David Lang’s “Brown Act” depositions (Jan and Feb 1998)


From the ‘Vine 11, October 12, 1998

THE REORGANIZATION BLUES

     This issue of the ‘Vine presents more information regarding our district’s infamous July, 1997, “reorganization.” Trustee Lang, in his depositions of January and February ’98 excerpted here, explains that, in the months preceding the July meeting, the issue of eliminating the “chair” model at IVC in favor of the “dean” model had not been discussed by the trustees and that the body had neither authorized nor accepted studies or materials from staff, including administration, regarding that kind of administrative change.
     But, as we saw in the last issue of the ‘Vine, according to former VP Bob Loeffler, “In May of 1997, during an executive meeting of the three Vice Presidents and interim President Mathur, Mathur directed Vice President Burgess to develop a plan for the reorganization of the administrative structure of the college.” According to Loeffler, “Mathur stated that he wanted Vice President Burgess to develop a plan to institute a ‘Dean Model’ for the College.” Further, “Mathur directed…Burgess to calculate the cost attendant to a Four-Dean Model and a Five-Dean Model as compared to the costs associated with the Chair Model.” I have included the actual report of the latter calculations in the pages that follow. They do not seem to support Mr. Williams claim, made two months later, that the elimination of the chair model would save the district $600,000. Quite the contrary.
     When Burgess, then the VP of Instruction, was given these instructions, he naturally proceeded to discuss the matter with Instructional Council at the first opportuntiy, May 13. The IC unanimously recommended that the planning process to develop and implement this kind of massive reorganization be put off until the fall, when consultation with faculty, students, et al., would be possible.
     Mathur responded to the situation by endorsing the recommendation—deceptively, it seems—and then issuing Burgess a formal reprimand for failing to keep the “Dean Model” business confidential, among other sins. I have included the reprimand letter in this issue. (Later, Mathur was compelled to withdraw the reprimand, owing in part to his failure to grasp the facts of Burgess’ conduct.)
     As we saw in the last issue, the reorganization that was adopted on July 16 was one of the plans that Burgess had developed at Mathur’s direction. How, one might ask, does that fact square with the fact, noted by Lang, that the board never authorized a study of administrative changes of this kind? Inquiring minds want to know.
     As Lang explains, the first he heard about the elimination of the Chair Model in favor of the Dean Model was Williams’ notorious July 11 memo, in which he explains that the “performance of some chairs has fallen short of the expectations for their position.” (Translation: the goddam chairs won’t stop complaining about us.) I have included that letter, here, too.
     Clearly, there’s a weasel in the woodpile.

LANG’S DEPOSITION: EXCERPTS

            The man asking the questions is attorney Bill Shaeffer. Dave Lang, of course, is the witness. The district’s Spencer Covert is Lang’s counsel. Wendy P and Roy B were present. --The editor.

