Brown Act Trampled In NHUHSD’s Damage Control Frenzy

Friday, August 30, 2013
NHUHSD Superintendent Chris Hartley and four-fifths of the Board of Trustees at the June 26 meeting. KLH | Eye

NHUHSD Superintendent Chris Hartley and four-fifths of the Board of Trustees – Mike Pigg, Dana Silvernale, Dan Collen and Colleen Toste – at the June 26 board meeting. The seat on the right is that of Trustee Dan Johnson, who hasn’t attended the last two board meetings. KLH | Eye

Kevin L. Hoover

Arcata Eye Editor

ARCATA/McKINLEYVILLE – When the high school board met July 26 to discuss Trustee Dan Johnson’s plagiarized June 13 commencement speech, Board President Mike Pigg apologized for the delay. He said the board hadn’t been able to meet over the summer.

“We’re restricted by the Brown Act so we can’t even discuss it until we have a meeting,” chimed Trustee Dana Silvernale.

However, according to internal school district documents, the board had already spent lots of time discussing the controversial speech and what to do about it – just not in public.

A Public Records Act request for internal memoranda and public correspondence regarding Johnson’s speech yielded numerous e-mail exchanges between Northern Humboldt Union High School District (NHUHSD) boardmembers and staff.

The messages include discussion of the imbroglio and how to respond, frustration with Johnson over his delayed response and sniping among boardmembers.

A recurrent topic in the messages is keeping a lid on the matter and freezing out the news media. The exchanges are rife with urgent pleas among the trustees, encouraging each other not to respond to inquiries by reporters.

At no point in any of the dozens of messages do the school officials devote any discussion to the core issue raised by teachers, parents and other citizens – the glaring double standard in the way Johnson has been coddled and excused for his plagiarism, undermining teachers’ ability to credibly teach students that cheating is unacceptable and punishable.

The e-mail messages allude to undocumented phone calls, voice mail messages, text messages and apparent meetings among trustees and NHUHSD staff in which the growing scandal is discussed.

Much of the district business is conducted using personal e-mail accounts. For example, Pigg and Johnson both use non-district accounts, and The private accounts are listed in contact information on the district’s website

Any discussions of district business that may have taken place among trustees and staff using personal e-mail may not be available. There are suggestions among the newly revealed messages that such exchanges may well have taken place.

In formulating their responses to the plagiarism incident outside of public view, the Trustees may have violated the Ralph M. Brown Act, which prohibits doing public business in private.

The e-mails

On June 3, Trustee Colleen Toste wrote Pigg, Johnson and Arcata High School Principal Dave Navarre about details of speech length, content and the order in which the trustees would speak at the 2013 Arcata High School commencement.

The next day, Johnson wrote Pigg, Toste and Navarre back. In his message, he stated that he will “accept the class” on behalf of the board. He didn’t share details of his fateful address to students, but bristled at the four-minute limit on speech length that Navarre had requested.

Stated Johnson, “I will work for 4 min. Last year Dana got 15 min. It not fair we only get 4 min. Will do my best:).” [sic]

Though seemingly innocuous, the e-mail exchanges among a quorum of three of the board’s five trustees, who hold elected office, run counter to rules governing public meetings under the Brown Act. The Act requires meetings of the board to be publicly noticed.

States the Brown Act, “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”

The NHUHSD Board stated in a July 29 press release that “Mr. Johnson acted as an individual Board member” in making the speech.

But the messages show he had coordinated aspects of it in advance with Pigg and Toste during the online, non-noticed board meeting, then gave his commencement address June 13 as a representative of the board, accepting the class on its behalf.

‘You Are Not Special’

Johnson billed his speech as a personal letter he had penned to his daughter. It included, without attribution, verbatim sections of a speech titled “You Are Not Special” given a year earlier by teacher David McCullough, Jr. in Massachusetts.

The community buzz was immediate, and correspondence from citizens was soon to follow.

On Friday, June 21, citizen Nick Applemans wrote a letter to Pigg. “While listening to the speech, I thought it was quite clever,” Applemans wrote. “However, soon afterwards, I heard several of the graduates mentioning that they had heard the same address given to the Wellesley High School class of 2012 by David McCullough, Jr.”

Pigg shared the letter via e-mail with Trustee Dan Collen, Toste and District Superintendent Chris Hartley – another virtual meeting of a quorum of the board.

