Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Ct. No. 1270367, Arthur A. Garcia, Judge
Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez, Robert A. Bartosh, Paul D. Powers for Plaintiff and Appellant.
Hall, Hieatt & Connely, LLP, Clayton U. Hall, Molly E. Thurmond for Defendant and Respondent.
GILBERT, P.J.
Norman Clevenger appeals a judgment after the trial court denied his petition for writ of mandate against the Board of Education of the Santa Ynez Valley Union High School District (Board). The Board first held an open hearing and then met in a closed session and decided not to renew Clevenger's contract as a high school principal. Clevenger contends the Board may have considered evidence of complaints about him in the closed session.
We conclude, among other things, that 1) the trial court correctly ruled that Clevenger did not prove a Brown Act (Gov. Code, §§ 54950, 54957) violation, 2) the court did not err by issuing a protective order preventing Clevenger from deposing Board members about what they considered in their closed session, 3) Clevenger had the burden of proof, and 4) there was a failure of proof at the trial of his mandamus action. We affirm.
All statutory references are to the Government Code unless otherwise stated.
FACTS
Clevenger was employed by the Santa Ynez Valley Union High School District (District) as a high school principal from 1999 to 2008. His employment contract with the District had to be renewed and approved by the District each year.
On February 14, 2008, District Superintendent Fred Van Leuven served Clevenger with a notice that the "Board... is scheduled to consider complaints or charges against [Clevenger] at its next scheduled meeting of February 19, 2008...." Van Leuven advised Clevenger that he had "the right to have the charges considered by the Board in an open public session, rather than a closed session."
On February 15, 2008, Clevenger responded to this notice with a letter and a request to have an open session.
On February 16th, Van Leuven responded with a letter clarifying what the Board would be considering at the meeting. He said, "The Board... will not be considering any disciplinary action against you on Tuesday night." He stated that the Board "is not considering any claims of misconduct or wrongdoing," (Italics added.) Van Leuven indicated that the only issue for Board action would be whether to renew Clevenger's contract as a principal. He advised Clevenger that he would be recommending "that [the Board] release [Clevenger]" from the contract. In closing, he said, "[I]f you still want to have the Board consider the recommendation to release you as principal heard in open session, please let my office know."
On February 19th, Clevenger attended the Board meeting and he addressed the Board in an open session. Several members of the public also made presentations. In a declaration filed in the trial court, Clevenger said, "All of these comments were of a positive nature."
Superintendent Van Leuven also addressed the Board at the beginning of the open session. He said, "Agenda Item 13b was a closed session item to determine if the board should renew Mr. Clevenger's principal contract for the 2008-09 school year. This is the only decision before the Board, We offered Mr. Clevenger the opportunity to address the board in closed session, but [he] has requested that the agenda item be heard in public.... [¶]... [¶] Last year Mr. Clevenger was granted a one year contract extension. His current principal's contract ends June 30, 2008. The board will need to take action prior to March 15th whether or not to renew his contract... As a certificated employee he has also earned tenure rights as a teacher, so if the board does not renew his principal contract he will still be a certificated employee, and would be placed in a certificated position based on his teaching credentials...." (Italics added.)
Van Leuven also made a negative recommendation to the Board about the renewal of the contract. He said, "Clevenger will be allowed to address the board, if he wishes to do so, to urge the board to renew his contract as principal.... [¶]... [¶] It is my recommendation, as Superintendent, that the board not renew Mr. Clevenger's principal contract for the 2008-09 school year, as I have lost confidence in his leadership andrepresentation of the school district." (Italics added.) Van Leuven stated, "When public input is complete, the board will take this matter under advisement into closed session to deliberate. The Board will report out its action in open session."
Following this open session, the Board met in a closed session for two hours to consider Clevenger's contract and other unrelated matters. There is no transcript or recording of this session.
When the Board reconvened in open session, it announced that it had decided not to renew Clevenger's contract as a principal, but he would be reassigned as a "certificated employee" for the 2008/2009 school year.
