A Bigger Mess, Part 2
By Frank Gruber
At last week's City Council meeting Council Member Ken Genser reluctantly
cast the decisive fourth vote in favor of Council Member Bob Holbrook's
motion that conditioned an additional $530,000 of City funding for the
schools on the School Board's instituting immediately a moratorium on
including confidentiality clauses in settlements of disputes with parents
over special education plans.
When Mr. Genser did this, I was relieved. I thought Mr. Genser had
done the right thing in the circumstances.
After all, to give some credit to Mr. Holbrook and to his colleagues
Herb Katz and Bobby Shriver, even though I disagree with what they did,
at least they reduced their demands from two weeks before, which had
included a requirement that the District retroactively void confidentiality
clauses in existing agreements. They modified the ban to make it prospective,
and to be binding only until the District completes an independent review
of its special ed programs.
I still admire Mr. Genser for his intentions, but in retrospect it
would have been better if he had held his ground.
Then the onus for the District's not getting the money would have fallen
on Council members Holbrook, Shriver, and Katz. They had rejected a
reasonable motion put forward by Financial Oversight Committee Chair
Paul Silvern and citizen stalwarts Chris Harding, Louise Jaffe and Dennis
Zane that would have given the District the money based on the Board's
agreement to complete an independent review of its special ed policies,
including the confidentiality clauses, by March 31, 2008.
Unfortunately, the Silvern motion wasn't sufficient for Council members
Holbrook, Shriver and Katz. They didn't trust the Board that much. To
them the issue was more of a morality play.
A question that Mr. Katz asked former District CFO Winston Braham about
where the money for the special ed settlements came from epitomized
the disconnect between the Holbrook side and the District. Mr. Katz
didn't know where the money for the settlements came from and Mr. Braham
had to inform him that the money came from the District's general fund.
Mr. Katz seemed surprised. How could he not know a fact that is so basic
to the District's perspective, and then trash the District's conduct?
If Mr. Genser had not supported the Holbrook motion, what would have
happened? The council would have deadlocked, and the money would not
have been appropriated.
There would not, however, have been a financial disaster. The District
does not need the extra money at this very moment. Instead, there would
have been an opportunity in the near future -- assuming the Board and
District staff cleaned up their act and straightened out the special
ed situation -- for all the council members, including Messrs. Holbrook,
Shriver and Katz, to acknowledge the Board's own corrective measures
(for which Messrs. Holbrook, Shriver and Katz could still take credit),
and then find some way to give the District the money.
But now the relationship between the council and the board, and the
City and District, is worse than ever. The Holbrook motion dictates
policy to the board in humiliating detail; it includes, for instance,
in addition to the ban on confidentially clauses, a gratuitous and galling
-- from an independence standpoint -- requirement that the District
agree not to include confidentiality clauses in future employment or
settlement agreements with its own financial personnel.
The board is between a rock and hard place. If it refuses to cave into
the council and institute the moratorium on confidentiality clauses,
it will give ammunition to the right-wing nihilists (as I've called
them in the past) who will oppose the renewal of the parcel tax. The
parcel tax will probably come to a vote in 2008. The last parcel tax
barely got the approval of the required two-thirds vote in 2003, and
that was after a higher tax was defeated in 2002.
If the board rejects the council's money, the anti-tax opponents of
more school funding will argue that the District must not need the money.
Given that the parcel tax money in effect funds the District's general
fund contribution to special education, the failure of the parcel tax
would be a disaster for all concerned.
But if the board caves, it will undercut its own authority, and establish
a precedent whereby the City Council has a de facto veto over District
policies.
No doubt there will be members of the board who will want to make dramatic
gesture and refuse the City's conditions. That would be a monumental
mistake. Given how the board has mismanaged both the Winston Braham
fiasco and the special ed issue, the board doesn't have enough credibility
to make a last ditch stand on principle.
The District can do without $530,000, but it can't do without the parcel
tax. And if the parcel tax is not renewed, and if the relationship with
the City is so bad that the funding agreement with the City is not renewed
in two years, then you can forget about those programs that everyone
loves about the Santa Monica and Malibu schools.
That's why Community for Excellent Public Schools (CEPS), the group
that organized around more City funding for the schools seven years
ago, last week voted unanimously to urge the School Board to accept
the City Council's terms.
Is there a face saving way out?
I can think of three possibilities. One would be based on the fact
that Council member Holbrook left one big loophole in his resolution.
Under the Holbrook motion, adopted by the council, confidentiality clauses
are to be banned, but not if parents request them. Speaking as a lawyer,
that provision provides a lot of wiggle room to parties who are motivated
to settle before going to formal mediation or a due process hearing.
A second possibility is that the board could leave the decision up
to the staff. Superintendent Diane Talarico testified at the City Council
meeting last week that the confidentiality clauses are "a practice,
not a policy." In other words, the board never instituted a policy
of secrecy -- it's a staff thing.
Perhaps Ms. Talarico can do a quick review and report to the board
that the staff is ready to suspend confidentiality until the outcome
of the independent review, as required by the council's motion. The
board could ratify that recommendation, and not have to bow explicitly,
before having done its own analysis, to the council's demand.
The third possibility would be to institute a policy of no settlements
short of formal mediation until the independent review is complete.
Since parents have objected not only to the confidentiality clauses,
but also to the fact that settlement agreements do not become part of
their children's education plans, foregoing all settlements short of
the start of "due process" proceedings might be the cleanest
approach.
This approach could save face at the board because the District wouldn't
be in the situation of entering into settlements that are not confidential,
something staff have claimed is problematic. The downside would be that
there would more legal costs for both the District and parents.
In any case, this is no time for heroics. The board members need to
look ahead to the parcel tax renewal. They will need unanimity from
all political factions represented on the City Council to gain approval
of new parcel taxes.
* * *
What with all these columns about school funding, I've been oblivious
to other developments. Tonight's City Council hearing is an important
one for both the land use and circulation element updates and the future
of the Civic Center, two issues I've written about for years. City planners
will present to the council for its review new principles to guide the
LUCE process, and more advanced plans for the residences at the Civic
Center known as the Village.
Should be interesting.
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