The Los Angeles Times reported on the 7th that Orange County prosecutors plan to file a civil case against former Capistrano Unified School District Superintendent James Fleming, and other officials alleging that trustees, including Crystal Kochendorfer and Marlene Draper, illegally conducted public business in secret, including approving millions of dollars in construction cost overruns for the new district headquarters. The report was based on recently unsealed grand jury transcripts.
I suspect the grand jury may not yet have completed all its work on this sad tale of political corruption at CUSD, and more witnesses may be called before a case is actually filed. Having served as counsel to the prior CUSD recall campaign, I can tell you there really is a lot of evidence of misdoing to collect. The Times reported the OC District Attorney’s "looming complaint " will allege that district officials, among other matters, violated the state open-meeting law, Brown Act.
I successfully brought a private-attorney general Brown Act case against the CUSD last year on similar charges for my client Ron Lackey, whose speech rights were conspired against in closed session by the old CUSD Board in an illegal closed session meeting held in the summer of 2005. The district settled the case with us early this year after agreeing to tape record all closed session meetings for a year, to require Brown Act training, and after paying $16,000 in Lackey’s costs to bring the suit. The current DA case is much, much more wide-ranging than the Lackey case, however, according to the Times. As reported, Deputy Dist. Atty. Dan Hess told the grand jurors in May about the planned D.A. civil filing. His comments were included in more than 1,300 pages of county grand jury transcripts that include the testimony of 14 district employees and trustees. Along with district documents seized by prosecutors, the testimony led to the indictments of former Supt. James A. Fleming and former Assistant Supt. Susan McGill over the creation of an enemies list of district critics.
The Times reported that Fleming was charged and arraigned with misappropriating public funds, using district money to influence an election and conspiracy to commit an act injurious to the public. McGill was charged with conspiracy and perjury.
But unlike my Lackey lawsuit, which was limited only to the violation of his personal rights, the DA case goes deep into the subject and facts of violation of public integrity at CUSD by Fleming, as empowered by the old Board (four of whom are still on the Board and are currently targeted for a new recall). During the same illegal meeting that Lackey’s rights were violated, the board agreed to settle a potential lawsuit with the general contractor for the district’s new $35-million headquarters. The district paid the firm an extra $3.8 million and signed the settlement during a separate closed-session meeting in August. This huge cost over-run was never properly publicly reported, denying the residents the opportunity to fully understand the workings of their school district. The reason for the secret settlement was probably to avoid a politically embarrassing mismanagement of the contruction project, which would have hurt Kochendorfer’s and Draper’s and the others re-election plans, and sullied Fleming’s reputation as a fine manager.
An exciting aspect of this case for a "public law" lawyer like myself is the fact that the DA has decided to take on a Brown Act enforcement case. It doesn’t really happen that often, and successful Brown Act enforcement litigation, even under the private-attorney statute, is fairly rare. Mega-kudos are due to Orange County District Attorney Tony Rackauckas and his staff for embarking on this important and needed public intergrity case, which will serve as an example to encourage transparent local government throughout the county and state.