Clevenger filed a petition for writ of mandate against the Board. He alleged that the Board violated the Brown Act because it "discussed specific complaints and charges against him in closed session." The Board filed an answer denying these allegations.
Clevenger wanted to take the depositions of Board members regarding the Board's closed session. The Board objected claiming that "[c]losed session discussions are confidential."
On October 14, 2009, the trial court issued a protective order stating that "the parties are prohibited from taking the deposition of any person about events in closed session of the Board of Education of the Santa Ynez Valley Union High School District."
At a hearing on his mandamus action, Clevenger's counsel argued that the Board had the burden to show that it had not considered complaints and charges against Clevenger in its closed session. Clevenger did not testify or call witnesses.
The trial court found that Clevenger did not meet his burden of proof to establish a Brown Act violation. It noted that Van Leuven's February 16th letter confirmed that the Board was not considering "accusations of misconduct." It found that "the Board was deciding whether or not to renew his contract as principal for the upcoming year" and that is a matter properly considered in a closed session.
DISCUSSION
Brown Act Compliance-Open and Closed Sessions, Notice and Agenda
Clevenger contends: 1) the Board did not comply with the Brown Act because it did not provide him a proper hearing, 2) its notices did not sufficiently indicate whether the Board would be considering charges and complaints against him, 3) the agenda did not properly describe what the Board would consider in its closed deliberation session, and 4) the trial court erred by not allowing him to depose Board members about whether they considered charges and complaints about him in their closed deliberation session.
The Board responds that Clevenger was only entitled to a closed session under the Brown Act because the only issue was whether to renew his contract. Out of an abundance of caution, it provided him with an open session. Its notice was adequate. Substantial evidence supports the trial court's finding that the Board was not considering any charges or complaints against him. The Board's closed deliberation sessions are not subject to disclosure in discovery, except in limited circumstances, which are not applicable here. The Board is correct.
"'The Brown Act [§ 54950] was adopted to ensure the public's right to attend the meetings of public agencies.'" (Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 331.) It requires these agencies to "hold their meetings open to the public except as expressly authorized by the Act." (Ibid.)
But closed sessions are authorized "to consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee or to hear complaints or charges brought against the employee by another person or employee unless the employee requests a public session." (§ 54957, subd. (b)(1).) Where specific charges or complaints are made against a public employee, the employee has the option of contesting them in an open session. (Id., subd. (b)(2); Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 96.) Consequently, a board may not hear charges and complaints against an employee in a closed session where the employee has requested the right to contest them in an open session.
Under the Brown Act, employees must be given advance notice if the board will be considering charges or complaints of misconduct against them. (Moreno v. City of King (2005) 127 Cal.App.4th 17, 28.) Whether the board hears the employee's evidence in an open or closed session, it may reconvene in a confidential closed deliberation session before it makes its decision.
The Board correctly notes that its decision not to renew Clevenger's contract is a determination under the Brown Act made in a closed session. (Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 883-884.) But, out of an abundance of caution, it granted Clevenger's request to have an open session, even though it was not required to provide one. An open session is required only when the employee requests one, and the Board "hears specific complaints or charges brought against the employee." (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 96.) Van Leuven had a negative opinion of Clevenger's leadership abilities and recommended that his contract not be renewed, but he presented no charges or complaints against him. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 683 [negative comments "do not constitute 'complaints or charges'"].)
Clevenger claims the February 14th and 16th letters were ambiguous about whether charges would be considered. But the February 16th letter unequivocally states that they would not be considered. The Board acted within its authority by issuing the February 16th letter to correct the prior letter and to unequivocally clarify the limited issue it would consider at the meeting. (§ 54960.1, subd. (a); Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 824; Ryan v. Byram (1935) 4 Cal.2d 596, 607.) No reasonable person would be confused by the content of the February 16th letter. Moreover, at trial, Clevenger presented no evidence that he objected to these notices in the open session or that he told the Board that he was confused about the issue to be decided. Any alleged irregularities worked to his advantage as he received more than he was entitled to under the Brown Act. Therefore, he was not prejudiced. (Winter v. Gnaizda (1979) 90 Cal.App.3d 750, 754.) At the open session, he and his supporters had the opportunity to challenge Van Leuven's recommendation not to renew the contract.
