DA To Review Allegations of Brown Act Violation Against Board Member Scott Schmerelson

What appeared to be an attempt to delegitimize the LAUSD Board’s selection of Superintendent Austin Beutner may have unwittingly placed Republican Board Member Scott Schmerelson (BD3) in legal peril. The Los Angeles County District Attorney’s office is reviewing allegations that Schmerelson broke the law when he revealed details of closed-session Board meetings while criticizing Beutner’s selection.

Board Member Scott Schmerelson

Board Member Scott Schmerelson

Breaching the confidentiality of closed-session Board meetings can be a violation of the Brown Act, and Board Vice President Nick Melvoin (BD4) told Speak UP he believes that Schmerelson did so when recently speaking to the Northridge East Neighborhood Council.

“Our office will review allegations that LAUSD board member Scott Schmerelson violated the Brown Act,” said Greg Risling, a spokesman for the Los Angeles County District Attorney’s Office.

Schmerelson denied allegations that he broke the law but also told Speak UP that he would adjust his behavior in the future.

“I do not believe I violated the Brown Act, that was certainly not my intent when speaking to my constituents last week,” he said in an email statement. “Since the Superintendent had already been officially selected and hired, I believed I was free to offer my opinions and answer questions about the hiring process…Nevertheless, it has been brought to my attention that my discussion and characterization of Mr. Beutner’s hiring process could have a chilling effect on conversations held in Closed Session. I will be more careful in the future.”

The website K-12 News Networks The Wire reported on the recent meeting during which Schmerelson allegedly described details of the Board’s closed-session interview with Beutner during the hiring process.

“In describing Beutner’s conversations with the Board prior to his being hired, Schmerelson states that ‘It was the worst interviews [that] I have ever seen in my entire life. Not one question was answered about education.’ Every time Schmerelson ‘asked a question about education, [Beutner] couldn’t answer because he really didn’t know,’” the site reported.

A video of Schmerelson’s comments that appeared on that site and on changelausd.org website has been removed, but Melvoin confirmed that he viewed the video before its removal. In a press release issued May 1, Schmerelson also revealed how many and which Board members agreed to enter contract negotiations with Beutner during closed session on April 20.

“He’s revealing closed-session stuff. In the video, he talks about Austin’s answers,” Melvoin told Speak UP. “I’m not a Brown Act expert, but my understanding from our general counsel is that the revealing of confidential information is a violation of the law. What happened before we publicly voted: who wanted Austin, who didn’t, what Austin said, is confidential.”

Remedies for breaching the Brown Act’s confidentiality include “injunctive relief, disciplinary action against an employee, and referral of a member of the legislative body to the grand jury,” according to a legal guide to the Brown Act from the League of California Cities.

The DA’s review of allegations against Schmerelson comes one day after the DA confirmed it had received and was reviewing a separate complaint against the Board alleging violation of the Brown Act during the superintendent selection process, which The Los Angeles Daily News first reported Tuesday. According to the Daily News, that complaint filed May 7 by the East Area Progressive Democrats club, alleged that a secret vote for superintendent took place on April 20 that was not reported to the public.

Those allegations mirror ones that Schmerelson himself made in his May 1 press release and on Facebook immediately after Beutner was hired during an open session 5-2 vote. Schmerelson was one of two Board members who voted against Beutner.

“On April 20, by the slimmest majority possible, four members of the LAUSD Board of Education (Garcia, Melvoin, Vladovic, Rodriguez) voted to authorize negotiations for an employment contract with Mr. Austin Beutner as the General Superintendent of the District. I did not vote for Mr. Beutner,” Schmerelson said in his press release May 1. “I apologize to the dedicated parents and constituents who have been advocating for a voice in the superintendent selection process. I am especially addressing those who have been expressing their frustration with the lack of transparency during the last 10 days, when every member of the Board knew that a decision had already been made while pretending to be maintaining an open mind toward all the candidates who were deemed finalists.”

LAUSD’s general counsel David R. Holmquist and Melvoin both strongly dispute that the Board acted improperly during the selection process. “The Brown Act contains detailed rules regarding what must be agendized and how, how action is to be taken, and what must be reported and how and when,” Holmquist said in a statement. “The selection process complied with the Brown Act requirements.”

