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May 17, 2007

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CUSD's Benecke Violates Brown Act...Again

The following is a text of the formal complaint filed by the CUSD Recall Committee against Trustee Shelia Benecke and CUSD:

CUSD RECALL COMMITTEE
28202 Cabot Road, Suite 630
Laguna Niguel, CA 92677
Phone: (949) 459-1220
Email: cusdrecall@yahoo.com


May 14, 2007


Via Email

Honorable Sheila J. Benecke, President
Board of Trustees
Capistrano Unified School District
33122 Valle Road
San Juan Capistrano, California 92675

Re: Brown Act Violation Committed During May 7, 2007 Board Meeting


Dear President Benecke:

This letter is to file a formal complaint against you and the Capistrano Unified School District for actions that you took during the open session of last Monday’s Board Meeting (May 7th) in violation of the Brown Act and other applicable laws. For the reasons set forth herein, we call upon you to: (a) step down as the acting President of the Board, (b) immediately issue a formal written public apology for your actions, (c) immediately confirm that each of the agenda items that you wrongfully prohibited the Board from taking action on at last Monday night’s meeting will be agendized for the next CUSD Board of Trustees meeting, (d) ensure that CUSD cause a qualified attorney to be present during all school board meetings to ensure compliance with all applicable laws, and (e) tape the Board meetings to provide an accurate record for later review by the public and law enforcement and other agencies.

Background.

Over the past several years, the Capistrano Unified School District has found itself in the midst of several scandals that have embarrassed the district and distracted district personnel from their mission to educate the students of this school district.

As of this date, the Orange County District Attorney and Grand Jury are still in the process of completing a criminal investigation of this school district. Members of the Board of Trustees and senior staff members have been called to testify in these proceedings.

On December 28, 2006, an investigative report was issued by Stuart T. Waldrip that looked into a number of suspect relationships between the school district and third parties related to members of the CUSD leadership. Judge Waldrip documented several instances of what he termed “a lack of good judgment in various degrees by some District persons.” Judge Waldrip also called for “remedial efforts on the part of the District to minimize such matters in the future.”

As a result of these continuing abuses by the leadership at CUSD, in March of this year, Trustee Ellen Addonizio, one of the newly-elected reform Trustees submitted an agenda item calling for the Board of Trustees to adopt a very clear anti-nepotism and conflict of interest policy. In addition, the three newly-elected trustees had for months been demanding that CUSD adopt strict policies relating to compliance with proper competitive bidding practices, self-dealing through the hiring and placement of relatives within CUSD and at companies that do business with CUSD, proper procedures for purchasing and the proper use of school district vehicles.

The newly elected reform trustees proposed these policies for the express purpose of stopping many of the well-documented abuses, and closing many of the loopholes, that the CUSD leadership had been taking advantage of for so many years.

At last Monday’s Board meeting, you once again improperly and illegally took actions that were obviously intended to hinder, delay and frustrate the efforts of the newly elected trustees from bringing badly needed reform to CUSD.

Although the three reform trustees had been calling for these agenda items for months, and although Trustee Addonizio first submitted her agenda item in March, these items were not even placed upon the official Board agenda as an action item until this past Monday’s meeting. They appeared as the following Agenda Items:

58. BOARD POLICY REVISION:
First reading, revisions to Board Policy 9270, Conflict of Interest.

59. BOARD POLICY REVISION:
First reading, revisions to Board Policy 4221.8, 4212.8, and 4312.8, Hiring and Placement of Relatives.

60. BOARD POLICY REVISION:
First reading, proposed revisions to Board Policy 3310, Purchasing Procedures.

61. BOARD POLICY REVISION:
First reading, proposed revisions to Board Policy 3311, Bids.

62. PROPOSED BOARD POLICY:
First reading, proposed Board Policy, Use of District Vehicles.


Refusal to Call and Take Action on Agendized Items Violated the Brown Act.

The aforementioned Agenda items were duly agendized and, as such, the CUSD Board of Trustees had a legal obligation to take action on those items. This did not occur. These items were not continued, taken off calendar or decided.

Instead, you wrongfully and prematurely adjourned the public meeting without first causing the Board to take action on the above-referenced agenda items and without providing the public their legal right to provide their comments to the Board -- all in violation of the Brown Act and other applicable laws.

(a) The Brown Act Violation Was Intentional. Members of the public (who had waited for hours to address the board on these topics) immediately brought this violation to the attention of the Board. In fact, one member of the public did so to Trustee Bryson (who was still sitting at the dais, immediately next to you) while the entire Board was still present. This person demanded the Board properly address the agendized matters and that failure to do so would constitute a violation of the law. Trustee Bryson immediately agreed and noted that the other Trustees were still present and proposed to you that the Board immediately discuss and take action on these agenda items.