Clevenger notes that in describing the closed deliberation session, the Board, in its agenda, used the phrase "Discipline/Dismissal/Release of Public Employee." He claims this violated the Brown Act because if the Board was considering the non-renewal of a contract, it should have utilized the phrase "public employee performance evaluation." (§ 54954.5.) We disagree. The term "release" is accurate because Clevenger was released from his contract. (Watkins v. County of Alameda (2009) 177 Cal.App.4th 320, 336.) Moreover, section 54954.5 authorized the Board to use the statutory phrase "discipline/dismissal/release" to describe a personnel decision involving the non-renewal of a contract. (Furtado v. Sierra Community College, supra, 68 Cal.App.4th at p. 883.) Consequently, the use of that phrase does not mean that the Board considered complaints or charges against him in the closed session. (Ibid.)
The trial court's finding that the Board never considered "any specific charge or complaint in contravention of the Brown Act" is supported by the record. The February 16th letter described the limited scope of the Board hearing on the renewal of contract issue. In the open session, Van Leuven said that "the only decision before the Board" was whether to renew the contract, and that Clevenger was offered "the opportunity to address the Board in closed session, " which he rejected. (Italics added.) The Board's adopted minutes reflect that the only action it took after the closed deliberation session was to decide not to renew Clevenger's contract. There is nothing in those minutes to suggest that the Board heard complaints or charges in the closed deliberation session.
Clevenger speculates the Board must have considered complaints or charges against him in the closed deliberation session because there were none in the open session, but during the open session Van Leuven announced that the Board would go "into closed session to deliberate," (Italics added.) A deliberation session is not a forum to take evidence. Clevenger apparently assumes the decision not to renew his contract necessarily required consideration of evidence of complaints or charges against him. But performance evaluations are routinely considered by boards in closed sessions without consideration of any "specific complaints." (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at pp. 100, 102.)
A board decision not to renew a contract based on an evaluation of the employee's job performance is "separate and distinct" from a decision to fire the employee based on complaints of misconduct. (Furtado v. Sierra Community College, supra, 68 Cal.App.4th at p. 882; see also Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 102 ["We do not find that mere consideration of reasons for nonreelection constitutes hearing specific complaints or charges against an employee by another person or employee"].) "[E]valuation of performance" decisions may be made in a closed session consistent with the Brown Act. (Ibid.)
The Board suggests that Clevenger was unable to show that it made any performance evaluation or considered complaints against him in the closed deliberation session for an obvious reason. The only decision before it was whether to renew a principal's contract, a matter within the Board's discretion. (McFall v. Madera Unified School Dist. (1990) 222 Cal.App.3d 1228, 1235.) "'[A] Board is free to transfer an administrator without cause or evaluation, for any reason satisfactory to the appointing authority, including personality conflicts or differences in views on leadership styles,'" (Ibid., italics added.) A principal, unlike other school employees, "serves at the pleasure" of the Board. (Quirk v. Board ofEducation (1988) 199 Cal.App.3d 729, 735.) The trial court could reasonably infer that the Board relied on the fact that Van Leuven had lost faith in Clevenger's leadership abilities, the issue he raised in the open session. Clevenger attempts to minimize Van Leuven's remarks. But the Board was entitled to consider a superintendent's negative assessment of his leadership as a valid reason not to renew his contract as a high school principal. (Ibid.)
The Protective Order
Clevenger contends he was entitled to initiate discovery to compel Board members to answer questions about the unrecorded closed deliberation session to confirm that they did not consider complaints or charges against him. He suggests that the content of the closed session is not entirely confidential, and consequently the trial court erred by issuing the protective order. We disagree.
