brown act case: calaware v. pasadena area community college district

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KELLY A. AVILES (SBN 257168) Law Offices of Kelly Aviles 1502 Foothill Blvd., #103-140 La Verne, California 91750 Telephone: (909) 991-7560 Facsimile: (909) 991-7594 Email: [email protected] JOSEPH T. FRANCKE (SBN 88654) 2218 Homewood Way Carmichael, California 95608 Telephone: (916) 487-7000 Facsimile: (916) 487-7999 Email: [email protected] Attorneys for Petitioner CALIFORNIANS AWARE

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CALIFORNIANS AWARE, Petitioner/Plaintiff, v. PASADENA AREA COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES, Respondent/Defendant, DR. MARK W. ROCHA, President/Superintendent of Pasadena City College Real Party in Interest.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: VERIFIED PETITION FOR WRIT OF MANDATE, INJUNCTIVE AND DECLARATORY RELIEF FOR VIOLATIONS OF THE RALPH M. BROWN ACT; EXHIBITS A THROUGH H. [Cal. Government Code Section 54950, et seq.]

-1- VERIFIED PETITION FOR WRIT OF MANDATE

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This action seeks relief from the failure of Respondent/Defendant PASADENA

AREA COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES to perform as

required by the Ralph M. Brown Act (Govt. Code, 54950 et seq.; Brown Act), thereby

denying the publics right to the protections afforded by our States open government

laws and the Article One, Section Three, of the California Constitution.

Petitioner/Plaintiff CALIFORNIANS AWARE seeks a writ of mandate,

injunctive, and declaratory relief under California Code of Civil Procedure sections 1085

and 1060 and Government Code sections 54960 and 54960.1. In this Verified Petition,

Petitioner alleges as follows:

INTRODUCTION

1. On August 7, 2014, Respondent made a surprise announcement that

Superintendent/President Dr. Mark Rocha would be retiring. Discussion or action

on this issue never appeared on any of Respondents agenda. Even though his contract

did not provide for any payment upon his retirement, the District has paid Dr. Rocha

over $400,000. This action is just the latest in the string of high-level executives of

public agencies in California being awarded huge amounts of taxpayer dollars in

severance even where their contract does not provide for such payment. There is a

great public interest in the award of public money to departing employees; yet, these

deals are almost always done in secret. In this case, the District never noticed or

discussed Dr. Rochas retirement or severance compensation. This violates the publics

right to participate in the decision-making process of its local agencies, a right

guaranteed by the Brown Act and the California Constitution. Therefore, Petitioners

seek a declaration that the Boards actions violated the Brown Act, and for an order

nullifying the action taken to approve the severance compensation and to return that

taxpayer money to the Board.


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THE PARTIES

2. Petitioner/Plaintiff CALIFORNIANS AWARE (Petitioner or

CalAware) is, and at all times mentioned in this petition has been, a 501(c)(3) non-

profit public benefit corporation organized under the laws of California, governed by a

board comprised of public officials, public-minded citizens, and journalists, whose

mission includes the promotion and defense of the principles of open government. Its

offices are located at 2218 Homewood Way, Carmichael, CA 95608. As such, CalAware

has a beneficial interest in Respondents performance of its legal duties under the

Brown Act.

3. Respondent/Defendant PASADENA AREA COMMUNITY COLLEGE

DISTRICT BOARD OF TRUSTEES (Respondent or Board), is the elected seven-

member governing body of the Pasadena Area Community College District (District)

and is part of the state community college system. The Boards offices are located at

1570 E. Colorado Boulevard, Pasadena, California 91106-2003. The District is defined

as a local agency by 54951. The Board is a legislative body under 54952.

4. Real Party in Interest, DR. MARK W. ROCHA, was the

Superintendent/President of Pasadena City College from approximately July 2010 to

August 2014.

FACTS

5. Dr. Mark W. Rocha was hired in 2010 as the Superintendent/President of

Pasadena City College (PCC.) At that time, the District and Dr. Rocha entered into

an employment agreement. A copy of Dr. Rochas original employment agreement,

dated June 9, 2010, is attached hereto as Exhibit A1. A copy of Dr. Rochas amended

employment agreement, dated October 2, 2013, is attached hereto as Exhibit B.

