NORMAN CLEVENGER v. THE BOARD OF EDUCATION OF THE SANTA YNEZ VALLEY UNION HIGH SCHOOL DISTRICT (2010)

The Protective Order

Clevenger contends he was entitled to initiate discovery to compel Board members to answer questions about the unrecorded closed deliberation session to confirm that they did not consider complaints or charges against him.   He suggests that the content of the closed session is not entirely confidential, and consequently the trial court erred by issuing the protective order.   We disagree.

Clevenger's arguments were essentially rejected in the Kleitman case.   There the Court of Appeal held that the “Brown Act does not provide for disclosure of the personal recollections of members of a legislative body with regard to the proceedings held in an unrecorded closed session.”  (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 326.)   A school board is a legislative body within the meaning of the Brown Act. (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 95.)

In the trial court, Clevenger claimed that he was entitled to discover “what the discussion is that the board took in closed session.”  (Italics added.)   But such discussions are confidential under the Brown Act, and this type of discovery would expose the Board members' thought processes during deliberations.   In Kleitman, the Court of Appeal held that a “trial court cannot compel disclosure of the personal recollections” of the decision makers “with respect to a closed session, without improperly reading into the Act a discovery procedure which would violate the confidentiality of closed sessions which is inherent in the Act.” (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 327.)   The Legislature has taken steps to protect the confidentiality of these closed sessions from the type of broad based discovery typically available in civil cases.  (County of Los Angeles v. Superior Court (2005) 130 Cal.App.4th 1099, 1106 [“closed session minutes are not subject to discovery in a civil case”].)

Clevenger claims that the trial court's discovery order was unreasonable.   But the Board's objections to the depositions Clevenger sought were meritorious.   The Board members have a duty not to discuss the content of their deliberations.   Section 54963, subdivision (a) states, in relevant part, “A person may not disclose confidential information that has been acquired by being present in a closed session․”  Moreover, courts are also prohibited from compelling board members to disclose their discussions during their deliberation sessions.  (City of Santa Cruz v. Superior Court (1995) 40 Cal.App.4th 1146, 1153-1154.)   Discovery orders are “reviewed under the abuse of discretion standard.”  (County of Los Angeles v. Superior Court, supra, 130 Cal.App.4th at p. 1104.)   Clevenger has not shown an abuse of discretion.

Burden of Proof

The Board contends an affirmance also is required because Clevenger had the burden of proof and he presented no evidence in the trial court to show that it committed any wrongdoing.   It claims Clevenger relies solely on speculation.

Clevenger claims the burden of proof was shifted to the Board to show what it considered in its closed session.   He argues that because the Board failed to present evidence on this issue, we must reverse the judgment.   We disagree with Clevenger's analysis.

Clevenger is speculating that the Board considered inappropriate matters in its closed session and essentially deceived him.   But the party claiming that his adversary is guilty of wrongdoing has the burden of proof on that issue.   (Evid.Code, § 520;  Lane & Pyron, Inc. v. Gibbs (1968) 266 Cal.App.2d 61, 67.)   In addition, because the Board is an official body, absent evidence to the contrary, there is a presumption “that official duty has been regularly performed.”  (Evid.Code, § 664;  People v. Martinez (2000) 22 Cal.4th 106, 125;  Doran v. Burke (1953) 118 Cal.App.2d 806, 807.)   This presumption “ ‘affect[s] the burden of proof” [citation] meaning that the party against whom it operates-here, [Clevenger]-has ‘the burden of proof as to the nonexistence of the presumed fact.’ ”  (Martinez, at p. 125.)

The Board's adopted minutes do not mention that the Board considered any complaints or charges.   The only action mentioned was a vote not to renew Clevenger's contract and to reassign him as a “certificated” employee.   Clevenger suggests that this summary was incomplete.   But it was his burden to prove that claim.  (Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, 78-79.)  “ ‘The special trustworthiness of official written statements is found in the declarant's official duty and the high probability that the duty to make an accurate report has been performed.’ ”  (Id. at p. 79.)  “[T]he law presumes good faith action by administrative decisionmakers.”  (California Teachers Assn. v. Butte Community College Dist. (1996) 48 Cal.App.4th 1293, 1308.)

