LASD Letter to Bullis Charter School Threatens Sanctions

November 4, 2013

Bullis Charter School Board of Directors
102 West Portola Avenue Los Altos, CA 94022

Re: Bullis Charter School Violations of Final Offer Conditions

To the Bullis Charter School Board of Directors:

We are writing to (1) give further notice of Bullis Charter School (BCS)’s on-going violations of the terms of the Final Offer, as well as the terms of the Facilities Use Agreement signed between the parties in August 2013, (2) demand that BCS fully cure those violations within 45 days, including providing appropriate remedial relief for its past violations, and (3) invite BCS representatives to participate in an upcoming open session of the District’s Board of Trustees that will evaluate whether BCS’s violations should disqualify it from receiving an offer of facilities for the 2014-15 school year or should result in other appropriate remedies. To that end, the District invites BCS to address the Board of Trustees at its November 12, 2013 meeting, held in the Board room at 7 p.m., 201 Covington Avenue, Los Altos, CA 92024, to respond to the concerns raised in this letter.

Factual Background

As you know, the District must share facilities among more than 5,000 in-District pupils and its facilities allocations also impact residents in the neighborhoods in which those facilities are located. To accommodate the interests of all persons implicated, the District’s April 1, 2013 Final Offer of Facilities for the 2013-2014 school year (“Final Offer”) included specified terms designating the maximum number of pupils that could be housed on the Egan and Blach facilities, certain grade level restrictions on use of the Blach facilities, and specified sharing arrangements.

Terms and Conditions Contained Final Offer:

Pursuant to Cal. Admin. Code tit. 5, § 11969.9(h)(5), the Final Offer contained the following conditions upon BCS’s use of the facilities:

201 Covington Road, Los Altos, CA 94024 650-947-1150 (tel) * 650-947-0118 (fax) Douglas J Smith
President, Board of Trustees dsmith@lasdschools.org

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Page 2

a. Site Maximum Capacity - Blach: The allocation of facilities for BCS at Blach is based on 129 in-District ADA, grades 6-8. Due to site capacity limits, the maximum number of students that BCS may place at Blach at any single time is 146.

b. Site Maximum Capacity – Egan: The allocation of facilities for BCS at Egan is based on 443 in-District ADA, grades K-5. Due to site capacity limits, the maximum number of students that BCS may place at Egan at any single time is 469.

c. Specialized Classroom Teaching Space (Grades 6-8): Use of and access to the following facilities at Blach are limited to BCS’ sixth, seventh and eighth graders: Home Arts and Drama/Chorus Room. The science classroom is restricted to seventh and eighth graders, consistent with District allocation of science classrooms at District schools. The basis for these restrictions is promotion of student safety by limiting access to facilities traditionally used by junior high students to students falling within the appropriate age range for those facilities. These restrictions are consistent with the historical separation of primary grade students and junior-high aged students in District schools, for safety, supervision and programmatic reasons.

d. Specialized Outdoor Teaching Space (Grades 6-8): BCS 6-8 grade students may have access to the shared P.E. facilities (track, field, tennis courts, blacktop, gymnasium and Multi-Purpose Room [P.E. use]) within BCS’s allocated sharing time. BCS’s K-5 students will not have access to the shared P.E. facilities (track, field, tennis courts, blacktop, gymnasium and Multi-Purpose Room [P.E. use]). This access is based on age-appropriate access to those facilities, as is generally replicated in District schools, and avoids having students of disparate age ranges simultaneously sharing physical education space. It is also consistent with Proposition 39’s “reasonable equivalence” requirements since District students in grades K-5 do not have access to middle school facilities.

e. Blach Facilities Limited to Grades 4-8: BCS students in grades K- 3 will not have access to any facilities at Blach. This condition is consistent with the separation of primary and junior high school students in District schools, and is intended to promote student safety, optimal supervision and the grouping of programmatic resources into age- appropriate groups. It is also consistent with Proposition 39’s “reasonable equivalence” requirements since District students in grades K-3 do not have access to middle school facilities.

