District settles records suit for $200K
Payout decision made on same night that school board voted to shut down two schools
The Newark Unified School District will pay out $200,000 to settle a lawsuit stemming from its bungling of a public records request more than six years ago, district officials said.
The settlement puts to rest a long-running and costly legal battle for the district involving Elizabeth Brazil, a resident who was sued by the district in 2014 after she refused to return public records the district inadvertently released to her and who later sued the district, claiming it violated the California Public Records Act.
The settlement, which will be paid to Brazil’s attorney Paul Nicholas Boylan, was approved 3- 0 by the school district board Nov. 19, the same night it voted to close two elementary schools over the coming two school years to save about $1 million amid a budget deficit. Board member Ray Rodriguez was absent.
Rodriguez, on the board since 1995, and former board member Nancy Thomas said that looking back, the district could have been spared years of anguish and hundreds of thousands of dollars in legal fees if it hadn’t pursued litigation against Brazil.
“What we should learn from it is that whenever someone asks for public records, we should sit down with them and talk about exactly what they want,” Thomas said Monday in an interview.
Thomas resigned in 2019, claiming she was alarmed by district leadership’s “shifts away from being transparent, fiscally responsible and compliant with laws and codes,” she said in a statement at the time.
“We really needed to put an end to this. It’s been going on forever,” Rodriguez said Monday.
The lengthy legal issue included two connected cases and garnered the district negative attention in recent years for its failed attempt to try to recoup almost $450,000 in legal fees from Brazil, a move that was slammed by transparency advocates and ultimately influenced a change in state law.
In August 2014, the district released thousands of documents to Brazil and others in the lead-up to an election during a tumultuous time when some residents were blaming board members for pushing former Superintendent Dave Marken out of the district.
But just hours after the release, the district claimed some of the documents, including emails, had not been reviewed properly and contained sensitive information subject to attorneyclient privilege, and asked that they be returned.
When Brazil refused, the school district sued to try to force her to return the records and initially lost in Alameda County Superior Court. When the district appealed the decision to the state’s 1st District Court of Appeal in San Francisco, a judge reversed the lower court decision in July 2015 and ordered the two sides to continue litigating the issue of what documents were owed to her.
Bec ause the appea l court’s ruling favored the district, it argued it had “prevailed” and tried to force Brazil to pay its legal fees under the California Public Records Act, which Boylan called “utterly nonsensical.”
In an April 2018 ruling, Alameda County Superior Court Judge Jeffrey Brand denied the district’s bid for fees.
As a result of the school district’s actions, State Sen. Bob Wieckowski of Fremont authored a bill signed into law in 2019 that changed the wording of the act to ensure no public agency could ever again try to “shift attorney costs onto the public records requesters” unless it is a frivolous request.
Brazil filed suit against the district in 2017, claiming it still was withholding records she was owed. Boylan said this week that as the case proceeded, the district was able to negotiate the release of most of the records the district originally tried to conceal.
Boylan said that in his view, all the documents that the school officials originally claimed as privileged didn’t actually contain anything that would have “disadvantaged” the district.
“The real mystery here is why the district decided to litigate this at all, ” he said.
The records also were reviewed by an Alameda County grand jury, which issued a scathing report in 2015 criticizing district leadership for showing “wanton disregard for rules and regulations governing their behavior and how they conduct the public’s business.”
“Too many people had read this; it can’t be secret anymore. They were trying to stuff the genie back in the bottle. It can’t be done,” Boylan said Monday of the records.
“For some reason that’s beyond me, the district decided to fight this on principle,” he said.
T homas, the former board member, said the board was following the advice of its attorneys at the time. But in hindsight, she said the district simply should have let the records go and learned to be more careful.
“We’re a small district, and to have that kind of a burden of legal costs to prove a point, leave it to the big guys to fight something like that,” she said.
“We had to pay a lot in attorney fees to do the lawsuit, and then it was a public relations disaster when we went after Brazil for our attorney fees.”
F r om Au g u s t 2 014 through October 2017, attorneys from the Lozano Smith firm said the district owed it about $225,000 for the legal work, according to a court filing from 2018. But the firm tried to persuade the court that because of the “extreme reasonableness of the rates” it charged, and its “outstanding results,” it should be paid $449,000 by the district.
The total costs to the district stemming from its 2014 decision to sue Brazil were not immediately clear, and Marie dela Cruz, the district’s current chief business official, did not respond to multiple requests for comment this week.
Current board President Elisa Martinez also did not respond to multiple requests for comment.
Katherine Alberts, of Leone & Alberts, the attorney currently representing the district, did not respond to a request for comment about her charges to the district for this case.
Boylan said Brazil is a “government transparency hero in California” and said as a result of her actions and grand jury’s report, the school district is more transparent.
“Since they were unable to roll over Elizabeth Brazil,” Boylan said, “that means any individual out there, regardless of their wealth, regardless of their economic ability or access to attorneys, can find out what’s going on.”