‘Defiant’ College Trustees Ordered to Tape Meetings

Citing a pattern of illegal meetings, an Orange County Superior Court judge has taken the rare step of ordering the board of trustees of the South Orange County Community College District to tape-record and preserve all of its closed meetings for the next two years.

Judge Tully H. Seymour also asked the Orange County district attorney’s office to see whether criminal violations occurred in a series of board actions last year; the board was accused by an instructor of failing to adhere to the Ralph M. Brown Act governing open meetings.

Experts on open meetings said it may be California’s first court order requiring public agencies to tape-record closed sessions as a remedy for open-meeting violations.

Seymour said “persistent and defiant misconduct” by the board of trustees may have tainted the appointment of a college president, a sweeping faculty reorganization and other actions.

“The record supports the conclusion that the board engaged in a continuing course of conduct that appears to the court to reflect a total disregard for the requirements of the open-meeting law,” Seymour wrote in the ruling, issued this week.

The decision came in a case filed by Roy Bauer, an ethics professor at Irvine Valley College, one of two colleges under the jurisdiction of the district. Bauer, a longtime campus dissident, filed two such suits against the college district over the past two years.

But this week’s ruling will have little practical effect because Seymour also ruled that trustees were able to “cure and correct” several of the actions illegally taken by reaffirming them in later, legally proper meetings.

As a result, Bauer and his attorney, Wendy Phillips, also an IVC instructor, did not convince the judge to overturn the appointment of the college president, Raghu P. Mathur, or undo the 1997 administrative reorganization.

An additional charge, that board members had decided in advance of a meeting whom to appoint as president, was dismissed as unfounded by Seymour. In all, college officials claimed a victory by pointing to Seymour’s dismissal of six of eight charges in the suit.

Attorneys familiar with the Brown Act said it is exceedingly rare for a judge to order a public body to tape-record its meetings and said it indicates a judge’s belief that extra steps need to be taken to bring the agency into compliance with the law. College district officials said they would appeal.

“It’s certainly rare, and it’s a way courts can monitor whether the Brown Act is being complied with,” said Rex S. Heinke, a Los Angeles attorney specializing in 1st Amendment, open-meeting and public-record laws.

Terry Francke, general counsel for the California First Amendment Coalition, a nonprofit group that advocates public access to government, said that court-ordered tape-recording was added in a revision to the Brown Act in 1994 as an “extraordinary deterrent” for dealing with repeat open-meeting violators.

“This is in place for the court when it sees a repetitive practice and suspects that this is a high-risk group, when it’s not a case of negligence, not a case of ignorance, not a one-time step over the line, but is a local body deliberately and perhaps defiantly flouting the law,” Francke said.

Spencer E. Covert, attorney for the college trustees, said that in appealing the ruling, he will try to show that no such flagrant disregard for the law took place. “There was never anything willful or intentional in what the board did,” he said.

Phillips said she and Bauer asked in their second lawsuit, filed last year, that the judge order a one-year period of taping closed sessions. By ordering two years of tape-recording, the judge took their recommendation a step further.

Similarly, Phillips had planned to ask the judge to refer the case to the district attorney’s office after the decision was made, but the judge elected to take that step on his own. “I think it shows the judge thinks this borders on criminal conduct,” Phillips said.

Heinke agreed. “From time to time, judges think there is a possibility a law has been broken and they send their decision to a district attorney,” he said. “But it’s certainly not routine.”

The board was also ordered to pay attorneys fees for the opposing side, which the plaintiffs said would total more than $100,000.