You refused. You stood up and walked right behind Trustee Bryson’s chair and abruptly responded, “No.” This demonstrates that you were aware of the issue and intended to ignore it. Multiple people witnessed that conversation (and your response).

(b) The Brown Act Violation Appears Designed to Protect Trustee Draper. Everyone present last Monday witnessed Trustee Draper humiliate herself as she tried to defend her conflict of interest and nepotism relating to her participation in a vote on the Hankey School Environmental Impact Report – a report prepared by her daughter, Shawna Schaffner, the C.E.O. of Culbertson Adams & Associates (CUSD’s primary environmental consultant).

During public comment, Trustee Draper was roundly criticized for the obvious and unacceptable conflict and nepotism – and she was reminded that the Waldrip Report also criticized her for voting on matters where her daughter was before the Board. She was told during public comment that she must recuse herself, get off the dias and not vote on any matter where her daughter (the CEO of Culbertson) and her company were before the Board.

So, what did she do? She refused to leave, she argued as an advocate for her daughter’s EIR and she voted to certify the EIR. What she said in her defense was the most amazing part of the evening. She said, something to this effect,

"Stop picking on me. The Waldrip Report said I didn't have a technical, legal conflict of interest, it just said that if I vote...it smells."

She really said this and acted like everything was ok -- despite the stench and obvious appearance of impropriety.

Although Draper apologized to the public and promised to change her ways after the Waldrip Report was made public, her actions now clearly demonstrate she doesn't get it. Nothing has changed. She hasn't learned a thing, despite the original recall, despite the alarming revelations and recommendations contained in the Waldrip report, despite the criminal investigation and raid of the district headquarters, and despite being dragged in front of the grand jury and forced to testify for three days about all the corruption she's allowed for years.

We can understand that after Trustee Draper’s embarrassing performance during the Hankey EIR agenda item, the last thing any of the Fleming-era trustees wanted to do was to hold a public hearing on reform agenda items calling for tough new Board policies relating to nepotism and conflicts of interest – but you had a legal obligation to do so.

From your constituent’s viewpoint, after witnessing Trustee Draper’s embarrassing and alarming performance during the Hankey EIR item, the need for tough new Board policies on nepotism and conflicts of interest was obvious and there was no better time to address those items to the Board.

Neither the lateness of the hour nor a desire to prevent further embarrassment to Trustee Draper or the other Fleming-era trustees can justify such intentional and illegal behavior -- especially by a seasoned Board member with more than 15 years of experience who clearly was aware of the issue and who had just completed a court required training session on Brown Act violations.

(c) Your Actions Were Unfair and Denied Audience Members Their Legal Rights. Several members of the public had waited hours – until midnight -- to listen and to address the board on these agenda items. Your unilateral decision to simply “skip” these agendized items was rude and insensitive to them. It also denied them their legal right to provide public comment to the Board on all agendized items in violation of Government Code Section 54954.3.

(d) Your Timing Was Suspect. We observed that you cleverly, quickly and unilaterally announced you were going to skip over the agendized items just after Trustee Addonizio (the Trustee who requested the items be placed on the agenda), had left the room for a comfort break, giving her no reasonable opportunity to respond or vote on the matter.

(e) You Need More Brown Act Training. We note that within the last week you were required to attend a training session on Brown Act violations. You were required to do so as a condition to the settlement of the lawsuit successfully brought by one of your constituents to compel the CUSD Board of Trustees to comply with the Brown Act. Obviously, this training session was not sufficient. We find it absolutely incredible that you committed such a flagrant and intentional violation of the law at the first Board meeting after you completed the required training session on the Brown Act.

Like the Draper/nepotism example described above -- this entire situation smells.

These continuing violations are extremely troubling given the pending criminal investigation by the Orange County District Attorney and Grand Jury against the CUSD leadership and the alarming findings and recommendations contained in the Waldrip investigative report – not to mention the embarrassing scandal involving the Board’s violation of the Brown Act last summer.

In fact, last summer Terry Francke, general counsel for Californians Aware and one of the State’s foremost experts on open-meetings laws urged the district attorney to file charges against the CUSD leadership for what he described as "…the worst example of a Brown Act violation in closed session I have ever seen in 25 years."

The District Attorney hasn’t filed criminal charges…yet.

It is unacceptable for you and other three Fleming-era Trustees to continue to operate this district in violation of the law – the people will not tolerate the “smell.” This culture of corruption and incompetence must end. After residents signed recall petitions calling for your removal more than 177,000 times and three new reform trustees were elected in landslide victories last November, we had hoped the Fleming-era majority on this Board would finally get the message -- but that obviously didn’t happen.

The fact that you continue to violate California law as you purport to carry out the people’s business suggests you are either unwilling to comply with law, or unable to understand it’s clear requirements. In either case, the facts clearly demonstrate that you are not fit to serve as the President of the CUSD Board of Trustees.