1 All Exhibits are true and correct copies of the documents purported to be and are incorporated into this petition as if set forth in full.


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6. The Agreements both provide for a number of scenarios for Mr. Rochas

separation from the PCC.

7. First, both Agreements could be terminated by mutual consent of the

parties. There is no provision for payment from the District to Dr. Rocha should the

contract be terminated under this provision.

8. Second, the Board can choose not to renew Dr. Rochas contract. There is

also no provision for payment from the District to Dr. Rocha should the Board choose

not to renew Dr. Rochas contract.

9. Third, both Agreements provide that Dr. Rocha could be terminated with

cause. There is no provision for payment from the District to Dr. Rocha should the Mr.

Rocha be terminated with cause.

10. The final scenario provides that the Board may terminate Dr. Rocha

without cause. It is only in this scenario that any sort of payment is provided from the

District to Dr. Rocha. Under the terms of the 2010 Agreement, if Dr. Rocha is

terminated without cause, he would have been entitled to payment equal to the lesser

of the remaining term of his contract or six months pay. Under the 2013 agreement,

this provision was amended to provide for payment equal to the lesser of the

remainder of his contract term or eighteen months pay. The expiration of the 2013 did

not occur until June 30, 2017.

11. Less than a year after the negotiation of the 2013 Agreement, on August

7, 2014, the Board announced that Dr. Rocha would be retiring as of August 31, 2014.

Exhibit C is a copy of the Press Release announcing Dr. Rochas retirement.

12. It was subsequently reported that the District has had agreed to pay Dr.

Rocha over $400,000 dollars as severance. Exhibit D is a true and correct copy of

an LA Times article reporting on Dr. Rochas severance package. Exhibit E is a copy

of the Districts press release responding to the inquiries regarding Dr. Rochas

retirement.


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13. There is no reference in any agenda for any Board meeting which

indicated that the Board was discussing or took action to provide a severance package

to Dr. Rocha.

14. The purpose of the Ralph M. Brown Act is to provide notice and

opportunity for members of the public to participate in the decision-making process of

local agencies. The failure to properly notice this matter, as well as the discussion of

compensation of Dr. Rocha in closed session violates the Brown Act, deprives the

notice and the opportunity to be hearing regarding matters of great public importance.

15. On August 27, 2014, Petitioner, though its legal counsel, sent a Notice of

Brown Act Violation which included a Demand to Cure and Correct pursuant to

Government Code 54960.1 and a Demand to Cease and Desist pursuant to

Government Cod 54960.2 (Demand) to the Board. A true and correct copy of the

Demand is attached hereto as Exhibit F.

16. In the Demand, Petitioner notified the Board it had violated the Brown

Act by (1) approving the severance agreement without properly agendizing the

discussion or action; (2) failing to report action taken to approve the severance

agreement or affect the employment status of a public employee at the meeting during

which it was taken; (3) failing to release the votes of each board member regarding the

action taken to approve the severance agreement or affect Mr. Rochas employment

agreement; (3) discussing and taking final action on compensation of an

unrepresented employee in closed session; and (4) failing to disclose the facts and

circumstances which constituted the Districts significant exposure to litigation.

17. In the Demand, Petitioners requested that the Board cure and correct

as follows:

1. Rescinding the action taken to approve the severance agreement with Mr. Rocha;

2. Publically reporting the vote or abstention of every trustee to approve the severance agreement with Mr. Rocha;

3. Disclose each date and under which agenda item the Board discussed Mr. Rochas severance and/or resignation;


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18. In the Demand, Petitioners requested that the Board cease and desist

by making an unconditional commitment to refrain from the following practices in the

future:

1. Failing to set forth the facts and circumstances that justify threatened or anticipated litigation closed sessions pursuant to Government Code 54956.9(b);

2. Failing to report the vote at any meeting where an action is taken to affect the employment status of a public employee, in violation of Government Code 54957 and 54957.1; and,

3. Discussing and taking final action on employee compensation in a closed session held pursuant to Government Code 54957.

19. On September 10, 2014, Petitioners counsel received correspondence

from Mary L. Dowell of Liebert Cassidy Whitmore, attorneys for the Board (the

Districts Response.) A copy of the Districts Response is attached as Exhibit G.

