GGUSD and Brown Act Violations: A follow-up

Last week I wrote about Interesting details revealed by audio of GGUSD Meeting. In my post I wrote that I had sent a letter to the Garden Grove Unified School District (GGUSD) Board of Trustees regarding the apparent violation of the Brown Act perpetuated by Lan Nguyen just prior to the GGUSD meeting of December 15th that was disclosed by Trustee KimOanh Nguyen-Lam on January 5th. On Saturday I received a response to my letter from Ronald Wenkart, General Counsel for the Orange County Department of Education. The Department of Education represents the district in legal matters.

In Wenkart’s letter he points to Government Code § 54952.2 (b) (2) as permitting individual discussions between board members provided the content of those discussions is not communicated to other members of the board. In referencing the conversations between Trustee’s Lan Nguyen and Bob Harden, and Lan Nguyen and George West, Wenkart claims that those discussions were two separate one-on-one conversations between individual board members. He claims that since Nguyen did not speak to Harden about the Vice President/Secretary position, and did not speak to West about the President position, that Nguyen did not communicate to members of the Board the comments or positions of any other member of the Board and therefore there was no violation of the Brown Act.

Now I understand that it is Wenkart’s role as counsel to the GGUSD Board of Trustees to find a way for the board to avoid admitting any improper conduct by its members with regard to the Brown Act, but he is really reaching for something to grab hold of that simply isn’t there. Despite his argument being absurd on it’s face, two things occurred here which Wenkart conveniently ignores. First, the one-on-one conversations that he claims occurred were in fact conducted with a majority of the Board present. Government Code § 54952.2 (a) is quite specific in its definition of a “meeting” of a legislative body.

“meeting” means any congregation of a majority of the members of a legislative body at the same time and location, to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.

Clearly, the facts show that a majority of members of the Board were congregated in the same location, where an item within the subject matter jurisdiction of the Board was discussed and deliberated. Specifically, the item, as posted on the agenda of the meeting in question, was the “Election of Officers.” The item discussed was a combination of the election of President and Vice President/Secretary; not those items separately. The Brown Act does not require that all parties participate in all discussions or deliberations in order to trigger a violation of the Act. If a discussion of matters in the presence of a majority of the members occurs, then there is a violation.

Second, since Trustee Nguyen-Lam witnessed and heard the details of the conversations between Trustee’s Nguyen and Harden as well as Nguyen and West it is unreasonable to conclude that Nguyen, Harden, and West did not hear both discussions regarding the Election of Officers. Government Code § 54952.2 (b) (1) makes it quite clear that “a majority of the members of a legislative body shall not, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”

Which brings me to Wenkart’s point regarding Government Code § 54952.2 (b) (2). This section does not apply in this case since the comments and positions of members Nguyen, Harden, and West were in fact communicated, not only amongst the three of them but, to other members of the Board as well. While those comments and positions were not directly communicated by Trustee Nguyen to the other members, the fact that he conducted his serial conversations in the presence of other members, who together constituted a majority of members, caused the act of communication to occur. Since Trustee Nguyen caused the communication to occur, he in effect communicated the comments and positions of the other members which occurred through the serial conversations he facilitated, which is prohibited.

So either a majority of the board discussed directly and together an item, or items, on their meeting agenda prior to that meeting, or Trustee Nguyen facilitated serial discussions of a matter or matters on the board meeting agenda and caused the content of those conversations to be communicated to the participating board members. Either way, the Brown Act was indeed violated.

One further point that I feel compelled to mention. Mr. Lan Nguyen in his comments stated that when he “talked to Mr. Harden” he “made it a point that he talked to Mr. Harden only;” that he “did not speak to Dr. West:” that he “didn’t need to talk to Dr. West;” that  he “just assumed;”  that he “was fully aware of the implications of the Brown Act that’s why (he) didn’t talk to anyone else about this subject matter.”

Wait a minute here; Lan Nguyen want’s people to believe that he “assumed” he would be nominated by Dr. West as Vice President/Secretary? Seriously!?

Based upon Nguyen’s own comments and Wenkert’s subsequent attempt to parse one agenda item into two, it’s clear that we’ve got a couple lawyers trying like rabbits to find a hole in the Brown Act fence to crawl through. Nguyen’s comment indicates that he was aware of the provisions of the Brown Act and went.out of his way avoid following them; apparently in order to orchestrate who would be nominated for which officer position. As far as Nguyen’s denial that he even spoke to Dr. West regarding the position of Vice President/Secretary is concerned, that argument is easily dismissed in light of Dr. West’s admission that a conversation occurred but that he “did not remember the details of the conversations,” once he was confronted with Nguyen’s denial that any conversation occurred. Simply put, either someone isn’t telling the truth or Dr. Nguyen-Lam has a very vivid imagination?

From my perspective this is a pretty clear cut violation of the Brown Act. I am a bit surprised that Mr. Wenkart would simply advise the Board to avoid having individual conversations regarding agenda items in the presence of other members in order to avoid the appearance of, or inadvertent violations of the Brown Act. He seems to be implying that such serial conversations are alright as long as they don’t happen in the presence of other members, which is legal speak for “no witnesses, no problem.”

Thankfully, Dr. KimOanh Nguyen-Lam had the ethics and courage to step up to the plate and say something about it. My guess is that the majority of GGUSD Board Members will simply put their heads in the sand and pretend that nothing improper occurred.

I would suggest that people go to tonight’s Board meeting and let the Board know what you think, but there really isn’t any point. The Garden Grove Unified School District Board of Trustees majority has such routine disdain for the Brown Act that they don’t even provide an opportunity for public comment on their meeting agenda. Yes, that’s another violation of the Brown Act, specifically Government Code § 54954.3.

And to think, none of this controversy would have occurred at all if Lan Nguyen had simply followed the Brown Act in the first place. Instead he had to go and try to be sneaky, jumping through hoops in an attempt to skirt the law. All of that, just to set up who would be nominated for the officer positions on the Board.

Yep, Van Tran taught him well.