LAUSD Board Member Scott Schmerelson (left), former Interim Superintendent Vivian Ekchian and Board VP Nick Melvoin

LAUSD Board Member Scott Schmerelson (left), former Interim Superintendent Vivian Ekchian and Board VP Nick Melvoin

“I’m confident that we were following the law,” Melvoin added. “There are these exemptions in the Brown Act to ensure that you can have a confidential search process. It’s not just for school board [but also] the police commission, the city council. We never meet without Dave Holmquist. At my urging, we had a Brown Act presentation in public a few months ago because I wanted to remind my colleagues in the public what we were allowed to do and what we weren’t.”

Melvoin and another source told Speak UP that Beutner’s selection process was identical to that of former Superintendent Michelle King.

“My understanding as an observer and now what I have heard, is that before Christmas in 2014, seven members of the Board, including Scott, all seven, [authorized] contract [negotiations] for Michelle King. It was three weeks later that she was confirmed,” Melvoin told Speak UP. “So I’m curious why, if it was a violation now in the opinion of whomever, then the same thing would have to be said a few years ago. The Board made the decision to offer a contract to Dr. King weeks before it was announced and the vote was taken in public.”

Schmerelson's chief of staff Arlene Irlando disputed that comparison in an email to Speak UP: "Your sources on this issue have misled you. The public notice for the hiring of Michelle King was NOT identical to Beutner.  On the last day of the selection process, January 11, the Board exited Closed Session and excitedly announced their choice. Thereafter, Ms. King’s contract was presented to the Board for approval on January 12. Very different sequence and transparency." 

Melvoin characterized the allegations against the Board’s process as a distraction from the work of the district on behalf of LA’s kids.

“What that [May 1] statement did and what this video does is potentially, one, show a violation of the law by Mr. Schmerelson, but also just kind of give an air of childishness, when we’re all trying to focus on the work that needs to be done,” Melvoin said. “What I think this shows is there are hurt feelings, and some people didn’t get their choice. And that’s how life works sometimes. And it is unfortunate that this has now turned into this kind of mudslinging charade. Because it really takes away from the work we’re all trying to do.”

Melvoin said the Brown Act allows the Board to discuss certain confidential matters behind closed doors, such as hiring decisions, labor negotiations and litigation because “certain things require confidentiality to either increase leverage in negotiations or hire good people. If every search…had to be done in complete public, no people with other jobs would apply.”

The names of LAUSD superintendent finalists were leaked to media, which affected one of the candidates, Melvoin said. “One of the things that was really unfortunate with our search, and now it maybe starts to make sense, is these leaks: Lewis Ferebee, who is the superintendent in Indianapolis, almost lost his job over the fact that someone in our Board room leaked that confidential information. That is why it’s criminal.”

Transparency was a key part of Melvoin’s platform when he ran for office, but “certain things need to be confidential, and that doesn’t mean you’re not transparent,” Melvoin said. “[We need] an adult-level conversation about transparency, as opposed to a childish conversation about transparency.”

The process the Board used is mirrored by many other public agencies during their hiring process, he said, including the mayor’s search for a new police chief. “This is at the school board level, at the police commission level, at the cabinet level,” Melvoin said. “Barack Obama wasn’t necessarily saying 'Here are the eight people I’m considering for attorney general. What do you think?' Because a lot of them were in current jobs.”

LAUSD Superintendent Austin Beutner

LAUSD Superintendent Austin Beutner

Even though Melvoin said he believed that Schmerelson broke the law, he did not file an official complaint against Schmerelson with the DA because “I think that we need to move past this,” he said. “Even if I’m disappointed in the violation of confidentiality because of the integrity of future conversations, it is not my intent to try to bring any legal action against a colleague. I think this can be handled as adults. But the rants have to stop.”

The DA, however, said it was moving forward with a review of the allegations anyway. And sources tell Speak UP that Melvoin was not the only Board member upset with Schmerelson. Board Member Richard Vladovic (BD7), one of the strongest supporters of Beutner, was characterized by one source as “livid.” Vladovic and Board President Monica Garcia (BD2), who also supported Beutner, did not respond to requests for comment.

Melvoin said it’s time for everyone to focus on the kids. “I would like us adults to realize we need to move on beyond hurt feelings and get to work,” he said. "You win some, you lose some. That’s a lesson we try to teach our children. And when you lose some, you’ve gotta pick your head up and focus on what comes next.”