The letter argued that the Board had not violated the Brown Act and, therefore, the

Board was not obligated to cure or correct any of its actions leading up to the final

Agreement and Mutual General Release with Dr. Rocha. The letter also specifically

asserted that Dr. Rochas separation and severance were properly noticed at both the

July 22, 2014 special meeting and the August 6, 2014, regular meeting as anticipated

litigation. Finally, the letter asserted, that [no other facts or circumstances regarding

this discussion were stated because it was my opinion as counsel to the Board, and

remains my opinion as counsel to the Board, that to have done at [sic] so at either

meeting would have required the disclosure of information which was not yet known to

potential litigations.

CAUSE OF ACTION FOR VIOLATIONS OF THE RALPH M. BROWN ACT

(RELIEF PURSUANT TO SECTIONS 54960, 54960.1, 54960.2;

CCP SECTIONS 1060, 1085)

20. Petitioner hereby realleges and incorporates herein by this reference

Paragraphs 1 thorough 19 of this Petition as though set forth herein in full.


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21. The Brown Act requires that the agenda for each meeting contain a

general description of each item of business to be transacted, including those to be

discussed in closed session. Government Code 54952.2(a)(1).

22. The Brown Act prohibits a public agency from taking action or discussing

any item not appearing on the posted agenda. Government Code 54954.2(a)(2).

23. The Board violated Government Code 54952.2 by discussing and taking

action on the retirement of Dr. Rocha, and his severance package, without properly

listing it on any agenda and without any public notice.

24. Government Code section 54953(c) states No legislative body shall take

action by secret ballot, whether preliminary or final.

25. Government Code 54957.1(a)(5) requires that action taken to affect the

employment status of a public employee must be reported at the meeting in which the

closed session was held, including action to terminate the employment of a contract

employee with no administrative appeal rights.

26. The District violated Government Code 54953(c) and 54957.1(a)(5) by

failing to release the votes taken to terminate the Dr. Rochas contract and/or provide

him with a severance package.

27. Government Code 54957(b) authorizes a legislative body to hold a

closed session to consider the appointment, employment, evaluation of performance,

discipline, or dismissal of a public employee, but prohibits any discussion or action on

proposed compensation except for a reduction of compensation that results from the

imposition of discipline.

28. Government Code 54957.6(a) requires that final action on

compensation of unrepresented employees must be in open session.

29. The District violated Government Code 54957 and 54957.6(a) by

discussing Dr. Roachs severance compensation in closed session.

30. Petitioner is informed and belies, and upon that basis alleges that the

Board routinely notices closed sessions relating to anticipated litigation pursuant to


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Government Code 54956.9, which allows for closed sessions to allow a legislative

body of a local agency to hold a closed session to confer with, or receive advice from, its

legal counsel when there is a significant exposure to litigation based on the existing

facts and circumstances as defined in that section. However, the Board has a pattern

and practice of failing to disclose any information regarding the facts and

circumstances relating to the anticipated litigation even though it is expressly

required do so pursuant to Government Code 54956.9(b)(3)(B).

31. The Board failed to disclose existing facts and circumstances at all of

the following meetings prior to closed sessions regarding anticipated litigation: April

2, 2014, April 30, 2014, May 14, 2014, June 25, 2014, July 16, 2014, July 22, 2014,

August 6, 2014.

32. Petitioner is informed and believes, and upon that basis, alleges that the

Board discussed Dr. Roachs retirement and severance compensation during closed

sessions at its July 22, 2014 and August 6, 2014 Board meetings, noticed only as

anticipated litigation.

33. Petitioner is informed and believes, and upon that basis alleges,2 that

existing facts and circumstances did not support that there was a significant exposure

to litigation.

34. Government Code section 54962 prohibits the Board from holding any

closed session except as expressly authorized.

35. Therefore, Petitioner alleges that the Boards discussion of Dr. Rochas

retirement and severance compensation in its July 22, 2014, and August 6, 2014,

violated Government Code 54962.

2 Petitioner attempted to obtain additional information regarding the termination to determine whether there was, indeed, a significant exposure to litigation by submitting a California Public Records Act Request on August 27, 2014. However, at the time of filing this Petition, nearly a month after the request, the District has failed to provide any responsive records. Therefore, Petitioner must allege on information and belief. A true and correct copy of the Petitioners Requests, the Districts Response, as well as follow-up correspondence, is attached hereto as Exhibit H.


