School district attorney advises board not to discuss special education report in public

Tehachapi Unified School District has spent hundreds of thousands of dollars to defend and settle disputes related to special education in recent years. And in 2020 the district spent about $40,000 to commission a review of its special education services.

But information about disputes and the amount of settlements has not been made public in school board meetings. Nor has the Board of Trustees publicly discussed the steps the district has taken to correct problems identified in a Special Education Study received in January 2021.

The settlements are discussed and approved by the school board in closed session, as allowed by law. But nearly all of the board’s discussion of the study it commissioned also has been in closed session.

An attempt by Trustee Joe Wallek to bring a board discussion of the critical report into the open was stymied on Oct. 11 when the district’s legal counsel, Grant Herndon of Schools Legal Service, cautioned the board about discussing what he said is a confidential personnel record.

BROWN ACT

California’s open meeting law, commonly known as the Brown Act, calls for deliberation of public bodies to take place in open session. However, there are exceptions that allow school boards and other governing entities to meet and take action in closed session, although some actions must be reported to the public.

Among exceptions are providing direction to legal counsel related to actual and potential litigation and discussing personnel.

The personnel exemption has been expanded upon by case law, giving the board great latitude to meet with staff behind closed doors. Local school board followers learned that earlier this year when the board responded to a parent that it has a right to discuss the superintendent’s progress toward established goals, and to establish new goals, in closed session.

Since Sept. 10, 2019, the board has met with Stacey Larson-Everson in closed session to discuss “superintendent goals and evaluations” about 29 times.

The first hint to the public that the special education report was being discussed by the board in closed session came on March 8 when Wallek said that he and board President Nancy Weinstein were recommending formation of a committee to review what he called the SPED (special education) Report.

Wallek asked for the board to establish a committee of three members to meet with certificated and special ed staff from each school site to develop SPED policy and procedure recommendations for board approval.

But Larson-Everson said the proposed discussion was “a closed session item when it comes to me providing details to you and you providing detailed feedback to me with regard to my evaluation.”

At the March meeting, Wallek’s effort to form the committee failed by a vote of 4-3. In favor were Wallek, Tracy Kelly and Tyler Napier. Voting no were Weinstein, Jeff Kermode, Rick Scott and Jackie Wood.

But Wallek didn’t give up. He asked for an item on the Oct. 11 meeting agenda for the board to approve a request to place the district’s SPED Action Plan on the agenda.

The specific agenda language became an item of contention as it referenced the superintendent’s evaluation, although Wallek said he was referring to a document (the SPED plan) that he said had been sent to board members by email by President Weinstein on Feb. 22, 2022 — a document that he doesn’t believe is covered by any closed session privilege.

Herndon, though, said that his understanding was that the plan was part of the superintendent’s evaluation and “on that basis, it would not be a public document.”

Kelly attempted to make a motion to have the SPED plan on the agenda but Weinstein did not allow it because his motion was not the exact language that had been placed on the agenda. Kelly and Kermode both said they would support a future agenda item that would bring information about the plan into a public setting.

And the superintendent said she would do that.

“I stand ready, willing, open and able to provide the board at the board’s direction with an update on SPED programs and services,” she said.

PAST PROBLEMS

Problems with the district’s special education program were identified in a report sent to the district by the California Department of Education in May 2017.

Susan Andreas-Bervel was the superintendent at the time. The report, labeled a Critical Incident Review, detailed findings from the CDE’s Special Education Division in October 2016. It cited 348 noncompliant student level findings and noted there appeared to be a high turnover rate in the district’s special education department, as well as a shortage of service providers.

Less than a year later, the superintendent resigned — on March 16, 2018 — and in May of that year retired school administrator Paul Kaminski became the interim superintendent. Larson-Everson was chosen as the new superintendent in April 2019 with her appointment effective July 1 of that year.