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f. Start/End times for BCS school day at Blach: BCS must maintain a school day starting at 8:00 a.m. and ending at 4:30 p.m. BCS will also be required to enlist parent volunteers or other personnel to monitor the parking lot at BCS’ facilities at Egan during drop-off and pickup times.

Those Final Offer terms were express assumptions of the environmental review that the District conducted to comply with the California Environmental Quality Act (“CEQA”). To balance the impact on other users of the Egan and Blach school sites and neighbors and to comply with CEQA, it was and is essential and mandatory that BCS comply with those final offer terms, absent a negotiated amendment to the FO and FUA and further CEQA review.

On or about April 5, 2013, BCS gave written notice of its “Intent to Occupy” the facilities set forth in the Final Offer for the 2013-2014, which amounted to its acceptance of the facilities offered in the Final Offer, as well as the terms and conditions contained therein. Inexplicably, however,BCS designed its program for 2013-14 in a manner that violated the site capacity and grade level restrictions in the FO.

In May 2013, BCS filed a lawsuit that challenged the District’s FO under Proposition 39. It moved for judgment, arguing among other things that the District could not impose the FO site capacity, grade level and other terms in the FO. The Santa Clara Superior Court (Hon. Mark Pierce) rejected that motion in its entirety via a June 24, 2013 ruling. Again inexplicably, BCS continued to design a program for 2013-14 that would violate the FO terms.

During the summer of 2013, the District learned that BCS was planning to violate the FO terms and requested that BCS sign a Facilities Use Agreement to confirm BCS’s commitment to honor the terms on which the facilities were offered. After BCS declared that it was not bound by the Final Offer’s terms, the District pointed out that this position legally amounted to a rejection of the final offer—thereby disentitling BCS to any facilities. The District nonetheless reextended its offer of facilities on the FO terms on condition that BCS accept all terms by executing a Facilities Use Agreement.

Facilities Use Agreement:

On or about August 19, 2013, BCS returned a Facilities Use Agreement executed by its Superintendent, Wanny Hersey, that contained as material terms the above-stated conditions.

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BCS’s Violations Of The Facilities Use Agreement And District Offer To Amend Agreement

From day one, BCS violated the FUA in multiple ways, detailed below. Nevertheless, in an attempt to reduce the level of disputes among the parties, the District has offered to amend the FUA in manners requested by BCS in return for litigation peace and cooperative efforts on a long term solution. After a BCS board meeting in which BCS board members declared litigation peace a “nonstarter,” BCS has both declined to respond to the District proposal and continued its ongoing violations of the FUA.

The fully-executed Facilities Use Agreement contains a provision under which the District may provide BCS written notice of BCS’s material default under the Facilities Use Agreement. This letter shall constitute such Notice under Section 11 of the Facilities Use Agreement of BCS’s material default, and a demand to BCS to cure such default within forty five (45) days delivery of this Notice. The Notice of Default is based on the violations set forth below.

BCS’ Violations of the Final Offer and Facilities Use Agreement:

BCS’s violations of the terms contained in the Final Offer include, but are not limited to, the following:

a. Violating the site enrollment limitations at both Blach and Egan. For example, on August 27, 2013, BCS had 159 students at Blach; on September 6, 2013, it had 537 students at Egan; and on October 4, it had 620 students at Egan. Also, BCS on other occasions has housed its entire student body at Egan, in violation of the enrollment limitation at that site.

b. Violating the grade-level restrictions by allowing students younger than Grades 4-8 to use facilities at Blach, and violating the limitation of Specialized Teaching Space (Outdoor and Indoor) to Grades 6-8. In fact, BCS’s October 7, 2013 Board agenda contains an explicit reference to 3rd graders using facilities at Blach.

c. Using an allocated classroom (A3) as a chorus room, creating a distraction for Blach students using the library, which is adjacent to BCS’ classroom A3. The Final Offer did allocate shared used of the Chorus/Drama Room to BCS every morning from 8:00 a.m. – 9:45 a.m., which BCS did not use for its chorus class.