Therefore, for the reasons set forth herein, we call upon you to: (a) step down as the acting President of the Board, (b) immediately issue a formal written public apology for your actions, (c) immediately confirm that each of the agenda items that you prohibited the Board from taking action on at last Monday night’s meeting will be agendized for the next CUSD Board of Trustees meeting, (d) ensure that CUSD cause a qualified attorney to be present during all school board meetings to ensure future compliance with all applicable laws, and (e) tape all CUSD Board meetings to provide an accurate record for later review by the public and law enforcement and other agencies.

Sincerely,

/s/ Thomas K. Russell

Thomas K. Russell
Spokesperson
CUSD Recall Committee

Still don't get it

CUSD's recent "independent" investigation was a sham and their continuing delay tactics are designed to resist any meaningful reform, It's nice to see that the recall folks are still aggressively cutting through all of the district's nonesense and pushing for reform. These latest violations demonstrate, once again, that the veteran CUSD trustees still don't get it. Hopefully, the Recall Committee will lead the way again to finish the job of removing Sheila Benecke, Marlene Draper and the other Fleming-era trustees (Mike Darnold and Duane Stiff) sooner, rather than later. The corruption at CUSD will not end until these status quo-defending, reform obstructionists are removed from office and held accountable for what they've done. Then real reforms can be accomplished, while they are duly forgotten.

Draper fails smell test

I couldn't believe that at the May 7th CUSD Board meeting Marlene Draper actually tried to defend the long-standing conflict of interest and nepotism arisig from the district's hiring of Draper's daughter as its environmental consultant by referencing the Waldrip report and saying her voting on the matter was not "technically illegal" -- "it just smelled." So according to Draper, if it smells, that's good enough for CUSD. Glad to see Draper has put the district's bar for propriety so high.

After all of the scandals that have plagued this district over the past few years, and especially the recommendations in the Waldrip report directed specifically at her (to avoid even the appearance of impropriety), it's clear that Draper is still clueless. No wonder this district is viewed with disdain by so many constituents who simply want decent, honest leaders. Draper really topped herself this time. What a disgrace.

Say whatever it takes

Draper and the other Fleming Trustees have proven time after time that they will say and do virtually anything, even ignore or violate the law, to force their favored projects down our throats whether they're equitably, financially or legally sound or not. San Juan Hills High School, Arroyo Vista K-8 and the Education Center are prime examples of how far they will go to put the interests of staff and themselves ahead of the true interests of the kids and the taxpayers -- more interested in Fleming's legacy/beauty projects, even if they drive the district into virtual bankruptcy. They (Benecke, Darnold, Draper and Stiff) should all be recalled so they can join their former colleagues (Casabianca, Henness and Kochendorfer) and their other buddies (Fleming, Doomey, Crawford) in the hall of shame.

View From the Top

Despite being forced to attend Brown Act training only 4 days earlier as a result of CUSD’s lawsuit settlement with Ron Lackey for previous Brown Act violations, it’s obvious that Benecke (a 15+ year veteran of the Board) couldn’t figure out what a Brown Act violation is if it were spelled out in writing, taped to her forehead and she was looking in a mirror.

Draper has certainly gained front runner status for the Golden LaBonic’s Award for the best foot-in-mouth comment of the year. Her comment about her own situation involving CUSD doing business with her daughter’s company, “While it may not be illegal, it just smells” ranks up there with some of the great moments provided to us by the award’s namesake at the Republican Central Committee meetings during the 2006 election. Even the new superintendent couldn’t help but put his hands in his face and shake his head at that one.

Superintendent Smith, welcome to the zoo my friend … to the show that never ends. I hear the Placentia-Yorba Linda school district is looking for a new superintendent, it might not be too late to apply.

Who needs the Desperate Housewives of Orange County when we have four Fleming-era trustees providing this kind of entertainment? Someone needs to start taping these meetings, at any given moment we’re likely to see a CUSD staff member lie and mislead the public or see a real life elected official violate the law or have a melt down.

As Trustee Darnold likes to say, “I’ll second that Marlene,” whatever you want.

Still don’t get it

CUSD’s recent “independent” Judge Waldrip investigation was a sham and their continuing delay tactics are designed to resist any meaningful reform. It’s nice to see that the recall folks are still aggressively cutting through all of the district’s nonsense and pushing for reform. These latest violations demonstrate, once again, that the veteran CUSD trustees still don’t get it. Hopefully, the Recall Committee will lead the way again to finish the job by removing Sheila Benecke, Marlene Draper and the other Fleming-era trustees (Mike Darnold and Duane Stiff) sooner, rather than later. The corruption and incompetence of the CUSD leadership will not end until these status quo-defending, reform obstructionists are removed from office and held accountable for the illegal and unethical things they’ve done. Then real reform can begin, while they are duly forgotten.

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