The following letter describes a Brown Act violation in 2008 by the VUSD board.
October 17, 2008
Board of Trustees
Re: Cure and Correct California Ralph M. Brown Act Violations.
Dear Chairman Gibson,
This letter is to call your attention to what I believe were substantial
violations of central provisions of the Ralph M. Brown Act.
The natures of the violations are as follows:
On October 16, 2008 I attended a meeting of the Vista Unified School District
Board of Trustees “VUSD.” I pulled a card to speak on Agenda Action Item
(Item 13 was Student Support Services, Section D. Approve Guajome Park
Academy’s Staff and Board Recommendations for Expulsion of Cases
Numbered W-14-2008/09 and W-18-2—8/09 & W-19-2008/09.)
When Chairman Gibson called my name to the podium, I began to speak for
about 60 seconds before Board Member David Hubbard abruptly interrupted
me. He asked what my comment had to do with expulsion. I said, that I was
commenting on expulsions. Before Board Member Hubbard abruptly
interrupted me I had just read VUSD’S Board Policy No. 5013 “Suspension
and Expulsions,” Section (3), which read: “It is the intent of the Board of
Education that its policies and regulations be consistent with current law.
Any part of this policy, which is not consistent with current law, shall be
I asked whether VUSD knew if Guajome Park Academy had policies for
expulsions? If they knew what those policies were? If the policies were
allied with California law and If Guajome Park Academy had a legitimate
Board Member Hubbard asked what does this have to do with Section “C.”
and that Section C had to do with Readmission of Students who have been
expelled from other school districts? Board Member Hubbard told me that I
had pulled a card for “Section C.” Board Member Hubbard said we have
already ratified the item and you cannot speak on it any more. President of
the Board Gibson agreed. They both insisted that I had pulled the card for
If in fact I had pulled the card for Section C then why would the VUSD Board
ratify Section D before Section C?
I have addressed the issue of VUSD Board Member David Hubbard rude and
abrupt interruptions, when I have attempted to speak on the Vista Unified
School District Board of Trustees Meetings for many years.
I have addressed this same issue with regulatory agencies. Board Member
David Hubbard has continued this illegal conduct with complete disregard of
California State Open Meeting Laws. David Hubbard as Board Member and
attorney has given VUSD legal advice that is contrary to the law for over
twelve years. David Hubbard conspired with former superintendent Dave
Cowles to defraud the public, students and parents of the Vista Unified
School District; with distorted legal advised and recommendations that have
bankrupt the Vista Unified School District for over twelve years.
The Vista Unified School Board Members need to be reminded that the
people of the state of California have the right to criticize the policies,
procedures, programs, or services of the agency, or of the acts or
omissions of the legislative body. Baca v. Moreno Valley Unified School
District (1996) 936 F.Supp. 719.
“Thus, under the California Constitution, District’s Board may not censor
speech by prohibiting citizens from speaking, even if their speech is, or may
be, defamatory.” (at pg. 727)
The action to censor my First Amendment Right to Speak by this Board not
only violates the State Constitution, but it is also contrary to the Brown Act.
This is primary the reason why David Hubbard and the entire Vista Unified
School District Board of Trustees has and will continue to have a Permanent
Injunction (See also Leventhal v. Vista Unified School District (1997) 973 F.
The Ralph M. Brown Act (Government Code §54950 et seq.) provides that the
public has a right to address the VUSD School Board on any matter on the
agenda of the VUSD School Board Meeting before action is taken on that
item (Government Code §54954.3), (Section C comes before Section D) and
to also address the VUSD School Board on any subject within the subject
matter jurisdiction of the VUSD School Board Meetings that is, on subjects
for which the VUSD School Board has some ability to take action
(Government Code §54954.3).
The censoring of my First Amendment Right to Speak is a violation of my
right publicly to share my criticisms of school board policies with the VUSD
Board of Trustees and concerned community members pursuant to
California Government Code section 54954.3, a code section found in
California's open meeting law, commonly known as the Ralph M Brown Act).
Cal.Govt.Code, §§ 54950 et seq.
