New employer of former SDUSD general counsel Mark Bresee is sued for Brown Act violations

Rio school board sued over alleged Brown Act violations
By Cheri Carlson
Ventura County Star
June 3, 2011

Attorney William Grimm has filed suit in Ventura County Superior Court, alleging the Rio School District board broke state law in several closed-door meetings leading up to Sherianne Cotterell's removal as superintendent.

Grimm, who is married to Cotterell, wants the court to order trustees to follow California's open meetings law — the Brown Act. He also wants the court to declare null and void the split board's March 2 action to terminate Cotterell's contract without cause.

Cotterell was given 60 days' notice of the termination following the board's 3-1 vote that night.

The board majority has demonstrated a complete disregard for laws and policies, Grimm said this week in an email response to questions.

"They have done so because no one stands up to them," he said. "It is time they are held accountable. The court needs to send a message to the board majority that they are not above the law."

Rio officials disagreed. "The district denies that any violations of the Brown Act occurred, and we intend to vigorously contest the lawsuit," said attorney Mark Bresee, who represents the Rio board.

Discussions the board had in closed session were consistent with what was listed on the agendas, he said. "I obviously can't and won't discuss what the board discussed in closed session, because I'm legally bound to maintain the confidentiality of that."

Regarding the March 2 action, Bresee said "public employee discipline, dismissal, release" was listed on the agenda. People commented on the issue, the board took action to dismiss and release the superintendent, and reported that action after the closed session ended, as required by law, he said.

Under the Brown Act, trustees are allowed to meet behind closed doors to discuss a limited number of issues, including personnel. They must, however, disclose on the agenda what they generally will consider in the meeting and allow the public to comment.

Grimm said that didn't happen.

Agendas for closed sessions from Feb. 10 to March 2 included items for the superintendent's evaluation and employee discipline, dismissal or release. But those descriptions were inadequate and misleading, according to the suit.

Trustees did not disclose that they were considering potential litigation and should not have discussed compensation behind closed doors, according to Grimm's complaint.

The day after the Feb. 10 meeting, the board's attorney contacted Cotterell's representative and proposed terms for her to resign in return for about 10 months of salary, about $137,500, the suit states.

Under her contract, the maximum cash settlement for the board to end Cotterell's employment without cause likely would equal 18 months of pay, or about $247,500.

On Feb. 14, Cotterell gave the district a counter-proposal, including an explanation of her position and four potential claims she was considering filing against the district. The complaint did not provide details of that counter-proposal.

The board then met in closed session Feb. 17. According to the suit, the board discussed and rejected Cotterell's settlement offer and proposed compensation package.

The district also made a counter-offer, including a waiver to any claims the superintendent might bring against the district, the complaint states.

Bresee said there were several inaccuracies in the suit. He also disagreed that the board wrongly discussed compensation in closed session. There are times when a board may consider financial settlements in a closed session, he said.

Cotterell's contract specifically addresses the issue of a settlement if her contract is terminated without cause, he said.

To label something as potential litigation, the Brown Act requires a legal opinion that significant exposure to litigation exists, he said. He did not believe that existed at the time.

Bresee said the district will file a response to Grimm's court complaint within 30 days.

Rio trustees met again Feb. 24 and March 2, when trustees announced they had voted 3-1 to exercise the "no-cause" termination clause of Cotterell's contract. Trustee Tim Blaylock voted against the move, and Trustee Mike Barber, who also supported Cotterell, was absent.

Board President Eleanor Torres and trustees Henrietta Macias and Ramon Rodriguez voted in favor of the move. The vote came about three months after four new trustees were sworn in after being elected to the five-member board.

At a meeting last week, Blaylock told other trustees that he plans to bring forward proposals to increase public access regarding board business.

He, too, thinks violations have occurred in open and closed sessions over the past several months, including trustees taking action on issues in closed session that aren't adequately described on agendas, he said. Other trustees have disputed those claims.

It's not the first time a Rio school board has faced a lawsuit over alleged Brown Act violations after firing a superintendent. In 2003, Yolanda Benitez was fired in a 3-2 decision, with Macias as one of the majority votes.

Benitez later sued and won a large settlement from the district after courts ruled the board had broken the Brown Act.