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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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