“Ya, I’ve had about a dozen people bring it to my attention at grad parties before we left,” Toste wrote back the same day. “So unfortunate, especially because he tried to pull it off as ‘his letter to his daughter.’ Thanks.”

By Monday, June 24, another letter had come in from Arcata High School English teacher JoAnne Moore. She describes her “horror” over the stolen verbiage. “What is sadly ironic is that many graduating students knew the speech was plagiarized because they had studied it in their AP class!” Moore wrote. “I was hoping by now this letter wouldn’t be necessary and that the situation had been rectified, however I’ve heard nothing about this issue. I look forward to hearing how this error is addressed – hopefully in a way that is comparable enough to offset the offense.”

As citizens clamored for action, the NHUHSD board’s meeting on the matter was still more than a month away.

‘The liberals are after him’

That week, requests for comment from the Arcata Eye and McKinleyville Press started coming in. The inquiries were sent to all the NHUHSD trustees, plus Hartley and Navarre. Hartley, who was vacationing in Germany at the time, forwarded an Eye inquiry to his secretary. “I think it wise for Dan to have some sort of response after board mtg,” Hartley wrote. “I thought Dan Collen was going to speak with Dan. Do you know if that happened?”

On Friday, June 28, Toste e-mailed Humboldt County Superintendent of Schools Garry Eagles, referring him to the Eye’s initial June 26 story on the plagiarism and asking his thoughts. “Should we seek advisement from a lawyer? Ignore it? Issue a statement?” she asks.

Replied Eagles, 12 minutes later, “I believe NO response from the board, neither individually (with one exception) nor collectively, is appropriate. This accusation of plagiarism reflects on Dan and no one else – not even the board, not even the district. It is a matter that he should handle on a personal level. Absolutely no statement from anyone is appropriate under the circumstances either than from Dan if he so chooses [sic], and I couldn’t be more strong in making this recommendation.”

The next day, Toste forwarded Eagles’ message to Pigg, adding, “FYI from an expert.”

That same day, Trustee Silvernale wrote Pigg and Hartley, noting criticism from citizens and media inquiries, and asking how to handle them.

“I wish you would let me respond on this one,” Pigg replied. “We don’t need 5 different comments running around out there to give the press to feed on. It is already bad enough.”

Silvernale thanked Pigg. “I don’t understand why so many people feel Dan, or anyone else for that matter needs to be publicly pilloried for an error in judgment,” she said.

On Monday, July 1, Pigg notified Hartley that he had issued a statement to the Eye and Press which left it up to Johnson to comment.

“I have also called Dan to get his feeling on it,” Pigg wrote. “He has left me a voice mail stating what’s the big deal and the liberals are after him.”

A July 5 letter sent to the trustees from AHS parent Stephen Cunha urges the board to “lead by example” and take action on the matter. Pigg forwarded the letter to Hartley, stating, “Chris, it is not getting any better.”

Replied Hartley, “Sorry it is continuing to be difficult. Any luck with Dan will he address the issues?”

‘So that Dan feels good about it’

On July 10, Toste wrote Pigg and Hartley, noting that “the Northern Humboldt community appears to be losing faith in its Admin and Board in our ability to take the best care of our kids and their education, and that’s absolutely terrible.”

Toste suggested that Johnson write a letter to the board, administration, AHS graduates and their families and cc it to the press. She offered sample verbiage, recommending that Johnson “apologizes that the choice of speech material and its presentation did not accomplish the intent of recognizing the accomplishments of the class of 2013.”

She wanted the plagiarism talk to end. “I would definitely NOT use the word ‘plagiarism’ at all – I recommend that, and please be sure he knows we are not asking him to say he plagiarized,” Toste said. “It was merely a choice of material. I will not support your asking him to apologize for plagiarism. As I have stated, this is a delicate issue that must be handled perfectly so that Dan feels good about it and so does everyone else involved.”

Johnson was not without supporters in the community. Citizen David Narum sent Johnson a letter replicating comments he had made on the Arcata Eye website which cite historical examples of plagiarism and state that “borrowing of speeches and turns of phrase is hardly anything new.”

States Narum, “I appreciate all you do for this community and I think others should chill the fuck out, quite honestly.”

Johnson forwarded the message to Pigg, who replied, “It is nice to have some other perspectives.”