As I have informed you before on many letters sent to the entire Vista Unified
School District Board of Trustees:
The Vista Unified School District has constantly been informed by
community members of its pervasive Brown Act violations and continues to
ignore the public’s request for open government, transparency and
accountability. If by any chance you did not read the prior letters, I will
repeat once again the Vista Unified School District and every Member of the
Board of Trustees has a permanent injunction in respect to Brown Act
violations in the United States Court for the Southern District of California in
the universally known and quoted Leventhal v. Vista Unified School District.,
School Board President David Hubbard, in his Official Capacity, et al.,
Defendants. 973 F. Supp. 951 (1997)
Therefore, pursuant to provisions (Government Code Section 54960.1.), I
demand that the Vista Unified School District Board of Trustees cure and
correct the illegally taken actions mentioned above.
As a consequence, I am giving you a final formal written demand letter (§
54960.1(c)(1); County of Del Norte v. City of Crescent City (1999) 71 Cal.App.
4th 965, 978; Bell v. Vista Unified School Dist.(2000) 82 Cal.App.4th 672, 684.)
I suggest that you take the advice from a true professional instead of Board
Member Hubbard. Including a crash course on the California Ralph M. Brown
Act for all the members of the Vista Unified School District Board of Trustees
panel. So as to enhance your further involvement as representatives of the
California Ralph Brown Act. Subsequently, that you may develop a deeper
understanding of members of the public rights to attend and participate in
public meetings that should be open for public participation for all members
of the community. [Government Code Section 54954.3. (a)]
A crash course on open and public meeting law as based on the Ralph M.
Brown Act for all VUSD Members of the Board of Trustees and VUSD
subcommittees. [Government Code Section 54950., 54950.5. 54952.] May I
suggest at minimally that VUSD subcommittee panel members be provided
with a current copy of the Brown Act [Government Code Section 54952.7].
Due to the multiple roles the panel members hold with other VUSD
subcommittee assignments and other public agencies, perhaps a workshop
presentation by Terry Franke from The Californians Aware. 2218 Homewood
Way Carmichael, CA 95608 Phone: 916-487-7000 Fax: 916-487-7999 would
better serve your efforts of compliance with the law as well as to ensure and
protect the community's rights to bring forward public criticism of policies,
procedures, programs, or services. The Californians Aware organization is
considered the experts in the area of open meeting laws, public record law,
and First Amendment.
As Government Code section 54950 "Declaration of Intent" indicates:
"The people of the state (Vista Unified School District Board of Trustees) do
not yield their sovereignty to the agencies, which serve them. The people, in
delegating authority, do not give their public servants the right to decide
what is good for the people to know and what is not good for them to know.
The people insist on remaining
informed so that they may retain control over the instruments they have
As provided by Section 54960.1 you have 30 days from the receipt of this
demand to either cure or correct the challenged actions or inform me of
your decision not to do so. If you fail to cure or correct as demanded, such
inaction may leave me no recourse but to seek a judicial invalidation of the
challenged actions pursuant to Section 54960.1, in which case I would seek
the award of court costs and reasonable attorney fees pursuant to Section
Vista Unified School District
2008 Violation of Brown Act
Leventhal v. Vista Unified School Dist., 973 F.
Supp. 951 (1997)
The judge in this case put VUSD under a
"Defendants ...are hereby
permanently enjoined and
restrained from enforcing the
prohibitions on any criticism,
"complaint or charge against
an employee of the District"
contained in Vista Unified
School District Bylaw No.
9002, §§ B and C."
Nancy LEVENTHAL; Margaret C. O'Neill,
VISTA UNIFIED SCHOOL DISTRICT; School
Board President David Hubbard, in his
Official Capacity, et al., Defendants.
United States District Court,
MOSKOWITZ, District Judge.
This matter comes before the Court on
Plaintiffs' motion for PERMANENT INJUNCTION
... the Court adopts its order of June 18,1997
and applies that order to Defendant David
Hubbard and to the new Defendants--Jenny
Vervynck, Lance Vollmer, Linda Rhoades and
Barbara Donovan, sued in their official
Plaintiffs challenge School Board Bylaw No.
9002 (the "Bylaw") under:
--the First and Fourteenth Amendments to the
United States Constitution,
--Article I, §§ 2, 3 and 7 of the California
--and the state's Brown Act, Cal. Gov't Code §§
54954.3 and 54960,
seeking declaratory and injunctive relief.
The Bylaw permits the Board President to
"terminate a presenter's address" at an open
Board meeting "if a presenter persists, after a
warning, to engage in improper conduct or
remarks." Bylaw, § C. The Bylaw
acknowledges *954 that state law grants the
public the right "to directly address the Board
on items of interest to the public that are
within the subject matter jurisdiction of the
Board," but limits those rights "with respect
to presenting a complaint or charge against
an employee of the District." Id. § B. Under the
Bylaw, "[c]omplaints against an individual
employee will not be heard at open Board
meetings unless the individual employee
consents." Id. ...........
