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    2024-05-15 Ellenberg Letter To Attorney Gregory Rolen Re Cease & Desist-Brown Act Violation

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    2024-05-15 Ellenberg Letter To Attorney Gregory Rolen Re Cease & Desist-Brown Act Violation

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    2024-05-15 Ellenberg Letter to Attorney Gregory Rolen re Cease & Desist-Brown Act Violation

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    2024-05-15 Ellenberg Letter To Attorney Gregory Rolen Re Cease & Desist-Brown Act Violation

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    of 2

    San Jose

    70 South First Street


    San Jose, CA 95113
    T. 408.286.9800
    F. 408.998.4790

    May 15, 2024 Steven A. Ellenberg


    sellenberg@hopkinscarley.com
    T. 408.286.9800
    F. 408.998.4790

    Via E-Mail: grolen@hbblaw.com


    Via First Class Mail

    Gregory J. Rolen
    Haight Brown Bonesteel
    555 South Flower Street
    Forty-Fifth Floor
    Los Angeles, CA 90071

    Re: CEASE AND DESIST: BROWN ACT VIOLATION


    Government Code Section 54960.2 Notice

    Dear Mr. Rolen:

    I represent the Office of the Santa Clara County Superintendent of Schools. This Cease and Desist
    Notice for a Brown Act violation is hereby submitted pursuant to Government Code Section
    54960.2. In addition to this notice being submitted to you as legal counsel for the Santa Clara
    County Board of Education, it will be submitted to Maimona Afzal Berta, President, and Don
    Rocha, Vice President, as provided in Section 54960.2.

    For the May 15, 2024, meeting of the Santa Clara County Board of Education, two closed session
    items have been included in the agenda that violate Government Code Section 54954.5(e). Those
    two agenda items are:

    B. Public Employee Discipline/Dismissal/Release pursuant to


    Government Code section 54957: 1 case

    C. Public Employee Discipline/Dismissal/Release/Complaint


    pursuant to Government Code section 54957: 4 cases

    As provided in Government Code Section 54957, legislative bodies may meet in closed session
    only for the purpose of considering the discipline, dismissal, or release of its own employees, or
    to hear a complaint against one of its employees by another person or employee. The Santa Clara
    County Board of Education does not have any employees and it is not authorized by either the
    California Constitution or the Education Code to employ certificated or classified employees. By
    law, it is the Santa Clara County Superintendent of Schools who is exclusively authorized to
    employ certificated and classified employees.

    4881-5091-5518.1
    Gregory Rolen
    May 15, 2024
    Page 2

    Moreover, the California Attorney General has determined that county boards of education are not
    authorized to employ employees and that all certificated and classified employees are employed
    in county educational programs by the county superintendent of schools. 72 Ops.Cal.Atty.Gen.
    25 (1989). Consistent with this opinion, the Attorney General determined that a county board of
    education may not meet in closed session to discuss collective bargaining because it is not a “public
    employer” under the Educational Employment Relations Act. 85 Ops.Cal.Atty.Gen. 77 (2002).
    By extension, this Attorney General opinion means that county boards of education may not meet
    in closed session to consider any employment issues.

    You and the members of the Santa Clara County Board of Education are now on notice that the
    two previously referenced closed session agenda items violate the Brown Act. There is no lawful
    basis for the County Board of Education to meet in closed session to consider any issues related to
    employees it does not have. Therefore, this letter constitutes a demand that the Santa Clara County
    Board of Education not meet in closed session to discuss employment matters. Further, I draw
    your attention to the potential statutory consequences for Board members knowingly attending a
    closed session in violation of the Brown Act.

    Please confirm that the Santa Clara County Board of Education will not be discussing employment
    issues in closed session on May 15, 2024, and thereafter, and that these two closed session agenda
    items will be withdrawn.

    Sincerely,

    HOPKINS & CARLEY


    A Law Corporation

    Steven A. Ellenberg

    SAE

    cc: Maimona Afzal Berta, President (via email Mberta@sccoe.org)


    Don Rocha, Vice President (via email Drocha@sccoe.org)

    4881-5091-5518.1

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