DMUSD closed session meeting to discuss Play Outside’s CEQA comments on Heights’ school – Sierra Club comments ignored

I hope all of you are safe and healthy and remain that way.

Yesterday DMUSD noticed a special closed session Board meeting for today at 5:00 p.m. to privately discuss Play Outside Del Mar’s CEQA comments, and those of another organization.

Below is the text of a letter I sent this morning regarding the public illegally being excluded from the meeting.

I believe citizens have the ultimate responsibility to hold public agencies to the law – there is nobody else left to do it. While Play Outside’s mission is to save recreational play space for children and the community – and we prefer to spend our waking moments doing just that – we will not stand idle while DMUSD tramples fundamental and guaranteed public rights such as open meetings and transparency on a $55M publicly funded project that will have lasting impact on our community.

At the bottom, I provide links to information cited in my letter and to my earlier post on the Board’s earlier Brown Act violation.


7 April 2020

Gee Wah Mok, Board Clerk
Del Mar Union School District
11232 El Camino Real
San Diego, CA 92130
858.523.6114 fax

Dear Mr. Mok:

DMUSD has noticed another illegal closed to the public DMUSD Board meeting for April 7, 2020, to discuss the Heights’ school rebuild project.

By now, the Board surely knows the fundamental public rights created by the Ralph M. Brown Act (Brown Act). As a result, I bring to your attention that the Brown Act criminalizes intentional misconduct that excludes the public from meetings. Section 54959 states:

“Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter [the Brown Act], and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.”

Emphasis added.

The noticed meeting would violate the Brown Act, for two independent reasons.

First, the meeting violates the terms of the March 12, 2020 Brown Act unconditional commitment unanimously made by the Governing Board of Trustees (See Exhibit A). That commitment states that, should the Board desire to meet in a future closed session under 54956.9(d)(2), the Board will “(iii) not discuss theoretical legal exposure involving public works projects, based upon possible future site designs.”

The CEQA process has not been completed and the proposed project has not been approved by the Board. The meeting notice indicates the board intends to discuss theoretical legal exposure based upon actions relating to the site design that might or might not be taken, that might or might not be avoided, that might or might not be adjusted – exactly what the Board unconditionally promised not to do in closed session per item (iii) of the unconditional commitment. This type of weighing of choices in a public setting is precisely what the Brown Act describes must happen in a public setting. This is the fundamental role of the Board of a public agency.

The Board’s violation of the terms of its public commitment is an independent violation of the Brown Act that stands on its own. See 54960.2(d) (“Violation of this subdivision shall constitute an independent violation of this chapter, without regard to whether the challenged action would otherwise violate this chapter.”)

Second, neither of the two CEQA comments posted in the meeting agenda threatens litigation based upon existing facts and circumstances; therefore neither permits a closed meeting that excludes the public under 54956.9. While both are thorough and lengthy, that ought to be expected and encouraged in a $55M project using public funds. Comments are a way to identify and hopefully avoid CEQA problems and public concerns with the project.

Certainly that is the spirit in which the Play Outside Del Mar comments were submitted. Asking that an EIR be performed to benefit the community, children, and staff on the school campus is in no way a threat of litigation, and Play Outside has never otherwise threatened or even implied CEQA litigation against the District. Engaging in a closed session to discuss Play Outside’s CEQA comments is nothing but a subterfuge to shield the Board’s comments from open view and potential criticism by the public.

If receipt of public comments in CEQA were sufficient to justify a closed session board meeting, then every public agency in California would use the receipt of comments during CEQA as an excuse to deny the public its fundamental right to see the decisions of the agencies they created and evaluate the choices the agency is making with the public’s money. The Brown Act mandates that these Board choices – no matter how difficult they may be for the Board – shall be made in front of the Board’s constituents.

I am also perplexed by the Board ignoring detailed, lengthy, serious CEQA comments made by the Sierra Club (attached as Exhibit B), but instead singling out the comments of Play Outside Del Mar and those of the organization identified as Save the Field. How can it be that Play Outside’s comments – that do not threaten litigation – do justify a closed session, whereas the Sierra Club’s comments – that also do not threaten litigation – do not justify a closed session? Surely the irony does not escape you, that neither I nor Play Outside have ever sued anyone for a CEQA violation, yet our comments do justify a closed session under a “threat of litigation”; but the Sierra Club who sues all the time to protect substantial public rights under CEQA, submits comments and they do not justify a closed session under a “threat of litigation”?

This disparity of treatment suggests something else is afoot in your closed meeting.

Play Outside Del Mar has never threatened CEQA litigation either expressly or by implication, and it violates not only our rights but the rights of the public and our supporters to hear what you are saying about our organization’s CEQA comments. We deserve better than what happened on December 10, 2019 when it was clear in hindsight that the closed session was little more than a dress rehearsal to choreograph roles for the public session Board meeting a week later.

To summarize, the closed session violates the Brown Act for two independent reasons. First, it violates the Board’s unconditional commitment. Second, it is based upon future facts and circumstances that may or may not come to pass, and no litigation has been threatened, apparently by anyone.

In the last paragraph of my February 15, 2019 letter to you I noted:

“Public interest in the school rebuild remains intense. Public comments and criticisms continue to be made about the fluctuating site design – comments just like those alleged to have justified the illegal December 10 closed session. As a result, there is every reason to believe that the Board will schedule additional illegal closed meetings.”

It is unfortunate my prediction has turned out to be true.

The Brown Act is a fundamental and foundational public right in California. I urge you to reconsider excluding the public from the April 7 meeting.


John E. Gartman, President
Play Outside Del Mar

Our blog post on the earlier DMUSD Brown Act illegal meeting: Open Government – Getting DMUSD to Step up to the Plate

Play Outside CEQA comments (with new table of contents)

Sierra Club CEQA comments

DMUSD meeting notice

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