident thatthe ruling would be overturned under Proposition 59, the Brown Act andthe First Amendment, McKee and CalAware appealed, pleading that thepublic had a right to hear all the comments made by its electedrepresentatives at an open meeting. But the Fourth Appellate Districtsitting in Santa Ana agreed with the trial court that the district'sspeech rights trumped the dissident trustee's, ruling that McKee andCalAware were responsible for OUSD's attorney fees. Then, after theCalifornia Supreme Court denied review, reality set in.
Despitethe fact that the Brown Act itself protects plaintiffs suing to enforceopen government from such a fee order unless the action is judged"clearly frivolous and totally lacking in merit" (a finding not made byeither of these courts), McKee and CalAware are on the hook (for thedistrict's attorneys fees).
Francke says that inthe wake of the decision McKee's wages have been garnished and a lienhas been placed upon his home to help pay the $86,000 he owes theOrange district. The 34-year Pasadena City College chemistry professorand opens meetings and government activist says he has taken out asecond trust deed and is currently dismantling his retirement accountsto come up with more cash. CalAware, a small nonprofit, has put in$6,000 but cannot contribute much more due to its small size andmembership.
Francke says he is outraged by the decision.
...Here,despite the California Constitution and the Brown Act, the courts havegranted public agencies the right to punish expressions of concern madeby their own officers to the public they serve, and to censor anyinformation from its publications that the agency doesn't want thepeople to see or hear," Francke said. "These are rights usuallyassociated with an authoritarian regime, not a democratic republic.
More information on thecase can be had by clicking on the link above or e-mailing Francke atinfo@calaware.org.
Jeff Mitchell is a longtime California journalist and political observer.