Moreover, where a plaintiff has only speculation to support a claim of Board misconduct, shifting the burden of proof would be inappropriate.   It would force Board members to disclose the content of their executive session to refute an unproven misconduct allegation which would undermine the Brown Act and distort the deliberative process.   The act intended the Board to have “free and candid discussions of personnel matters.”  (Fischer v. Los Angeles Unified School Dist., supra, 70 Cal.App.4th at p. 96.)   But “ ‘[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances ․ to the detriment of the decisionmaking process.’ ”  (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1340-1341.)   If mere accusations could force decision makers to testify about their thought processes in deliberation, the closed deliberation session would become superfluous.   Plaintiffs would invariably use discovery as fishing expeditions to expose every idea brought out in deliberations.   The result would be that Board members who once had the right to freely deliberate would now be intimidated and forced “to operate in a fishbowl.”  (Id. at p. 1340.)

Clevenger argues that the trial court erred by not weighing the need for preserving confidentiality against his showing of the necessity for disclosure.  (Evid.Code, § 1040, subd. (a)(2).)   But in Kleitman, the Court of Appeal ruled that such balancing is prohibited under the Brown Act because the confidentiality of the closed session is absolute under state law.  (Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 335, fn. 9.) Clevenger claims the Kleitman court erred.   We disagree, but even if he is correct, the result does not change.   There may be cases where a burden shift is appropriate based on a proper showing or where discovery of closed session information is required by federal law.  (Kaufman v. Board of Trustees (C.D.Cal.1996) 168 F.R.D. 278, 280 [board's Brown Act confidentiality claim overruled in teacher's title VII action (42 U.S.C. § 2000e-5) ].)   But this is not such a case.

Failure of Proof

In his mandamus petition, Clevenger alleged that the Board “discussed specific complaints and charges against him in closed session” in violation of the Brown Act. The Board denied these allegations in its answer, placing these facts at issue.   Where there are disputed facts about the Board's actions that are not found in the administrative record, the mandamus petitioner must go to trial on those issues.  (Moreno v. City of King, supra, 127 Cal.App.4th at pp. 21-23;  Mola Development Corporation v. City of Seal Beach (1997) 57 Cal.App.4th 405, 411, fn. 3;  see also Lotus Car Ltd. v. Municipal Court (1968) 263 Cal.App.2d 264, 268[“[W]hen a question of fact is raised by an answer to a petition for writ of mandamus the matter is heard in the same manner as any other trial”].)

But at the hearing on his mandamus petition, Clevenger did not testify, he called no witnesses, and the trial court said it was “surprised there was no request for any kind of testimony․”  Clevenger presented oral argument, but that is not a substitute for proving facts.  (Moreno v. City of King, supra, 127 Cal.App.4th at pp. 21-23;  Lotus Car Ltd. v. Municipal Court, supra, 263 Cal.App.2d at p. 268.)

This evidentiary omission is critical because Clevenger is now suggesting that Van Leuven's February 16th letter was not credible, was not a true rescission of the February 14th letter, that the February 14th letter expressed the real agenda, and that he was misled.   But his claims required evidentiary proof.

Clevenger claims the protective order impeded him from proving facts.   But it only prohibited discovery about what was said in the two-hour closed session.   It did not prevent Clevenger from otherwise discovering facts to support his hidden agenda theory, or requiring Van Leuven to testify about why he changed his position on February 16th.  (City and County of San Francisco v. Superior Court (1975) 13 Cal.3d 933, 936.)   Clevenger could have requested that the closed session minute book, which lists the “topics discussed” by the Board in the closed session, be produced for an in camera inspection by the trial court. (§ 54957.2, subd. (a);  Kleitman v. Superior Court, supra, 74 Cal.App.4th at p. 333.)   If he believed he was misled, he could have testified.   Had he done so, and had the evidence exposed improper conduct, he would have been in a better position to claim that discovery should be expanded and that inferences should be drawn against the Board.   Clevenger cites Moreno v. City of King, supra, 127 Cal.App.4th 17, 22, but there the mandamus petitioner presented testimony to establish a Brown Act violation, and, unlike here, the city did not object to testimony about what happened in a closed session.   By contrast, here the trial court properly found that Clevenger did not prove “that the Board actually considered any specific charge or complaint in contravention of the Brown Act.”

We have reviewed Clevenger's remaining contentions and conclude he has not shown error.

The judgment is affirmed.   Costs on appeal are awarded in favor of the respondent.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

Hathaway, Perrett, Webster, Powers, Chrisman & Gutierrez, Robert A. Bartosh, Paul D. Powers for Plaintiff and Appellant.

Hall, Hieatt & Connely, LLP, Clayton U. Hall, Molly E. Thurmond for Defendant and Respondent.