Q         …to your knowledge, did you receive any documents from the district or other board members prior to the board meeting on July 14, 1997 regarding a reorganization or a change from the…chair to the dean models other than Mr. Williams’ memo?
A         Not to my recollection.
Q         And I take it if you had received such information, you would have produced it?
A         Correct.
Q         Prior to your receipt of this July 11, 1997 letter, had you discussed with any other board member the pros and cons of a dean model as opposed to a chair model?
A         As I said earlier, the only person that I might have had a conversation with about this was Trustee Heuter, to the best of my recollection.
Q         Prior to July 14, 1997, were there any other board meetings at which time the topic of replacing the chair model with the dean model was discussed?
A         Not to my recollection.
Q         Prior to July 11, 1997, had you received any written materials from the district staff regarding the pros and cons of a dean or department chair model?
A         Not to the best of my recollection.
Q         Prior to July 11, 1997, had any district staff member made a presentation to the board or individual board members regarding the merits of lack of merits of a dean and department chair model?
A         No, none that I recall.
…..
Q         …Now, prior to July 11, 1997, had the faculty presented to the board their observations or desires regarding a dean or a department chair model?
A         No. That was one of my objections to…the action that was taken…I felt that we—the board—did not have enough input from other shared-governance groups.
Q         And who would those shared-governance groups be?
Q         It would certainly include the faculty; certainly include the Senate, Academic Senate; input from Associated Student Government.
Q         Anyone else?
A         Faculty Association.
Q         Why do you believe that these entities or groups were excluded from the decision process?
MR COVERT: Objection. Calls for his mental process and is irrelevant and immaterial. I instruct the witness not to answer.
Q BY MR. SHAEFFER: Well, as of July 11, 1997, why do you believe these various groups were exluded from the decision process?
            MR COVERT: Same objection. [I] instruct the witness not to answer.
Q         Did you attend any board meeting where the faculty or faculty representatives presented their view on the dean and department chair models prior to July 16, 1997?
A         No.
Q         Did you receive any correspondence from the district which included or outlined the views on the dean and chair models as presented by the faculty?…
A         No.
Q         Prior to July 16, 1997, did you receive any correspondence from the district, including its staff and faculty, which represented or summarized the viewpoints of the Academic Senate?
A         No.
Q         Who do you believe was the primary advocate of the department chair model?
            MR. COVERT: Objection. Calls for his mental process. I instruct the witness not to answer because it’s irrelevant and immaterial.
Q by MR. SHAEFFER: Has anyone told you who the primary advocate is for the change from the chair model to the dean model?
A         No.
Q         Prior to July 16, 1997, did you attend any board meeting at which time the board authorized the staff to prepare a study comparing the pros and cons of a dean model?
A         No.
Q         Prior to July 16, 1997, had you received any correspondence or any documentation explaining a proposed dean model?
A         Other than this letter?
Q         Correct.
A         No.
Q         Prior to July 16, 1997, did the board authorize any type of study to determine what type of personnel assignments or changes would be necessary to implement a dean model?
A         No. The board as a whole didn’t. It took no such action.
Q         I take it you never participated in those types of activities?
A         Right. The board as a whole did not authorize any such study.
Q         When were you first advised that a dean model, as opposed to a chair model, was supported by one or more board members?
A         This letter would have really been the first indication of that that I would have received.
Q         Prior to July 11, 1997, do you know what the state of the chair model or chair proposal was?
MR. COVERT: Objection. Vague and ambiguous.
            THE WITNESS: Yeah, I need you to be a little bit more explicit.
Q         …Prior to you receipt of this July 11, 1997 memo, did you have any information which generally described how the dean model would be implemented at your college?
A         No. At Irvine Valley College, actually, I represent the district, so…
Q         Well, the district. Prior to July 11, 1997, did any other board member tell you that they had been presented with a summary or an outline of what the dean model would be?
A         No.
Q         When you recieved your memo of July 11, 1997 from Mr. Williams, what did you expect would occur within the district to implement or not implement the dean model?
MR. COVERT: Objection. Irrelevant and immaterial; that inquires into his mental process and is irrelevant. [I] instruct the witness not to answer.
Q BY MR. SHAEFFER: Would you characterize the result of the July 16, 1997 meeting as a major reorganization of the district?
A         Yes.
…..
Q         Why did you believe there was a Brown Act violation on July 16th, 1997[—one] that caused you to leave the board meeting?
            MR. COVERT: I’m going to instruct the witness not to answer as to anything that was said in the closed session on July 16th, 1997 as being confidential.
Q BY MR. SHAEFFER: Do you want me to restate the question?
A         No, I understand the question. I guess what I’m trying to determine is what I can say in light of my cousel’s recommendation not to divulge discussions that occurred for the period of time that I was in that meeting.
…..
Q         …Now, independent of whatever was said or done in the closed session on July 16th, 1997, why do you believe there was a Brown Act violation?
A         I believe that the subject of reorganization is one that should be discussed in a public meeting rather than a closed session.
…..
Q         Do you believe a majority of the board—comprising Frogue, Williams, Fortune, and Lorch—had prearranged the vote on the reoganization issue, including its particulars?
            MR. COVERT: Objection, as it calls for the mental processes of this witness, but you may answer if you have a belief.
            THE WITNESS: I have no proof that that occurred.
Q         All right. Do you believe it occurred?
            MR. COVERT: Objection; irrelevant and immaterial; also calls for speculation. You can answer that. I’m making the objection for the record.
            THE WITNESS: I understand. Certainly the memo that was faxed by Trustee Williams on the 11th dealt with that subject, in my view, in an inappropriate way. That by itself certainly seems to me to have been a signal being sent out to all of the trustees. And I think it may be possible that he spoke with members of the board that he felt closest to relative to this subject.
…..
Q         All right. On the last page of your September 3rd, ’97 letter, you identify the other board members. Did you sent a copy of your letter to them?
