CommentsEASTSIDER-Back in May of last year I wrote a column in CityWatch on the secret, underhanded hiring of Austin Beutner in violation of the Brown Act. Now we find out that, as Jackie Lacey runs for re-election for District Attorney, it was all a misunderstanding and there was no problem.
History
As noted by the LA Daily News, last year, the East Area Progressive Democrats filed a complaint with Lacey over Brown Act violations in his closed session hiring.
Here’s what the paper reported on the EAPD Complaint:
“Contrary to Brown Act requirements, “board members never announced that the board had selected a candidate, the name of the candidate they selected, that a vote had occurred, the outcome of the vote, or how or whether each board member had voted in that decision in the April 20 closed meeting,” Fischer alleged in the complaint.
“The May 7 complaint by the East Area Progressive Democrats club to the D.A.’s Public Integrity Division alleged “substantial violations of the (state’s Ralph M.) Brown Act” involving a special Los Angeles Unified School District Board of Education meeting last month.
The letter, authored by the club’s communications director Mary Fischer, centers around an alleged secret vote that took place on April 20 during a closed-session agenda item for “personnel” issues at the meeting.”
The “who did what” part is pretty straight up. At the time of the April 20 LAUSD Board closed session meeting, the Board was split 4-3 in wanting to hire Austin Beutner, a man who knows squat about schools but knows a bunch about his Billionaire Boys Club buddies who owned the four votes.
Problem was, the tie-breaking vote was Ref Rodriguez, bought and paid for by the Charter school industry. An equally big problem is that he was under indictment for multiple felonies by...you guessed it...LA County District Attorney Jackie Lacey.
So, on April 20 the Board held an un-agendized closed session where they voted to negotiate an employment agreement with Mr. Beutner. Later, true or not, Board member Scott Schmerelson stated that the action taken was “to authorize negotiations for an employment contract with Mr. Austin Beutner as the General Superintendent of the District.”
Sins and Omissions
It’s not like Jackie Lacey didn’t know the score; she’s no dummy. But she is a politician, and like the long line of establishment big-bucks DAs before her, knows how to conduct a slow roll to the garbage chute of a political time bomb such as what the EAPD complaint represented.
Step one is to bury the sucker; in this case for almost a full year after the April 20, 2018 meeting. Time would pass, Beutner would get to “prove” himself, maybe something would come out of UTLA negotiations, maybe he could implement enough changes that the bell could not be un-rung, whatever. Buy enough time and maybe they will forget everything except that the wonderful DA cut a deal with Rodriguez in exchange for his resignation.
The second step is that after you have delayed as long as you can, and you are in the midst of announcing your re-election campaign with great fanfare, you can’t afford to have this case still hanging out there in purgatory. Even though most of the press has been kind enough to ignore the complaint, it could get messy and become a campaign issue.
So how to do that? Simple. Give the Charter School lawyers plenty of time (and billable hours) to gin up an appellate case or two that might, just might, pass the smell test.
So…I think that’s what she did.
Cases, or A Case?
In a letter dated March 14, 2019, the DA stated that, “Based on the foregoing facts and analysis, we decline to find that the Board violated the Brown Act when it did not disclose that it had agreed to enter into negotiations with Mr. Beutner regarding his employment as superintendent.”
The sole case actually cited is Gillespie v. San Francisco Pub. Library Com. (1998) 67 Cal. App.4th 1165. You can look it up to see how apt you think it is to these factual circumstances.
What the DA does say in their letter correctly poses the question: “The question therefore is whether the Board, in agreeing to enter negotiations with Mr. Beutner, took action to employ or appoint him to the position of superintendent. If so there was an obligation to disclose information about the action when the Board resumed its public session.”
They then twist events into a personnel exemption to the Brown Act with the following conclusion: At its meeting of April 20, 2018, it appears that the Board voted to authorize negotiations with Mr. Beutner. However, like in Gillespie, supra, the available evidence shows that the Board did not make a final decision in the matter. It only voted to negotiate with a candidate...”
And further, “As the Court stated in Gillespie, supra, “to ‘appoint’, a candidate is, by definition, to make the final staffing decision after all considerations have been concluded... because ‘all considerations’ were not concluded, there was no final action, and we do not believe the Board’s non-disclosure of the agreement to negotiate violated the Brown Act.”
The Takeaway
With all due respect to the legal contortions of the District Attorney, the secret (I mean, “closed session”) decision to negotiate with Beutner was in fact a final decision. As long as the indicted Board member Ref Rodriguez could vote, the vote was 4-3 to hire Austin Beutner as front for the Charter School industry.
If for some reason Ref went to trial and lost or copped a deal to resign as part of a plea agreement, the Board vote would be 3-3 until such time as a special election could be held. Thus, they would have had to continue with an “acting” Superintendent. Big deal? You bet. There might not even have been a strike, as new hire Austin Beutner implemented the Charter School program for taking over the District.
You can characterize my musings as speculation, and certainly they are one person’s opinion. At the same time, I believe that they track a lot closer to the political realities on the ground during this time frame than the wimpy conclusion of the DA.
Face it, if the DA found that the Brown Act was violated in hiring Beutner, then there would be a nightmare in waiting: Jackie Goldberg winning the runoff in May and providing a 4-3 Board antithetic to the Charter Schools and their billionaire boys club of funders.
Even as Jackie Lacey runs for re-election as DA, I think these political realities had a lot more to do with the decision to deny the Brown Act violation than the law did. I guess we’ll see in the upcoming DA election how all this plays out, including who gives money and endorsements to Lacey’s campaign.
Just sayin’
P.S. CityWatch doesn’t embed pdf files, and my copy of the DA’s letter to Mary Fischer of the EAPD is a pdf file. If you want an actual copy of the DA’s denial letter, it to you if you contact me at [email protected].
(Tony Butka is an Eastside community activist, who has served on a neighborhood council, has a background in government and is a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.
