CUSD Update, Part 2

The following paragraph is the “need to know” summary of the June 27 CUSD board meeting. Constituents should refer to this information when voting this November.

From comments in Patch.com from a Capo parent, referring to the Nov. 2010 union takeover of the school board when three candidates were elected: “Pritchard, Alpay & Hatton were the trustees (with the backing of the unions and Union First aka Children First) who promised to be open, honest and transparent, to bring healing to CUSD. The voters of CUSD were totally hoodwinked and given the ultimate in fool’s gold. They are now paying a very heavy price for believing the BS they were sold regarding Alpay, Pritchard & Hatton. If there is any hope of saving CUSD, these monsters need to be voted out of office ASAP.” http://sanjuancapistrano.patch.com/articles/cusd-board-shuts-down-budget-debate?ncid=newsltuspatc00000001

Key information from the Patch.com article, “CUSD Board Shuts Down Budget Debate.” It begins: “Twice, when Trustee Ellen Addonizio tried to speak, Trustee John Alpay successfully moved to close the discussion. A $331-million budget was approved with little conversation. The divided trustees of the Capistrano Unified School District took the unusual step of preventing debate Wednesday night as they approved a $331-million budget and a teachers’ union agreement that will result in larger class sizes and a shorter school year. … As Trustee Ellen Addonizio was starting to discuss a motion to approve the agreement with the Capistrano Unified Education Association, Trustee John Alpay moved to stop all debate on the matter.”

A CUSD constituent described Alpay’s move as a Brown Act violation, and he also got a raise for the board and made the raise look like a pay cut. He violated the Brown Act based on his own argument (see letter below). Alpay got the raise he has wanted since January 2011.

In January of 2011, Alpay wanted the board pay to be increased to $750 per month. (Ex-CUSD Trustee Marlene Draper cut the pay in a budget discussion in her final year.) So the board has been operating on a 50% cut since 2008. At the CUSD board meeting on June 27 during the budget presentation. Alpay moved and it was passed to take a cut equal to the employees (so what is that, 1.2% or 2.7% if the taxes fail?) then it will revert back to the pay as outlined in BP 9250 (a) which states Each member of the Board of Trustees may receive the maximum monthly compensation as provided for in law. Ed Code 35120 A 2 provides for compensation of $750.

Issues: In Alpay’s email, he believes, as an attorney, that the pay was reduced via a violation of the Brown Act, but then at the meeting he did the same thing. So he deliberately violated the Brown Act? In addition, his motion provides for a small cut to the board pay (what every staff member gets) from 7/1/12 to 6/30/13 and then a 100% increase on 7/1/13 (and that increase will be automatic so the public will not be made aware). So a raise is a cut? Sounds like everything else in CUSD.

From: "Alpay, John M." <JMALPAY@capousd.org>
Date: January 29, 2011 10:35:51 AM PST
To: "Farley, Joseph M."
Subject: Trustee Compensation & Reimbursement
To: Joe Farley
bcc: All Trustees
Subject: Trustee Compensation & Reimbursement

Issue
I have been spending some time lately reviewing previous board minutes to provide myself with some historical context. However, in reviewing the minutes from the February 25, 2008 meeting, it appears that the actions relating to the reduction in Trustee compensation and elimination of Trustee reimbursement may have been done incorrectly. As a result, the District has some outstanding liability issues that we should move to address.

Analysis
In the February 25, 2008 meeting, the board moved to reduce compensation from $750 to $375 per month and eliminate reimbursement for travel expenses, such changes effective July 1, 2008. Unfortunately this item was not agendized and is not reflected anywhere as a potential item for discussion. Taking any action without agendizing it 72 hours prior to the meeting is a violation of Government Code Sections 54950 and 54954.2.

Admittedly there are a number of actions that are excepted from Government Code Section 54950, such as personnel decisions covered in Government Code Section 54957, but Trustee compensation is not included.

The District has been investigated numerous times by the Orange County District Attorney's Office for procedural violations and in the past they have required various remedial actions be taken. Any third party can seek judicial action against the District for this violation as provided under Government Code Section 54960.1. Fortunately the same section allows the District to under take action necessary to correct this oversight.

It should be noted that the action taken by the Board in the February 28, 2008 meeting was also inconsistent with certain provisions of the Education Code. While Trustee compensation is set forth under Education Code Sections 35120(a)(3) and 35120(e) and is to a certain extent permissive, expense reimbursement as set forth in Education Code Section 35044 is mandatory ("shall" vs. "may"). In other words, the Board does not have the power to usurp the authority of the Legislature and eliminate expense reimbursement.

With respect to the compensation, the monies due and payable to each Trustee going back to July 1, 2008 falls under the definition of wages as defined in Labor Code Section 200. As a result, the failure to pay wages is a violation of Labor Code Section 201 and further subjects the District to penalties to each Trustee as provided in Labor Code Section 203. This means one days wages is due and payable for each day the wages are paid late (up to a maximum of 30 calendar days).

I should also point out that the vote taken was also a violation of our existing Board Bylaws. Compensation and reimbursement of expenses is specifically spelled out in BB 9250(a). Please note that the Board has the authority to suspend policies for a limited time (subject to the Education, Government and Labor codes), but only for a limited time as provided in BB 9314. The vote taken, while also inconsistent with applicable law, is not for a limited time. In addition BB 9314 requires that any changes be "reviewed on their own merits rather than the circumstances of the moment." Given the vote was taken during budget discussions, the action taken is impermissible for yet another reason.

Recommendation and Corrective Action
Because the vote taken on February 25, 2008 was improper, consistent with Government Code Section 54960.1, at the next board meeting the Board should be formally notified that the vote was improper and allow it to take corrective action. Trustee compensation since July 1, 2008 at a rate of $750 per month should be paid to all impacted trustees (with the hope they will not see Labor Code Section 203 penalties) and a procedure be developed for all trustees to seek reimbursement for all expenses since July 1, 2008. The Board should also be given the opportunity to set its own compensation level on a going forward basis, subject to proper notice as required under Government Code Sections 54950 and 54954.2 and the limitations provided in Education Code Sections 35120(a)(3) and 35120(e).

As you can see, I've spent some time reviewing various applicable California Code Sections and the Board Bylaws. If you think my analysis or conclusion is incorrect, please let me know. To be absolutely clear, this is not intended or provided as legal advice and it may be appropriate to confer with District counsel for their opinion on the matter. The February 25, 2008 vote was taken by a previous Board with Benecke, Christensen, Darnold, Draper and Stiff presiding and with Carter as Superintendent. The current Board and staff should move to correct this error and move forward in a manner consistent with applicable law.

John M. Alpay
Member, Board of Trustees
Capistrano Unified School District
33122 Valle Road
San Juan Capistrano, CA 92675
(949) 234-9200 Phone
(949) 493-8729 Fax