NEW UPDATE: Closed-Door Schools Mediation Session Cancelled Tuesday

Mediation talks poised to begin Tuesday morning between Bullis Charter School and the Los Altos School Board were abruptly cancelled 90 minutes before the start of the 10 a.m. session.

"We've cancelled the closed session, since there was some question about the Brown Act," said school Superintendent Jeff Baier Tuesday morning, referring to the state open meeting law that governs local bodies.

, who is a new member of the school district's Citizen’s Advisory Committee for Finance (CACF), had written to Richard J. McAdams, the retired judge who was selected as the mediator for the special session. Ivanovic said he objected to the special, closed-door meeting that was announced Monday morning.

Ivanovic had also enjoined Californians Aware, a well-known open-government advocacy organization , to weigh in. That organization's counsel wrote to the district and advised that California Aware could challenge and ask for nullification of any agreement stemming from closed door meetings.

Californians Aware, known as CalAware, advocates, educates—and litigates—in the interest of open government.

Ivanovic said it was too important of an issue to decide behind closed doors. 

"I think the issue is such a big issue and involves so many people, and has such a big impact on the community that any mediation that doesn't involve the community is doomed to failure," Ivanovic said Tuesday morning.

"I also believe it's the law and I ask people to follow the law."

The LASD notice of the closed-door session cited "existing litigation" regarding the current Superior Court case over the 2009-10 facilities offer involving Bullis Charter School and LASD, and "anticipated litigation." The closed session was described as being held "in conjunction with a closed mediation session with Bullis Charter School conducted by Hon. Richard J. McAdams (Ret.)."

Baier said the district acted after Monday night's school board meeting ended, when he saw the California Aware email sent at 6:30 p.m., challenging the closed session. At 8:30 a.m. Tuesday, the administrative assistant for the district sent out the cancellation notice.

Baier said the mediation talks will go on, but with only two representatives of the LASD board. Since there is no quorum, no decisions from such closed-door mediation sessions will be made, he sadi. 

"Before any decision is made, it would be brought back to the full board and there will be opportunity for public input," Baier said. Future closed door mediation sessions do not need to be announced to the public since there is no quorum of the board and no decisions made, he said.

Terry Francke, general counsel for Californians Aware, wrote a letter to Los Altos School Superintendent Jeffrey Baier Monday, cautioning that the planned closed-door sessions would violate the Brown Act, known as the open meetings law. Francke further warned that he would recommend his board of directors move to nullify any agreement reached if full-board sessions were held in secret.

"There is no provision in the Act authorizing a legislative body to meet in closed session to participate in mediation with a legal adversary," Francke wrote.

"The closed session basis specified on the meeting agenda for tomorrow—Conference with legal counsel pursuant to Government Code Section 54956.9—is not authority for such a nonpublic interaction."

Board members meeting in numbers less than a quorum could meet without violating the Brown Act, Francke reminded. 

"Nothing in the Brown Act precludes or is in any manner inconsistent with mediation, if those participating on behalf of the district in a nonpublic process are less than a majority.  But it does preclude a local body or a majority of its members from being present in a closed session to participate in a mediation with representatives of an adverse party, whether or not the majority is present behind closed doors all at the same time or whether shuttled in and out in serial fashion as alleged in Page."

Ivanovic, who was an advocate for mediation—but in the form of binding arbitration—between the two boards, invoked the Brown Act and the Gloria Romero Open Meetings Act in raising his complaint to retired judge McAdams.

McAdams, a retired justice from the Sixth District Court of Appeal, joined the JAMS Resolution Center in San Jose last year, specializes in government/public entities. He served on the state Court of Appeal for six years, and on the Santa Cruz County Superior Court for 26 years.