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Officials at the Dublin Unified School District held a special meeting last week with the goal of addressing criticism and exploring options in the wake of publicized written conversations involving three trustees and some still calling for an external investigation into the matter.
The legal opinion from DUSD attorney Harold Freiman concluding that no Brown Act violations occurred was the result of an internal probe into text and email conversations between resident Bill Carey, as well as other members of the public, who were encouraging the three trustees to cast a majority vote for controversial new trustee area boundaries in the district.
Trustees William Kuo and Gabi Blackman, along with Board President Dan Cherrier, voted in favor of Scenario 1 in February, in which their fellow trustees, Kristin Pelham and Megan Rouse, are pushed into the same trustee area. Pelham and Rouse instead advocated and voted for Scenario 4, which would have kept their residence areas separated.
The three-trustee majority who voted in favor of Scenario 1 all denied wrongdoing before and during the July 12 meeting.
They fired back at calls for their resignation, based on Freiman's argument that their ongoing text message conversations with several residents — sometimes during board meetings — did not violate the Brown Act, as some had alleged in public comments at their previous meeting.
The terms of Kuo, Cherrier and Rouse are all up at the end of this year, with their seats on the table under the new area boundaries in November.
The issue first returned to the public eye roughly four months after the vote, when Mary Washington, a parent and employee of the district, publicized the results of a California Public Records Act request she'd filed with the district the day after the Feb. 22 vote. The findings resulted in numerous public comments at the board's last regular meeting on June 28, and the return of the topic at last week's special meeting.
"What we looked at here is: Did we have three board members who were discussing redistricting in effect either directly with each other or indirectly through a conduit with each other, and we did not find evidence of the closing of that loop," Freiman said at the July 12 meeting.
"So then the next thing we looked at was … board members communicating with members of the public, potentially at board meetings," he continued. "Texts typically are what one would see. And there are some texts that do appear to have taken place during board meetings, with members of the board who are speaking to members of the public at least it appears to us that that took place."
Despite acknowledging that the records contain strong evidence that trustees were sending text messages during the public hearings on the boundary adjustment process, Freiman noted that "the Brown Act is silent on this issue."
"It does not say that a board member is prohibited from communicating with a member of the public at any given time, including in a board meeting," Freiman said. "We typically don't recommend such communications during board meetings because it can distract the board from listening to the other speakers and what the other board members have to say, but again is that a Brown Act violation? Is that a violation of the actual government code provisions? And there is no government code provision, and there is no case law that we've been able to find that addresses that specific issue, nor is there an attorney general that addresses that specific issue."
The exception, he said, was case law involving public hearing in which a governing body is receiving evidence, in which it could be a denial of due process to someone if a body's decision was predetermined.
However, he noted that this is specific to situations in which someone has applied for something, with the body making a decision about it, in contrast with a legislative decision. The issue of trustee area boundaries would fall in the latter category, he said.
"Even if there was evidence of communications with the public, even potentially during a board meeting, and even to the extent there may have been decision making taking place with individual board members before the completion of the discussion, or the completion of the item, there was no denial of due process because there was no due process of the applicant," Freiman said.
However, Freiman concluded the letter he'd prepared for that night's meeting by noting that despite finding no legal violations of the Brown Act, the board might consider policy changes to address some of the issues brought up by the released conversations.
During public comment on the item, numerous speakers said that regardless of any legal violations, the released conversations pointed to ethical and policy concerns.
"How do Dublin educators encourage our students to not cheat, to be honest about their actions, not send text messages during class, when clearly you text constituents during your work here as elected officials?" asked Denise Saylor, co-president of the Dublin Teachers Association, during a public comment.
Saylor said that despite her disappointment in the board, she and other educators would continue their work to empower and instill strong values in Dublin students.
"We remind our students that their voices matter, that they count, and that education is critical," Saylor said. "Three of you just made our jobs harder as students hear and read about your actions and comments and ask 'why care?' when our school elected officials do not."
Saylor, along with other speakers that night, called for an independent investigation of the board, arguing that Freiman's role as the district's legal counsel is to defend the district against legal liability, rather than protect the interests of voters. Ahead of the meeting, a petition sponsored by DTA and calling for an independent investigation had garnered more than 400 signatures.
"A request for an independent investigation is not bullying or pitting one side against the other," Saylor said. "It creates transparency and an open dialogue which is in the best interest of all Dublin students. Do not stand on 'we did not break the rule.' Stand on character, honesty, transparency, and integrity."
Amy Miller, who left the DUSD board in 2020, with Pelham elected to her seat, spoke to her former colleagues in a public comment.
"All I'm going to say is that if you didn't violate the law, you came really close, and you got a 'get out of jail free' card on this one," Miller said. "And I think you should use it. I think it's time for you to look at this community, not the 10 constituents that you represent, because I could name them. I could name the 10 people."
In particular, Miller called on Cherrier to listen to the concerns of constituents throughout the district, and put an end to the behind-the-scenes exchanges that she said had brought them to this point.
"I've served with you, Dan," Miller said. "I know you have a heart in there. I know you care. And I know you serve because you care about services. You've been on the other side of a board in your professional career, and now you're on this side, and I would just ask you to stop abusing your power, and start listening to the community as a whole. Not your 10 friends, but the community as a whole and to stop collaborating with your trustees to get everything you want."
A majority of the public comments centered on sustained criticism of Cherrier, Kuo and Blackman's apparent discussions with and influence by Carey during the process of redrawing trustee area boundaries that were adopted earlier this year. Others, however, were critical of the district employees and teachers leading the outcry against the three trustees.