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36. Even if there had been significant exposure to litigation, the District

violated the Brown Act by failing to disclose the facts and circumstances known to the

potential plaintiff, Dr. Rocha, as required by Government Code 54956.9(d)(2).

37. Petitioner alleges that these violations of the Brown Act, as set forth

above, evidence a pattern and practice of ignoring the states open meeting laws, and

have deprived Petitioner and members of the public of proper notice and of their right

to address the Board on anticipated litigation, and on Dr. Rochas

38. Without a writ of mandate, declaratory and injunctive relief provided for

by the Brown Act, Petitioner is informed and believes, and on that basis alleges, that it

and other interested persons, citizens, and taxpayers will be irreparably harmed

because they will be denied notice of and the opportunity to participate in the Boards

meetings, a right which is guaranteed by law.

39. Government Code Section 54960(a) provides that any interested person,

such as the Petitioner:

may commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to audio record its closed sessions as hereinafter provided.

40. Because the Board has failed to acknowledge its violations of the Brown

Act, the Board is likely to continue to violate the Brown Act in the future.

41. Because legal counsel for the Board has stated that the Boards prior

actions did not constitute violations of the Brown Act, it is likely the Board will

continue to violate the Brown Act in the future.

42. Government Code section 54960.1 allows for a Petition to seek judicial

nullification of an action in violation of Government Code Sections 54953, 54954.2,

54954.5, 54954.6, 54956, or 54956.5.


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43. Petitioner has complied with all notice and demand requirements set

forth in Government Code section 54960.1.

44. The Board, through its legal counsel, has refused to cure its prior Brown

Act violations, including those in connection with Dr. Rochas retirement and

severance compensation.

45. The Board has also failed to make an unconditional commitment to

refrain from similar behavior in the future, as required by Petitioners Demand and

Government Code section 54960.2.

46. Therefore, Government Code section 54960.2 specifically authorizes

Petitioner to file a lawsuit to determine the applicability of this chapter to any past

action if the legislative body fails or refuses to make the unconditional commitment as

described in Petitioners Demand and Government Code section 54960.2.

47. The Board has ignored the publics rights to be informed and involved

and should therefore be ordered by this court to tape record future closed sessions.

48. The People of California have elevated the right to open government to

one protected by their State Constitution. The California Constitution, Article 1, Section

3, Paragraphs (a) - (b) state:

The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access.

49. Code of Civil Procedure 1060 provides:

Any person interested who desires a declaration of his or her rights or duties with respect to another may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her


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rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time.

50. There presently exists, between the Petitioner and the Board, an actual

controversy relating to: (1) the legal rights of Petitioner and other members of the

public under the Brown Act and the California Public Records Act; and (2) the

ministerial duties imposed upon the Board by the Brown Act.

51. Petitioner requests a judicial determination that Respondent has violated

and is likely to continue to violate the Brown Act.

52. This determination is necessary and proper because Respondent refuses

to conform to the requirements of the Brown Act.

53. Respondent has a ministerial duty to perform according to the laws of the

State of California, including the Brown Act.

54. Respondent has failed and refused to perform its ministerial duties as

required by the Brown Act.

55. Petitioner has a clear, present, and legal right to Respondent's

performance of its ministerial duties, as required by the Brown Act.

56. Respondent has a present legal duty and present ability to perform its

ministerial duties set forth in both the Brown Act.

57. Petitioner has an interest in having the laws executed and public duties

enforced and, therefore, has a beneficial interest in the outcome of the proceedings.

58. Through this action, Petitioner seeks no greater relief that would be

afforeded to any other member of the public.

59. Petitioner has exhausted his administrative remedies.

60. Petitioner has sent a Brown Act Demand to Cure and Correct pursuant to

Government Code 54960.1 and a Demand to Cease and Desist pursuant to

Government Cod 54960.2 (Demand) to the Board.


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61. The Board, through its legal counsel, has refused to cure and correct any

of the alleged violations, and has failed to make an unconditional commitment to cease

and desist.

62. The only plain, speedy, and adequate remedy left to Petitioner is the relief

provided by Government Code sections 54960 and 54960.1.