But frustration over Johnson’s inaction was fracturing the board and stressing out staff. Toste, Pigg and Hartley were becoming openly exasperated and trying to find way to cajole Johnson into stepping up.

On July 15, Toste sent Hartley an e-mail message titled “Dan.” The message seems to allude to some undocumented, non-public exchange between Johnson and unknown others.

“I am wondering what your feeling is on Dan pushing us back until Wednesday now?” Toste asked Hartley. “I am seriously frustrated and have shared that with Mike, who stated simply, ‘What people say and do are two different things sometimes.’ Huh???”

Continued Toste, “Dan has had weeks to take action or even state what action he’s taking, yet he has been allowed by our president to dally; and unfortunately in this case, his continued dallying means the rest of us, including Admin, look worse and worse as time goes on. Did he happen to tell you why he keeps talking to his lawyer? How is this a legal issue?”

The next line of the above paragraph is blacked out, as are large portions of other e-mails.

In providing the documents, Hartley stated in a cover letter that some portions were redacted for being “not within the scope of your request.” He further mentioned “additional legal restrictions on the release of the redacted material.”

Last Friday, Toste was asked to provide an unredacted copy of the original July 15 e-mail message to verify the appropriateness of the redaction. Replied Toste, “I’m not easily locating the email you referred to, but I’m wondering if the ‘black out’ did not pertain to Dan’s speech.”

‘It is not just about him and his image’

Toste concluded the July 15 message to Hartley with a heavy dose of sarcasm directed at Johnson: “I would like to request that you contact him tomorrow and get what his ‘plan’ is, the ‘plan’ we would have by today, the plan he told Mike he would have two weeks ago… thank you.”

Silvernale was also asked to send original copies of redacted e-mail messages, but did not respond to or acknowledge that request. Nor has she responded to any other requests for comment.

On July 17, a district secretary answered a routine question from the McKinleyville Press about board compensation, reporting the public information that trustees get no pay. The message was cc’d to Hartley, who approved of the secretary’s action but cautioned that “if they ask any other questions of you please send to me before responding.” Added Hartley, “I have no response from Dan today…”

That day, more newspapers came out with letters condemning Johnson and the district’s inaction. With frustration already high within and outside the district, Hartley and Johnson met the following afternoon.

In a Friday, July 19 letter to Johnson, Hartley recaps their conversation. The tone is reminiscent of a parent patiently counseling an errant child.

“I do think a response from you is critical in helping the district through this situation. I realize you have to be primarily concerned about your own position but my main interest is what’s best for the entire district and without your response to this it is impossible for us to move forward.”

Hartley repeatedly implores Johnson to do something. “You are correct in that people will still find some level of fault but at least we can begin to move forward and have some resolution,” Hartley writes. “As I shared with you yesterday, the sooner the better as it is becoming increasingly difficult to even conduct district business without this issue being the focal point of most discussions.”

In a later, less diplomatically phrased message to Pigg, Hartley reported receiving a text from Johnson. Said Hartley to Pigg, “he will have a statement Monday by 5 p.m.???”

With Johnson’s statement supposedly in the works, Pigg notes that “I still think we need a statement that represents the school and other four board members and you.”

On Saturday, July 20 at 5:37 a.m., Hartley replies. “I agree and encourage you and the other members to speak to him on that, it is not just about him and his image.”

The Brown Act

It’s not known whether other trustees communicated with Johnson as Hartley requested. But doing so, especially amid multiple e-mails and phone calls flying around among trustees and staff, would raise further questions about Brown Act compliance.

A guide issued by the League of California Cities (LCC) details the inadvisable nature of chaotic communication between public officials. Runaway e-mail conversations can easily put participants at risk of holding a serial meeting.

States the LCC, “The serial meeting may occur by either a ‘daisy-chain’ or a ‘hub-and-spoke’ sequence. In the daisy-chain scenario, Member A contacts Member B, Member B contacts Member C, Member C contacts Member D and so on, until a quorum has discussed, deliberated or taken action on an item within the legislative body’s subject matter jurisdiction. The hub-and-spoke process involves, for example, a staff member (the hub) communicating with members of a legislative body (the spokes) one-by-one for a decision on a proposed action, or a chief executive officer briefing a majority of redevelopment agency members prior to a formal meeting and, in the process, information about the members’ respective views is revealed. Each of these scenarios violates the Brown Act.”

The NHUHSD staff/trustee communications appear to include the prohibited daisy-chain and spoke-and-hub meetings.

