The Partisan: Lawsuit accuses MPUSD of hiding the ball Records request seeks high school construction details

| OPINION

By Royal Calkins

Back when I was a full-time, weekly paycheck kind of journalist, I used to regularly hand out advice to local government bodies. One of the most important suggestions was aimed at agencies that had received a public records request from Monterey lawyer Michael Stamp.

In a nutshell, I urged city managers and county administrative officers and school superintendents to ignore the advice of their regular lawyers, the ones on the government payroll, after receiving a public records request. Why? Because most of them don’t know much about public records law. I recommended that the agencies contact public records experts, who were likely to tell them that Stamp was reading state public records law correctly and that they ought to give him what he wanted.

Unfortunately, the officials often listened to the house lawyers and invited Stamp to go to court. It was a terrible idea. Stamp was more than willing to sue because he almost always won. The agency involved would then be ordered to turn over the paperwork — and to pay Stamp’s fees. That was on top of whatever they were already paying their own lawyers. Stamp made a pretty good living beating the government lawyers. One got so frustrated that she called him a lizard.

Well, Stamp is mostly retired now but his wife and partner, Monterey lawyer Molly Erickson, carries on the family tradition. And, unfortunately for the taxpayers who pay all these legal fees, the Monterey Peninsula Unified School District apparently has forgotten my message from years ago. So, I predict that before long, the district will be cutting a check to the Stamp/Erickson firm.

Erickson last week filed a petition in Superior Court to require the district to respond appropriately to her repeated requests for public records stemming from the ongoing expansion of the football stadium at Monterey High School. The project is budgeted to cost $25 million. Look for that number to grow, however, partly because district officials do a fair amount of their work in the dark rather than under the light of public scrutiny. And then there are those legal fees, for the district lawyers and then for Erickson.

The documents Erickson’s clients want stem from the environmental impact study of the project, which is ready for public release. In her petition, she argues that district officials have intentionally delayed the release of the documents until after the Nov. 3 election because they fear that making the information public now would hurt the school board incumbents seeking re-election in the upcoming vote. The requested records focus on problems caused by new permanent lighting at the field, parking and traffic issues and other matters along with potential mitigation measures.

One school board candidate, Kevin Dayton, has tweeted that he strongly supports the lighting project and refers to lighting studies cited by project opponents as “junk science.” He also accuses project opponents of abusing California environmental quality statutes.

The records withheld in recent months “go to the heart of the school district’s responsibility to the taxpayers and the voters under the school district bond measures that the voters approved based on the claims of MPUSD,” Erickson wrote.  District officials promised that the  $217 million bond issue would be used primarily to modernize and repair district classrooms. A long, long list of projects barely mentioned athletic facilities.

District Superintendent P.K. Diffenbaugh responded to the lawsuit Tuesday, saying, “The district is unable to comment on pending litigation. We take the public’s right to access public records seriously and have endeavored at all times to comply with that right within the confines of the law.”

I also asked Diffenbaugh via email if he was aware of the law firm’s track record in such cases. He didn’t respond to that.

Perhaps I also should have asked if he was aware of the district’s law firm’s track record on public records. Not good. I’ve known the firm’s senior partner, Lou Lozano, for decades now and have never known him to turn over a public record until the requesting party — me, in many cases — puts up a fuss. I also could have asked Diffenbaugh if he remembered the time a federal court judge ordered Lozano’s entire firm to take special ethics training. The Lozano firm represents hundreds of school districts in California, including most districts in Monterey County.

Erickson’s client is a group known as Taxpayers for MPUSD Accountability, which includes a number of residents of the Monterey High neighborhood who are worried about the stadium expansion’s impact on parking and traffic and the general impact of taller and brighter lighting. On top of that, they fear that the improvements would lead to significantly more events at the field, creating additional traffic and glare problems.

Diffenbaugh emphasizes the safety aspect of the project. He says that too many athletes now share the football field and related facilities, creating many opportunities for collision and conflict.

The school board has never formally approved the project, but district officials have been quietly pushing it forward for the past year or so. They received some sort of waiver declaring it a critical project so they could continue putting the deal together administratively in the midst of the pandemic.

The district initially sought to avoid paying for an expensive environmental impact study and instead paid a consulting firm to prepare a “negative declaration,” a legal document proclaiming that impacts from the project weren’t significant enough to require a full environmental study. 

The negative declaration was scheduled to be the subject of a public hearing last fall but it was canceled the day after Voices of Monterey Bay raised questions about a seeming conflict of interest. The consulting firm that was paid $30,000 for the negative declaration was headed by the Monterey High baseball coach, who might have found it difficult to remain neutral no matter how pure his intentions might have been.

Public Records Act requests in California are generally supposed to be honored or rejected within 10 days. Erickson says she requested the records in August without success. She mentioned in her petition that she is still waiting for the district to respond to a public records request she made more than a year ago. She also has complained to the district about unexplained and possibly illegal redaction of paperwork that she was provided.

“The Public Records Act favors disclosure of public records,” Erickson continued. “The burden is on the public agency to disclose documents and justify any nondisclosure. Ambiguities are resolved in favor of disclosure. Allowing an agency to determine that documents that show the agency’s financial obligations and duties are to be kept secret would impermissibly shield MPUSD from public accountability.”

“To date, MPUSD has not released a single one of the records requested on August 20, 2020, and on August 28, 2020,” Erickson wrote. “MPUSD has delayed releasing the documents in violation of the CPRA (California Public Records Act.). Petitioner alleges that MPUSD has delayed and is delaying the release of the records in order to prevent the information in the records from influencing the election on November 3. The voting for the election began on October 2, 2020. when voters received their mail ballots. The voters deserve the information in the financial records in order to inform their vote. Public records are intended to inform the public for many reasons, including whether to return the incumbents to office or whether to vote for different governance.”

District records indicate that MPUSD has so far spent $1,239,000 on preliminary expenses related to the project. That includes $249,000 for paving, about $850,000 on work related to the actual stadium and football field and $129,000 on legal fees and related costs, or about 10 percent of the total.

Have something to say about this story? Send us a letter or leave a comment below.

SUPPORT NONPROFIT JOURNALISM

GET OUR FREE WEEKLY NEWSLETTER