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d. Using the soccer field outside of the times outlined in the Physical Education space sharing schedule attached as Exhibit C of the Final Offer. The District also learned that BCS’ newly-hired P.E. teacher was not advised of the P.E. sharing schedule by BCS administration.

e. Maintaining a school day at Blach commencing at 8:45 a.m. and ending at 2:30 p.m. which causes a conflict with the Blach schedule.

Potential Remedies for BCS’s Violations:

The above record shows unmistakably that BCS has from the start taken the position that it need not comply with the terms on which facilities were offered to it, and it has persisted in that stance unabated even after Judge Pierce rejected BCS’s legal challenges to the conditions contained in the 2013-2014 Final Offer. Many neighbors have advised BCS that it must comply with the FUA terms, yet BCS has responded in a manner that not only admitted its ongoing violations but indicated its intention to keep violating the terms. This is an untenable situation. BCS has no legal basis to flout those conditions, and its refusal to abide by them creates a lawless regime that is unsustainable under any facilities sharing arrangement.

Since BCS has refused to honor the terms that place limitations on BCS, any member of the public or other user of Egan or Blach rationally could question why he or she should honor the terms in the FO that protect BCS’s usage of the space. To cite just one example to illustrate the point, a member of the public could decide to use the Bullis Center for Innovation during BCS school hours under the view that the FO terms that guarantee BCS exclusive use of the space are non-binding since BCS has declined to honor other terms in the FO. This obviously cannot work, so the District must therefore take up the question of what to do about BCS’s material violations of the terms and conditions the Final Offer

That question has at least three components.
First, BCS must cease and desist immediately all violations.

Second, because BCS has foisted impacts improperly on others, remedies and penalties may be appropriate for past violations.

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Third, the District must evaluate whether such brazen and repeated violations of the FO and FUA warrant either disqualifying BCS from facilities in 2014-15 or restricting the facilities that are offered to it.

To address all three points, a full and thorough explanation from BCS of its actions and steps that provide assurances that it will be accountable will be essential at the public hearing devoted to this topic. To ensure that BCS pupils and families are not punished for the violations of the BCS leadership, the District is inclined to incorporate the majority of its remedial actions into the facilities allocation to BCS for 2014-15 (or decision not to allocate it facilities for 2014-15). That way, if BCS leadership continues to take the position that BCS need not abide by the rules that govern all other District public schools, BCS families may take any necessary steps to protect themselves and the BCS leadership can seek other facilities from another provider that is willing to furnish facilities to a user who declares that it will not abide by any stated terms of facilities use.

The District is considering a number of remedies, including but not limited to the following:

a. Pursuit of all available legal remedies in a court of appropriate jurisdiction seeking a declaration that BCS has committed a material violation of the terms and conditions of the Final Offer, has committed a breach and material default of the Facilities Use Agreement, and seeking from the Court all appropriate remedies, monetary and injunctive, for BCS’ violation of law;

b. Adjustment of facilities, furnishings and equipment offered to BCS in response to its Request for Facilities for the 2014-2015 school year, based on BCS’s violation of the 2013-2014 Final Offer and Facilities Use Agreement;

c. Imposition of enforcement measures, including but not limited to a requirement that BCS certify under penalty of perjury that it is complying with the terms and conditions of the Final Offer and Facilities Use Agreement, including but not limited to the site enrollment limitations and grade level restrictions on the use of Specialized Teaching Space at Blach.

d. Any other remedy deemed appropriate under the law.

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However, before the District enforces its available remedies, it would like to provide BCS an opportunity to respond to the District’s concerns that BCS is not complying with the conditions set forth in the Final Offer, as well as the Facilities Use Agreement. We also remind BCS that this letter also constitutes a Notice of Default based upon Section 11 of the fully executed Facilities Use Agreement, along with a directive to cure the above-listed violations within forty five (45) days, or no later than December 17, 2013.

Therefore, the District asks that BCS address the specific steps that it has taken, and intends to take, to ensure that no future violations occur. The District will use BCS’ response to determine whether it will pursue available remedies to enforce the terms of its Final Offer and the Facilities Use Agreement.

Very truly yours,

Douglas J. Smith
President, Board of Trustees

cc: Jeffery Baier, Los Altos School District Santa Clara County Board of Education