Clevenger's arguments were essentially rejected in the Kleitman case. There the Court of Appeal held that the "Brown Act does not provide for disclosure of the personal recollections of members of a legislative body with regard to the proceedings held in an unrecorded closed session." (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 326.) A school board is a legislative body within the meaning of the Brown Act. (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 95.)
In the trial court, Clevenger claimed that he was entitled to discover "what the discussion is that the board took in closed session." (Italics added.) But such discussions are confidential under the Brown Act, and this type of discovery would expose the Board members' thought processes during deliberations. In Kleitman, the Court of Appeal held that a "trial court cannot compel disclosure of the personal recollections" of the decision makers "with respect to a closed session, without improperly reading into the Act a discovery procedure which would violate the confidentiality of closed sessions which is inherent in the Act." (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 327.) The Legislature has taken steps to protect the confidentiality of these closed sessions from the type of broad based discovery typically available in civil cases. (County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1106 ["closed session minutes are not subject to discovery in a civil case"].)
Clevenger claims that the trial court's discovery order was unreasonable. But the Board's objections to the depositions Clevenger sought were meritorious. The Board members have a duty not to discuss the content of their deliberations. Section 54963, subdivision (a) states, in relevant part, "A person may not disclose confidential information that has been acquired by being present in a closed session...." Moreover, courts are also prohibited from compelling board members to disclose their discussions during their deliberation sessions. (City of Santa Cruz v. Superior Court (1995) 40 Cal.App.4th 1146, 1153-1154.) Discovery orders are "reviewed under the abuse of discretion standard." (County of Los Angeles v. Superior Court, supra, 130 Cal.App.4th at p. 1104.) Clevenger has not shown an abuse of discretion.
Burden of Proof
The Board contends an affirmance also is required because Clevenger had the burden of proof and he presented no evidence in the trial court to show that it committed any wrongdoing. It claims Clevenger relies solely on speculation.
Clevenger claims the burden of proof was shifted to the Board to show what it considered in its closed session. He argues that because the Board failed to present evidence on this issue, we must reverse the judgment. We disagree with Clevenger's analysis.
Clevenger is speculating that the Board considered inappropriate matters in its closed session and essentially deceived him. But the party claiming that his adversary is guilty of wrongdoing has the burden of proof on that issue. (Evid. Code, § 520; Lane & Pyron, Inc. v. Gibbs (1968) 266 Cal.App.2d 61, 67.) In addition, because the Board is an official body, absent evidence to the contrary, there is a presumption "that official duty has been regularly performed." (Evid. Code, § 664; People v. Martinez (2000) 22 Cal.4th 106, 125; Doran v. Burke (1953) 118 Cal.App.2d 806, 807.) This presumption "'affect[s] the burden of proof" [citation] meaning that the party against whom it operates-here, [Clevenger]-has 'the burden of proof as to the nonexistence of the presumed fact.'" (Martinez, at p. 125.)
The Board's adopted minutes do not mention that the Board considered any complaints or charges. The only action mentioned was a vote not to renew Clevenger's contract and to reassign him as a "certificated" employee. Clevenger suggests that this summary was incomplete. But it was his burden to prove that claim. (Fisk v. Department ofMotor Vehicles (1981) 127 Cal.App.3d 72, 78-79.) "'The special trustworthiness of official written statements is found in the declarant's official duty and the high probability that the duty to make an accurate report has been performed.'" (Id, at p. 79.) "[T]he law presumes good faith action by administrative decisionmakers." (California Teachers Assn. v. Butte Community College Dist. (1996) 48 Cal.App.4th 1293, 1308.)