"We are a country, state, and city of laws and proper procedures and processes," said Shirley Lewandowski. "The school redistricting determination officially followed all of the proper procedures and processes and was then legally voted and approved by the board of trustees months ago and is final and official."
"All the unnecessary noise by those who won't accept what has been legally voted on with regards to the school redistricting has done an injustice to the welfare of Dublin students concerned parents and residents," Lewandowski continued. "They have distracted away valuable time from the trustees to do their jobs on behalf of the students and schools and addressing much more important political issues than this."
While she didn't speak to allegations apart from the Brown Act, Blackman said she hoped Freiman's opinion and that night's meeting would lead to reflection from speakers at the June 28 meeting who had accused the board of Brown Act violations.
"I would hope we would take this moment to do a bit of self-reflection of when we use freedom of speech to actually lob allegations against innocent people," Blackman said. "I think we should all learn from this lesson."
Cherrier, too, was critical of the outpouring of concerns raised at the previous meeting and that night, particularly on the part of district employees and his own constituents in Trustee Area 5.
"I think many of the people that spoke did so based on the opinion of others," Cherrier continued. "To be a great leader, one should do their own research on the issue and make up your own mind, not just follow others. Many of you we are trusting to help shape our youth into becoming outstanding citizens. What kind of example are you setting when you blindly throw out accusations when you've not researched the law and not personally and fully read the Brown Act?"
Cherrier added that what he saw as the divisiveness caused by district employees and teachers had led him to initially decide not to run for re-election. However, he said that further reflection made him concerned that a qualified candidate wouldn't emerge to replace him.
"Unfortunately, recent actions by some of the speakers at our last meeting showed many people in Area 5 that when you run for office you're subject to being attacked by the very people that you're trying to lead and help," Cherrier said. "I am very worried that quality candidates might not come forward after the last meeting, so I am announcing my candidacy for the upcoming Area 5 election. Those who seek to divide this town and this board further have only succeeded in convincing me that my job is not done here."
However, Pelham, who is ineligible to run for re-election under the map adopted in February when her term is up in 2024 (unless she relocates her personal residence), said that the conversations would have lasting impacts on voters' trust.
"I know a lot of comments have been made that I'm just trying to hold onto my seat," Pelham said. "I ran for election in the middle of a pandemic. I put myself out there. And this is what happened. People worked behind the scenes to push me out."
"And I did not fight it," Pelham continued. "I made the arguments at those meetings. But it's very clear in those texts that people were trying to push me out. And that's not fair to the voters of the west side who voted myself and Trustee Rouse … you have now alienated half this city. So if you expect any sort of future bond measures or anything, you need to do something to rebuild trust with the rest of this city. Because half of the voters in the city live on the west side, and they have specifically had their representation limited."
Pelham added that if four trustees were to agree, it would be possible to hold a re-vote on the maps. However, she said that she wasn't anticipating the board being able to reach that majority vote.
"I specifically said I would not vote for a map that got rid of any of you," Pelham added.
Pelham said that "something had changed" prior to the third public hearing on boundary adjustments in which the vote had occurred, and expressed concerns about public comments that had been sent only to Kuo, Blackman and Cherrier during the process.
"How can you claim that you want the best for this district and this city if you are only choosing to email three people that you feel will be favorable to you?" Pelham asked.
Kuo responded that while he did not give opinions for the first couple of meetings, but that he liked map 1, which he'd kept to himself. He said he'd gone on to crunch the numbers ahead of the February vote, which had been what finalized his decision.
"I was not decided until the Monday prior to the Tuesday vote," Kuo said. "So for those that said I was complicit or disquiet, I say no, I already had my mind pretty made up when the map first came out. But I gave it some thought when it was evident it was down to two maps. I wasn't going to do analysis of all 5 maps — that's a lot of numbers to crunch. And that's all the California Records Act, my response. Folks can read it for themselves and decide whether they want to believe or not. But for me, I have a clear conscience. I voted for map 1 based on my reasoning outlined in that email."
Rouse said that while she accepted Freiman's legal opinion, this did not amount to condoning the correspondences during the trustee area boundary adjustments.
"This incident demonstrates that we are in danger of factionazation, which is happening all too much in our society, and perhaps on this board, and we need to resist that," Rouse said. "While the written evidence may not show a violation of the Brown Act as a technical legal matter … that doesn't make it right. and getting right up to the edge is not a good enough standard. It is not where our board should operate. This is not the standard we should be modeling and teaching our students. We owe it to our students and our community and each other, frankly, to behave better and to hold ourselves to a higher ethical standard."
Despite her disappointment in the conversations unearthed in the public records, Rouse said the board should take the opportunity to make policy changes that prevent such behavior in the future. In particular, she recommended a push to prohibit electronic communications during board meetings come back to the board as an agenda item at a later meeting.
"I am disappointed," Rouse said. "I think I said it before — I'm queasy. And I'm sad. And I'm frustrated. I think there are some things we can do to rebuild the trust. I think we can do better as a board."
While she joined Pelham in encouraging that the board reconsider the vote on trustee area maps, Rouse also said she was not optimistic about the support from the three-trustee majority who'd voted for Scenario 1.
Rouse also encouraged the district to begin publishing the results of public records act requests publicly on the website, pointing to other districts and organizations that do this. While Superintendent Chris Funk noted that this was an administrative matter his office would handle at the board's direction, Cherrier and Blackman said they wanted it to come to the board as an agenda item before proceeding. Funk said he would consider how to move forward.
The DUSD Board of Trustees' next regular meeting is scheduled for Aug. 9.
Editor's note: A prior version of this story misidentified the DUSD legal counsel. Attorney Harold Freiman serves as legal counsel for the district under the contract with Lozano Smith. Embarcadero Media regrets the error.