... Because she had concerns over Gyves's
fiscal administration of the District, his
supervisory skills, and his prior performance
as superintendent of another school district,
Leventhal also questioned aloud whether the
Board had adequately investigated Gyves
prior to hiring him. As soon as Leventhal
mentioned Gyves's qualifications, Board
President Hubbard interrupted her,
stated that Leventhal was "moving into a
personnel issue," and, pursuant to the Bylaw,
informed her that her criticisms could not be
made in a public Board meeting.
According to Leventhal, after
Hubbard's interruption, she
comments about the hiring of Dr.
Gyves, rather than face the
indignity of further censorship
and disruption of the
... Leventhal then spoke, remarking that "it is
totally inappropriate to have a community
member who is using their free speech rights
to speak ... lectured and have judgments
made about them publicly." (Id. at 5.) Hubbard
responded to Leventhal, explaining that while
criticisms of the Board and the District were
permissible, "I'm not going to allow
this to turn into a situation where
members of the public engage
members in personal attacks.... [I]f
that's an abridgment of First
Amendment rights, *955
then I'll wait for a court of law to
tell me that." ..........
For instance, Mary Bristol, mother of five
former and two current students in the
district, has submitted a declaration
describing her participation in the March 20,
Board meeting........According to Bristol, Gyves
denied that he had endorsed the proposal,
"attack[ing]" Bristol's credibility
and referring to her remarks as
"bizarre" and "about typical of the
accuracy of your statements
historically." (Id. 6.) Bristol states
that Hubbard, the Board
President, made no effort to
restrain Gyves's comments,
"despite the fact that Mr. Hubbard
has repeatedly silenced several
members of the public who have
attempted to criticize Dr. Gyves
and various Board members at
recent Board meetings."
Bristol concludes, "Based on Mr. Hubbard's
continuing enforcement of Bylaw No. 9002, I
now refrain from speaking
openly at public Board meetings about my
concerns and criticisms regarding the District
Superintendent's qualifications and
III. Ban on criticism of employees
in open meetings:
Bylaw No. 9002 §§ B and C  Plaintiffs'
primary claims challenge the Bylaw's
restrictions on raising "complaints" or
"charges" against District employees at open
Board meetings. [FN4] Bylaw, §§ B & C.
As explained below, the Court
finds the criticism provisions to
be violative of core First
Because it concerns the government's ability
to limit private expression in a public
context, this case is governed by the public
forum doctrine. Although the doctrine's roots
can be traced back to dicta in the Supreme
Court's decision in Hague v. CIO, 307 U.S.
496, 515, 59 S.Ct. 954, 963-64, 83 L.Ed. 1423
(1939), the modern categorical approach
began with Perry Education Ass'n v. Perry
Local Educators' Ass'n, 460 U.S. 37, 103 S.Ct.
948, 74 L.Ed.2d 794 (1983).
In Perry, the Court identified three distinct
types of fora:
first, "traditional" public fora--"places which
by long tradition or government fiat have
been devoted to assembly and debate;"
second, "limited" public fora-- "public
property which the State has opened for use
by the public as a place for expressive
third, "nonpublic" fora--property not dedicated
in any significant way to free or open
Under this categorical system, the state's
ability to regulate speech depends on the
nature of the forum. The government's power
to restrict expression in traditional public
fora, the Perry Court explained, is extremely
limited: "reasonable time, place and manner
regulations are permissible, and a content-
*957 based prohibition must be narrowly
drawn to effectuate a compelling state
The Court imposed similar restraints on
speech in limited public fora: "Although a
State is not required to indefinitely retain the
open character of the facility, as long as it
does so it is bound by the same standards as
apply in a traditional public forum." Id. In
nonpublic fora, the government may restrict
expression only if the regulation is reasonable
...the maintenance of the
opportunity for free political
discussion to the end that
government may be responsive to
the will of the people and that
changes may be
obtained by lawful means, an
opportunity essential to the
security of the Republic, is a
fundamental principle of our
constitutional system. [I]t is a
prized American privilege to
speak one's mind, although not
always with perfect good taste, on
all public institutions,
and this opportunity is to be
afforded for vigorous advocacy
no less than abstract
...Defendants contend that these concerns
are outweighed by the District's interest in
protecting the privacy and property rights of
 Before examining the
Defendants' contentions, it is
important to remember that even
if the Brown Act sanctioned the
Bylaw, First Amendment speech
trump the statute.