It’s not the first time the NHUHSD board has run afoul of the Brown Act. The board violated the state’s open meeting law on Dec. 1, 2011 when it held a meeting to interview candidates to fill a vacancy on the board. The district failed to post an agenda, as required by law, or inform the public and the media about the meeting.

In attendance at the un-agendized meeting were Trustees Mike Pigg, Dana Silvernale and Dan Collen. After interviewing candidates, they chose Colleen Toste to sit on the board and fill  a position that had been vacated by her mother, Sarie Toste, who had previously resigned and then passed away.

Former Superintendent Kenny Richards told the board at a meeting held Jan. 10, 2012 that the failure to post an agenda was an administrative oversight. Richards took responsibility for the mistake and apologized.

Johnson downplayed the significance of the mistake.

“The posting of the agenda is the most minusculer [sic], most ridiculous things I’ve seen in my life…” Johnson said at the Jan. 10, 2012 meeting. “If that’s how bad our community is that we have to have that on our front page of the newspaper, if that’s the worst thing that this district ever does, then we’re doing a pretty good darn job.”

The antagonistic apology

Finally, at 6:20 p.m. on Monday, July 22, Johnson e-mailed his feisty statement to district staff and all four other trustees. In it, he offered a qualified apology but ended with a shot at critics who displayed the “profound flaw” of intolerance.

The apology – mass e-mailed to all trustees and NHUHSD administration – set off a quick round of discussion among Johnson’s colleagues. Thirteen minutes after it was sent, Toste wrote Pigg, saying, “I thought he clearly stated in his angry voice mail last month that he had never heard of McCullough???”

“I don’t remember that,” Pigg replied at 6:41 p.m. “The speech had to be produce by somebody? Do still think we should produce a statement as a board?”

“You don’t??” Toste replied at 6:51 p.m. “He was adamant that Mike Burger gave him the idea and he had never heard of McCullough! Ask Marci. Also, I do NOT want the board to issue a statement. His is enough.”

At 7:59 p.m., Hartley mass e-mailed all the trustees and top NHUHSD staff a request and warning. “I recommend no one send this out or share until we have a set communication plan we can all agree to,” Hartley wrote. “If I can work on some options and discuss with you all tomorrow I would really appreciate it.”

The request seems to set up another serial meeting and Brown Act problem, an emergent issue Hartley raised in the same message. “Please remember we have to follow the Brown Act and cannot hold a group discussion in a ‘reply all’ structure,” Hartley wrote.

At 8:31 p.m., Toste suggested that Hartley get advice from boardmembers “and maybe a few trusted folks in the community to see what expectations are.” She advised against issuance of a board statement. “To me, since Dan has stepped forward, the Board and Admin should do as little as possible,” Toste wrote. “This started as Dan’s problem, not ours.”

The next morning, Tuesday, July 23 at 7:45 a.m., Toste reaffirmed her recommendation that the trustees maintain a wall of silence. Anticipating reporters’ inquiries and referring to Eagles’ previous advice, she wrote, “I think it’s really important, when Dan’s letter reaches the media, that we members – Mike, Dana, Dan Collen, or I not engage with the media at all… hopefully you agree with what we learned from the Garry – the best comment is ‘no comment.’”

At that moment, though, Hartley was wrestling with a new problem – the spiteful zinger with which Johnson had capped his apology.

In a 9:18 a.m. e-mail message, he told Johnson that the board would be issuing a public statement to accompany the one Johnson had sent in the previous night. “The goal with the press release will be that no board member should feel obligated to respond to a reporter with additional comments,” Hartley wrote.

Perhaps sensing the renewed round of criticism and questioning that Johnson’s jab at critics would set off, Hartley gingerly asked the tempestuous trustee to tone it down.

Wrote Hartley, “I recommend you modify the last paragraph to simply read, ‘I understand that for some in our community – no explanation or apology I can offer is good enough, but am hopeful we can move forward.’ (I understand your frustration but am hopeful this communication allows the district to move forward and have found taking the high road always works for the better).”

He also asked Johnson to replace a reference to “my daughter” with one referring to “all the graduates.”

Concluded Hartley, “I hope my recommendation on these possible changes is not to [sic] bold, I’m just trying to insure [sic] this communication is as effective as possible.”

Hartley’s advice wasn’t taken, as Johnson’s statement was eventually issued with the daughter reference and put-down to critics left intact.

