DA backs claim alleging Gav board violated Brown Act

Steve Kinsella

The Santa Clara County District Attorney’s Office has supported allegations that the Gavilan College board violated Brown Act provisions in October of last year when it increased the president’s pay during closed session, but also confirmed the deadline had passed to invalidate the action.

Deputy District Attorney John Chase responded in a May 24 letter to the Hollister chapter of the League of United Latin American Citizens, which has accused the board of violating the open meetings law at its Oct. 26, 2011 meeting.

Chase wrote: “Indeed, the documentary evidence that you provided seems to support your claim that the trustees violated multiple provisions of the Brown Act.”

Chase acknowledged the Brown Act’s time limit had passed to rescind the approval – someone would have needed to submit a “cure and correct” letter to the board within 90 days of the meeting – but also vowed to examine it further.

“Because this is an important matter, however, we will make further inquiries to determine whether some alternate action by our office is appropriate,” Chase wrote.

LULAC in mid-May requested authorities to investigate the accusations regarding the special closed session. Trustees in the meeting voted 6-1 to approve the lucrative pay hike for President Steve Kinsella, who had been named a finalist for the chancellor job at West Valley-Mission Community College District. Hollister Trustee Tony Ruiz had the lone dissenting vote on Kinsella’s contract, reasoning that his prospective departure did not justify the raise during dire economic times.

The new contract increased Kinsella’s base salary on Jan. 1 from $234,090 to $255,090. His pay is set to reach $276,090 by 2015 – with no apparent cap – when he would also receive a $31,500 lump sum if he stays with the college until that point. Kinsella’s prior contract awarded him 3 percent annual increases until 2015.

LULAC’s Aurelio Zuniga, among local residents and organizations outraged after the announcement of Kinsella’s pay increase, headed the initial examination into the Brown Act violations.

As the organization pointed out in its investigative documents, the Brown Act prohibits government boards from considering salary increases in closed session, and meeting agendas must include brief descriptions about the discussion or action under consideration. The Gavilan board did, indeed, meet in closed session over the matter. And the meeting agenda failed to include mention of a compensation increase – instead listing “public employee performance evaluation” for the president and “public employee appointment.”

Chase supported LULAC’s claim that the college board violated those two provisions. He acknowledged a third allegation – special meetings as a whole are illegal settings for salary increases, as they require just 24 hours public notice – was not applicable because state legislators added the provision to the Brown Act on Jan. 1, after the meeting took place.

Chase said his office has been in contact with the Gavilan board’s attorney, who is preparing a response to the original request from LULAC. Gavilan spokeswoman Jan Bernstein Chargin did not immediately return a phone call.

Chase said it is possible for a less drastic remedy – a civil “declaration from a court that the conduct was wrongful” – and he pointed out that such an action could include requirements such as monitoring of closed sessions. In the meantime, he said his office will wait to see if trustees “correct it themselves.”

“It looks pretty clear,” he said of the violations. “We’ll wait to hear what the board says and see.”

The next scheduled board meeting is June 12.

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