It is no defense to suggest that since the
Brown Act created the Board
meetings, the Brown Act can also authorize
unconstitutional limitations on those
The essence of the public forum doctrine is
the notion that although the
government need not devote its property to
expressive activity, once it does it is bound by
the strictures of the First Amendment.
 That said, the Brown Act
provides little support for the
Although §54957 allows public employees to
demand that a governing body air complaints
about the employee in public, it does not grant
the employees the right to force the conflict
behind closed doors.
Similarly, while the Brown Act permits
governing bodies to hold closed
sessions about personnel matters, nowhere
does it grant those bodies the exceedingly
broader authority to silence public speech
that may also touch upon related employment
issues. As noted above, the sections of the
Brown Act and the Education Code that
require the Board to hold public meetings
grant the public a right to speak "on any item
of interest to the public ... that is within the
subject matter jurisdiction" *959 of the
Board, without exception. Cal. Gov't Code §
54954.3(a) (emphasis added); Cal.
Educ.Code § 35145.5 (emphasis added).
The preamble to the Brown Act sets forth the
primary purposes of the Act as a whole:
The people of this state do not yield their
sovereignty to the agencies which serve them.
The people, in delegating
authority, do not give their public
servants their right to decide
what is good for the people to
know and what is not good for
them to know. The people
insist on remaining informed so
that they may retain control over
the instruments they
Cal. Gov't Code § 54950. In San Diego Union v.
City Council, 146 Cal.App.3d 947, 954,
196 Cal.Rptr. 45 (1983), the court balanced the
same two Brown Act provisions (the
"personnel exception" of § 54957 and the
"sunshine law" of § 54953) apparently in
conflict in the instant case. Citing the statute's
preamble, the court concluded that it "must
construe the 'personnel exception' narrowly
and the 'sunshine law' liberally in favor of
openness." Id, at 955, 196 Cal.Rptr. 45. The
court explained, "Public visibility breeds
public awareness which in turn fosters public
activism politically and subtly encouraging
the governmental entity to permit public
participation in the discussion process."
Thus, while the Brown Act authorizes a school
board to discuss personnel matters in
closed session, it does not preclude the
public from raising such matters at open
meetings. Once the matter has surfaced in
public, the Board and the employee still may
adjudicate the matter in closed session.
While the Court recognizes the
privacy and property interests of
employees, the District's asserted
interests pale in comparison to
the expressive rights of
Alternatively, the Bylaw fails even under the
more deferential standard of
review applied to speech restrictions in
nonpublic fora. As mentioned above,
regulations in nonpublic fora will survive a
constitutional challenge only if they are
"reasonable in light of the purpose served by
the forum and are viewpoint neutral."
...As the Supreme Court explained in New
York Times v. Sullivan, 376 U.S. 254,
84 S.Ct. 710, 11 L.Ed.2d 686 (1964):
The maintenance of the opportunity for free
political discussion to the end that
government may be responsive to the will of
the people and that changes may be
obtained by lawful means, an opportunity
essential to the security of the Republic, is a
fundamental principle of our constitutional
system. [I]t is a prized American privilege to
speak one's mind, although not always with
perfect good taste, on all public institutions,
and this opportunity is to be afforded for
vigorous advocacy no less than abstract
discussion. Id. at 269, 84 S.Ct. at 720 (internal
quotations and citations omitted).
...The Court declares that
the prohibitions on any
criticism, "complaint or
charge against an employee
of the District"
contained in Vista Unified
School District Bylaw No.
9002, §§ B and C, violate the
Plaintiffs' rights secured
under the First and
Fourteenth Amendments to
the United States
Defendants David Hubbard, Jenny
Vervynck, Lance Vollmer, Linda
Rhoades and Barbara Donovan, acting
in their official capacity as members
of the School
Board of the Vista Unified School
District, and their agents, successors...
and employees who have received
notice of this order, are hereby
permanently enjoined and
enforcing the prohibitions on
any criticism, "complaint or
charge against an employee
ofthe District" contained in
Vista Unified School District
Bylaw No. 9002, §§ B and C...
Permanent injunction against VUSD
Education Reform Report