Moreover, where a plaintiff has only speculation to support a claim of Board misconduct, shifting the burden of proof would be inappropriate. It would force Board members to disclose the content of their executive session to refute an unproven misconduct allegation which would undermine the Brown Act and distort the deliberative process. The act intended the Board to have "free and candid discussions of personnel matters." (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 96.) But "'[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances... to the detriment of the decisionmaking process.'" (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1340-1341.) If mere accusations could force decision makers to testify about their thought processes in deliberation, the closed deliberation session would become superfluous. Plaintiffs would invariably use discovery as fishing expeditions to expose every idea brought out in deliberations. The result would be that Board members who once had the right to freely deliberate would now be intimidated and forced "to operate in a fishbowl." (Id. at p. 1340.)
Clevenger argues that the trial court erred by not weighing the need for preserving confidentiality against his showing of the necessity for disclosure. (Evid. Code, § 1040, subd. (a)(2).) But in Kleitman, the Court of Appeal ruled that such balancing is prohibited under the Brown Act because the confidentiality of the closed session is absolute under state law. (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 335, fn. 9.) Clevenger claims the Kleitman court erred. We disagree, but even if he is correct, the result does not change. There may be cases where a burden shift is appropriate based on a proper showing or where discovery of closed session information is required by federal law. (Kaufman v. Board of Trustees (C.D. Cal. 1996) 168 F.R.D. 278, 280 [board's Brown Act confidentiality claim overruled in teacher's title VII action (42 U.S.C.§ 2000e-5)].) But this is not such a case.
Failure of Proof
In his mandamus petition, Clevenger alleged that the Board "discussed specific complaints and charges against him in closed session" in violation of the Brown Act. The Board denied these allegations in its answer, placing these facts at issue. Where there are disputed facts about the Board's actions that are not found in the administrative record, the mandamus petitioner must go to trial on those issues. (Moreno v. City of King, supra, 127 Cal.App.4th at pp. 21-23; Mola Development Corporation v. City of Seal Beach (1997) 57 Cal.App.4th 405, 411, fn. 3; see also Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264, 268 ["[W]hen a question of fact is raised by an answer to a petition for writ of mandamus the matter is heard in the same manner as any other trial"].)
But at the hearing on his mandamus petition, Clevenger did not testify, he called no witnesses, and the trial court said it was "surprised there was no request for any kindof testimony...." Clevenger presented oral argument, but that is not a substitute for proving facts. (Moreno v. City of King, supra, 127 Cal.App.4th at pp. 21-23; Lotus Car Ltd. v. Municipal Court, supra, 263 Cal.App.2d at p. 268.)
This evidentiary omission is critical because Clevenger is now suggesting that Van Leuven's February 16th letter was not credible, was not a true rescission of the February 14th letter, that the February 14th letter expressed the real agenda, and that he was misled. But his claims required evidentiary proof.
Clevenger claims the protective order impeded him from proving facts. But it only prohibited discovery about what was said in the two-hour closed session. It did not prevent Clevenger from otherwise discovering facts to support his hidden agenda theory, or requiring Van Leuven to testify about why he changed his position on February 16th. (City and County of San Francisco v. Superior Court (1975) 13 Cal.3d 933, 936.) Clevenger could have requested that the closed session minute book, which lists the "topics discussed" by the Board in the closed session, be produced for an in camera inspection by the trial court. (§ 54957.2, subd. (a); Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 333.) If he believed he was misled, he could have testified. Had he done so, and had the evidence exposed improper conduct, he would have been in a better position to claim that discovery should be expanded and that inferences should be drawn against the Board. Clevenger cites Moreno v. City of King, supra, 127 Cal.App.4th 17, 22, but there the mandamus petitioner presented testimony to establish a Brown Act violation, and, unlike here, the city did not object to testimony about what happened in a closed session. By contrast, here the trial court properly found that Clevenger did not prove "that the Board actually considered any specific charge or complaint in contravention of the Brown Act."
We have reviewed Clevenger's remaining contentions and conclude he has not shown error.
The judgment is affirmed. Costs on appeal are awarded in favor of the respondent.
We concur: YEGAN, J., PERREN, J.