A         (Witness reviews the document.) I sent a copy to everybody that I cc’d on this list.
Q         Did you receive any verbal or written response from board members Frogue, Williams, Fortune and/or Lorch as a result of your September 3d, ’97 letter?
A         I received no written responses from the other board members.
Q         Did you receive any verbal comments from them?
A         Yes.
Q         I take it they were annoyed?
A         I think that’s a fair assessment.
Q         All right. Now later on in your letter, you state, “Although Mr. Williams preceded his further discussion of the district and colleges administrative model by naming certain personnel for reassignment effectively eliminating the chair model that was in effect at one of the district’s colleges and transferring personnel within the district and at each college, I believe this action was a thinly veiled attempt to skirt the Brown Act under the guise of a personnel decision.”
            Can you tell me generally what you are referring to in that comment?
A         (Witness reviews the document.)
MR. COVERT: Again, I would instruct the witness not to answer with respect to anything occurring in that closed session or any other closed session.
            THE WITNESS: Okay.
            MR. COVERT: And then, for the record, I would object in that it inquires into the mental processes of Mr. Lang as a trustee, but you may answer that question.
            MR. SHAEFFER: And just for purposes of this deposition, your counsel is not waiving the legislative privilege, so—
            THE WITNESS: Okay.
            MR. COVERT: And for the record, so stipulated that we have that understanding.
            MR. SHAEFFER: Right, because that will make it a lot easier when we get into the next stuff.
            THE WITNESS: My understanding of the Brown Act is that in closed session, the board can discuss specific personnel matters. However, when it comes to a broad restructuring of the district, I know of no exception under the Brown Act that would cover that, which is why I felt that it should have been a matter for public discussion.
Q BY MR. SHAEFFER: do you believe a majority of the board took this closed session approach to avoid the public criticism that was generated as a result of their July 16th, 1997 action?
            MR COVERT: Objection: irrelevant and immaterial, not designed to lead to the production of relevant evidence; also calls for speculation.
Q BY MR. SHAEFFER: You may answer.
A         I believe so.
Q         You next state, “None of the appointed administrators nor other shared governance groups were apparently consulted before actions were taken, resulting in reassignments and newly delegated responsibilities that made no rational sense.”
            Okay. First of all, what information do you have that formed the basis of your comment that none of the appointed administrators nor the shared governance groups were consulted regarding the actions taken?
A         It would have involved conversations with members of administration that were involved in the development of the model by which the reassignments took place.
Q         Can you explain that more for me? Are you saying that some administrators presented some proposals to the board?
A         No.
Q         Okay.
A         Um—
            MR COVERT: Objection; there is no question pending.
            MR SHAEFFER: Well, let me have your answer reread.
            (Record read as follows:
“A       It would have involved conversations with members of administration that were involved in the development of the model by which the reassignments took place.”)
            MR. COVERT: And he answered no.
Q BY MR. SHAEFFER: So you’re saying that these conversations occurred after the board action of July 16th, 1997?
A         Correct.
Q         And in those conversations, the administrators said, in essence, “This is the action taken by the board, now these are the problems we’re having implementing this action”?
A         No, not exactly.
Q         Okay. Did they tell you, “We were not consulted, individually or collectively, by anyone prior to the board’s action of July 16th, 1997”?
A         Okay. Let me go back. Let me think about this for a minute.
            I was again made aware by a member of the administration that Mr. Mathur had asked for information about what a dean model at Irvine Valley College might look like subsequent to the July 16th meeting, and that model was the one that apparently was adopted by the board majority.
Q         When did you have this conversation with this administrator?
A         I don’t recall the exact date.
Q         Was it before or after July 16th?
A         After.
Q         And this administrator told you that he had been contacted by Mr. Mathur and asked—what?—to prepare a proposed model or what?
A         Well, I’m trying to recall exactly what—how the conversation went. And it was some time ago. But apparently the model that was adopted or the model that was utlimately adopted, the dean model at Irvine Valley college and the assigment of responsibilities that occurred under that model was based on information that Mr. Mathur received from members of the administration at Irvine Valley Colege.
Q         Can you tell me who the administrator is that told you the board action was based on a model and assignment that had been prepared by this administrator at the direction of Mathur?
A         I prefer not to answer that question.
Q         All right…Did you approach this administrator or did the administrator approach you with this information?
A         I recall—well, to the best of my recollection, it was based on my inquiry, my subsequent inquiry.
Q         All right. So you negotiated the contact?
A         Yes.
Q         Why did you conduct this inquiry?
MR COVERT: Objection; inquires into the mental process as well as consideration of the thought processes and material considered; I instruct the witness not to answer.
Q BY MR. SHAEFFER: Did you—
MR COVERT: Also object on the grounds it’s not designed to lead to the production of relevant information.
Q BY MR. SHAEFFER: …When you conducted your inquiries, did you interview more than one administrator or just one administrator regarding his or her knowledge of the development of the model and assignment?
MR COVERT: Same instruction.
Q BY MR. SHAEFFER: All right. You next state, “Further violations of the Brown Act include discussion of specific agenda items in closed session that are on the open session calendar.” Was that comment directed both to the July 16th, 1997 reorganization and the permanent appointment of Mr. Mathur as IVC president?
…..
A         No, I think that particular phrase was intended to incorporate other discussions that may have occurred where the board was perhaps not being as circumspect as it should be in closed session discussions.
Q BY MR. SHAEFFER: What do you mean by that?
MR. COVERT: Objection; instruct the witness not to answer based upon the Brown Act privilege.
Q BY MR. SHAEFFER: All right. These concerns you just mentioned with respect to circumspection, do those apply both to the Mathur permanent appointment and the July 16th, 1997 reorganization?
A         In my opinion, yes, as I state in my letter.

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