Later that day, Pigg told Toste that the board should issue a statement, but Toste urged that Eagles be consulted. “Since none of us are experts on what should be done at this point, I recommended to Chris that he consult with Garry today on his plan, just as he has been doing over the last couple of weeks.”

Details of Eagles’ “plan,” if there is one, are not known.

At this point, preparation for that Friday’s board meeting intensified. It was originally scheduled as a study session for the coming school year, but the Johnson imbroglio eclipsed that, and the meeting was devoted solely to the plagiarism issue which had been festering for six weeks.

On Thursday, July 25, the day before the board meeting, Toste noted that morning’s Times-Standard story on the Johnson affair in a message to Hartley. “Well, so much for us not hitting the Times-Standard, huh?” Toste wrote. “I was just congratulated here at work for ‘making the front page of the paper!’ Great job on your comments, but what the heck are those comments from Dana? We need to get Garry back to one of our meetings to remind us again not to engage with the media.”

Apparently though, just one admonition a day wasn’t sufficient to keep the media away.

That afternoon, Toste wrote Hartley again with news that a Times-Standard reporter was trying to get a copy of Johnson’s statement. “I’m not calling back and hopefully the other members don’t either,” Toste wrote.

At last we meet

The next day, the NHUHSD board finally met and addressed the matter. Johnson did not attend, but all four of his trustee colleagues offered expressions of support for him as well as a desire to put the controversy behind them.

Citizens who spoke, though, were unified in their desire for the board to take some kind of action such as censure. Their principal concern was what some called poor behavioral modeling by Johnson and the board, undermining educational standards by example.

Afterward, at 5:43 p.m., Johnson shot Collen a recriminating barb. “Wish u would have had my back today I would have had yours(:” Johnson wrote.

At 5:43 p.m., Collen replied. “I did,” he wrote. “I spoke highly of you and your contributions to the board. If someone said differently it is not true.” Noting that “it was a difficult meeting,” Collen assures Johnson that “I hope you know how I feel about you as a friend and colleague.”

At 9:15 p.m., Silvernale thanked Hartley for forwarding the NHUHSD press release, noting, “Got your text as well.”

Double-standard double-down

The dichotomy between Johnson’s indulgent treatment and that which students – and not just NHUHSD students – might expect continued to haunt the trustees.

The next day, July 27, Collen, who serves as Humboldt State’s athletic director, received a letter from an HSU alumni, Mark Pardoe, taking him to task for suspending the university’s men’s soccer team for hazing last year.

“I am sure they were apologetic and remorseful over their actions with desire to avoid hazing in the future,” Pardoe wrote. “Yet, you as athletic director decided that despite their relative youth and lack of life experience that firm direct action was needed.”

Pardoe then cites a quotation in a Times-Standard story, in which Collen refers to Johnson: “He made a mistake – we all make mistakes – and he apologized for that mistake, and I hope we can all move on.”

“I am sure that last year’s members of the Humboldt State men’s soccer team would have loved to have the same opportunity that you are apparently extending to this trustee,” Pardoe observed. “I think your comment above does not deliver a consistent and perhaps not even fair message to our young people… I am concerned that the message that you are delivering to our local youth with your comment above is one that will confuse them and also lead them to lose some faith and confidence in our educational leadership.”

In a reply, Collen did not address the double standard. He offered Pardoe assurances that the board took the matter seriously, but put the onus on Johnson. “The failure of Trustee Johnson to not give attribution to the original speech writer was very unfortunate and the board was waiting for Dan to respond,” Collen said. “We all agreed that we wished Dan had apologized earlier.”

Asked Friday about the double standard between Johnson’s treatment and that which cheating students are likely to encounter, Toste said, “I will state that Board members are elected by the community, and then I will refer to #2.”

“No. 2” was a response to the second of three questions. It asked about why trustees wouldn’t comment on the Johnson scandal. Wrote Toste, “As a group, we received training earlier this year with regard to communication with the media that instructed us to refer to the superintendent and/or Board president to respond to inquiries. If each individual member speaks his personal opinion, especially on a controversial issue, you have the potential risk of the position of the Board and District not being communicated properly and mixed messages being sent to the community.”

McKinleyville Press Editor Jack Durham contributed to this story.

Download the NHUHSD’s e-mails and other documents provided in response to the Public Records Act request here.



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