WHEREFORE, PETITIONER PRAYS AS FOLLOWS:

1. For a declaration that Respondent PASADENA AREA COMMUNITY

COLLEGE DISTRICT BOARD OF TRUSTEES violated the Ralph M. Brown Act by:

a. discussing and taking action on Dr. Rochas retirement and severance

without proper notice in violation of Government Code 54952.2(a)(1)

and 54954.2(a)(2);

b. taking action by secret ballot, in violation of Government Code

54953(c);

c. Failing to report action taken to affect the employement status of a public

employee at the meeting where the action was taken in violation of

Government Code 54957.1(a)(5);

d. discussing and taking action on compensation in a closed session to

consider the appointment, employment, evaluation of performance,

discipline, or dismissal of a public employee, in violation of Government

Code 54957(b);

e. failing to take final action on compensation of unrepresented employees

in open session, in violation of Government Code 54957.6(a);

f. routinely holding closed session described as anticipated litigation

without announcing the existing facts and circumstances in violation of

Government Code 54956.9(b)(3)(B);


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g. discussing Dr. Roachs retirement and severance compensation during

closed sessions at its July 22, 2014 and August 6, 2014 Board meetings,

noticed as anticipated litigation, where there was no significant

exposure to litigation in violation of Government Code 54962; and,

h. discussing Dr. Roachs retirement and severance compensation during

closed sessions at its July 22, 2014 and August 6, 2014 Board meetings,

and failing to announce the existing facts and circumstances in violation

of Government Code 54956.9(d)(2).

2. To direct that a peremptory writ of mandate issue, ordering Respondent

PASADENA AREA COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES to

perform as required by the Brown Act by:

a. only discussing and/or taking action on the matters within the Boards

subject matter jurisdiction where the item appears on a posted agenda

adequately describing subjects to be discussed, including items to be

discussed in closed session;

c. not taking action by secret ballot;

c. reporting action taken to affect the employement status of a public

employee at the meeting where the action was taken;

d. refraining from discussion or action on compensation in a closed session

to consider the appointment, employment, evaluation of performance,

discipline, or dismissal of a public employee;

e. taking final action on compensation of unrepresented employees in open

session,

f. disclosing the facts and circumstances that justify a closed session

regarding threatened or anticipated litigation closed sessions pursuant to

Government Code section 54956.9(d)(2); and,

g. holding closed sessions not specifically authorized by the Brown Act.


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3. To direct that a peremptory writ of mandate issue, ordering that the

action taken by Respondent PASADENA AREA COMMUNITY COLLEGE DISTRICT

BOARD OF TRUSTEES to approve any severance payment to Real Party in Interest

DR. MARK W. ROCHA in connection with his retirement is null and void;

4. For an order requiring Real Party in Interest DR. MARK W. ROCHA to

return any and all monies paid to him by the District for severance payment in

connection with his retirement;

5. For an order requiring Respondent PASADENA AREA COMMUNITY

COLLEGE DISTRICT BOARD OF TRUSTEES to produce for in camera review all of

the Boards documents, reports, minutes, transcripts, and tapes of its closed-session

meeting on April 2, 2014, April 30, 2014, May 14, 2014, June 25, 2014, July 16, 2014,

July 22, 2014 and August 6, 2014 to allow the Court to determine whether the Board

held discussions outside the scope of the posted agenda items, discussed topics not

expressly permitted by statute for closed session, took action not formally reported

and/or failed to properly announce facts and circumstances known to potential

plaintiffs;

6. For an order requiring that Respondent PASADENA AREA COMMUNITY

COLLEGE DISTRICT BOARD OF TRUSTEES to tape record its closed sessions for the

periord of three (3) years, and preserve the tape recordings for the period and under the

terms of security and confidentiality the court deems appropriate.

7. That the Petitioner/Plaintiff recover attorneys' fees incurred in this action

pursuant to Government Code Section 6259 and/or Code of Civil Procedure Section

1021.5;


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8. For an award of costs incurred in this action; and

9. For such other and further relief as the court deems just and proper.

DATED: September 25, 2014 LAW OFFICES OF KELLY A. AVILES

Kelly A. Aviles Attorney for Petitioner


Respondent/Defendant, Real Party in Interest.

brown act case: calaware v. pasadena area community college district

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