Los Angeles Community College District (Watts) (PERB 0388E)

STATE 	OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
HOWARD 0. WATTS,
Complainant
V.
LOS ANGELES 	COMMUNITY COLLEGE
DISTRICT,
Respondent.
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) 	Case No. LA-PN-34
PERB Decision No. 	388
June 	29, 1984
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Appearances: 	Mary L. Dowell, Attorney for 	the Los Angeles
Community College 	District.
Before Tovar, 	Morgenstern and Burt, Members.
DECISION
MORGENSTERN, Member: 	This case 	is before the Public
Employment Relations Board 	(PERB or Board) 	on exceptions 	to the
proposed decision of an Administrative 	Law Judge 	(ALJ) 	filed 	by
the Los Angeles Community College District 	(District). 	The ALJ
found 	that 	the 	District 	violated 	the public 	notice 	provisions,
subsections 3547(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA),'1 by denying Complainant Howard Watts,
1EERA 	is codified 	at Government Code 	section 	3540 	et
seq. 	All 	references herein are 	to 	the Government Code unless
otherwise 	indicated.
Subsections 3547(b) 	and 	(c) 	provide as follows:
(b) 	Meeting and negotiating 	shall not 	take
place 	on any proposal 	until 	a 	reasonable
time has 	elapsed 	after 	the 	submission of 	the
proposal 	to enable 	the public 	to become
'
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informed 	and 	the public 	has 	the 	opportunity
to express 	itself 	regarding 	the 	proposal at
a meeting 	of 	the public 	school 	employer.
(c) 	After 	the public has had 	the opportunity
to express 	itself, 	the public school
employer 	shall, 	at a meeting which 	is open
to the public, 	adopt its 	initial proposal.
a member 	of 	the public, 	an opportunity to address 	three
collective 	bargaining 	initial 	proposals which were 	on 	the
agenda of a meeting 	of the District 	board 	of 	trustees. 2
For 	the reasons discussed herein, 	we 	reverse 	the ALJ's
proposed 	decision and dismiss 	the complaint.
FACTS
Pursuant 	to EERA 	section 	3547 	and PERB rule 	37000,3 the
District 	adopted 	a 	Collective 	Bargaining 	Initial 	Proposal
Procedure. 	The District's 	procedure provides that the public
shall have an opportunity 	to 	respond 	to 	initial 	proposals 	of 	an
exclusive 	representative 	or 	the 	District 	at 	the 	board 	meeting
following 	the meeting 	at which 	the 	proposals 	are 	presented 	as
2Watts 	filed no exceptions 	to 	the ALJ's 	dismissal 	of his
alleged violation of subsection 3547(a). 	Therefore, 	that
matter 	is not before us.
Subsection 3547(a) 	provides:
All 	initial proposals 	of 	exclusive
representatives 	and 	of public 	school
employers, 	which relate to matters within
the scope of representation, 	shall be
presented 	at a public meeting 	of 	the public
school 	employer 	and 	thereafter 	shall be
public records.
3PERB 	Regulations 	are 	codified 	at California
Administrative Code, 	title 	8, 	section 31001 et seq. 	At all
N	2

times relevant to this case, 	PERB rule 37000 provided, 	in
pertinent part, 	as follows:
The Board 	urges 	all public 	school employers
to promulgate a 	local policy to 	implement
Government 	Code 	section 	3547 	. . . .
Effective 	September 	1982, 	rule 37000 was 	recodified as 	rule
32900 and now provides, 	in pertinent part, 	as follows:
EERA 	employers 	shall 	promulgate 	a 	local
policy 	to 	implement 	section 	3547 	. . . .
information 	items. 	The District procedure 	further 	provides
that 	its 	rules of decorum 	(2501 	and 2502) 	apply to public
response 	to collective bargaining 	initial 	proposals.
At 	issue 	in this case 	is District rule 2502.11 which, 	at
the time 	the events at issue occurred, 	provided as 	follows:
Withdrawal of Privileges. 	Speakers or 	other
persons who are 	in attendance 	at a meeting
of 	the 	[b]oard 	who 	violate 	any of 	the
provisions 	of 	this Article 	V may be denied
the 	opportunity 	to 	attend 	[b]oard 	[m]eetings
or 	to 	speak 	to 	the 	[b]oard 	providing notice
of 	this 	rule 	is 	first communicated 	to 	the
person.
Following 	such notice, 	any 	speaker 	or member
of 	the 	audience whose conduct continues 	to
violate 	any provisions 	of 	this Article may
be directed 	by 	the 	chair 	to cease 	such
conduct or 	speech. 	After 	a warning 	from the
chair, 	any offending 	speaker 	or 	participant
who continues 	to violate 	any provisions 	of
this Article will be 	subject 	to 	removal 	from
the podium or 	audience 	and 	will 	forego
future 	opportunity 	to 	speak 	before 	the
[b]oard 	for 	a period of one month. 	Upon a
second 	such offense, 	within 	the 	same year,
the 	speaker 	will 	forfeit his/her 	opportunity
to 	speak before 	the 	[b]oard 	for 	six
months.4
4In 	settlement of 	a 	Superior 	Court 	case 	challenging 	rule
2502.11 on constitutional grounds 	(Cowsill v. 	Board of
W
	3

Trustees, Case No. C371196), 	the rule was substantially amended
on July 1, 	19 81 and September 	2, 	1981. 	As revised, 	the rule
requires 	that the board make a 	finding 	of an 	intentional,
knowing 	violation of 	a provision 	of Article V before 	removing 	a
speaker 	from the podium or 	suspending his 	or 	her 	right 	to
speak. 	Before denying 	the 	opportunity to 	speak 	at 	its 	next
following meeting, 	the revised rule requires: 	(1) 	a
recommendation 	after 	an 	interim hearing 	by an ad hoc 	committee
composed of up to 	three 	trustees, 	at which 	the 	speaker 	has 	a
right 	to appear 	and be represented; 	and 	(2) 	a 	finding by 	the
board 	at 	its 	next meeting 	of 	a 	substantial 	likelihood 	that 	the
violation 	will 	recur 	and 	would 	materially 	and 	substantially
disrupt 	the 	functioning 	of 	the 	board.
Article V of 	the 	board 	rules 	is 	entitled 	"Communications 	to
the 	Board." 	Section 2500 	covers Written Communications 	to 	the
Board, 	section 2501, 	Oral Communications, 	and section 2502,
Rules of 	Decorum. 	Rule 2501.10 	provided 	that 	the president of
the board could 	terminate 	immediately a 	speaker's 	permission 	to
address 	the 	board where 	the 	presentation 	included 	profanity,
obscenity, 	offensive 	language or 	defamatory 	allegations 	against
officers or 	employees of 	the District. 	Rule 	2502.10 	prohibited
willful 	interruption of a meeting.
The March 25, 	19 81 Board Meeting
The 	record 	includes 	a 	transcript 	of 	the 	relevant portion 	of
the March 	25 	meeting. 	The 	proceedings 	are 	summarized 	below.
While 	addressing 	the 	board 	on 	another 	public 	notice
complaint, 	Watts 	referred 	to certain 	statements of Mary Dowell,
Associate General Counsel for the District, 	as 	"foolishness."
Board member Monroe Richman made a motion that 	"Mr. 	Watts' 	time
be 	suspended 	as 	of now." 	The motion was 	seconded 	and was
followed by 	a 	heated discussion 	in which Watts 	repeatedly
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referred to Richman as a 	"Nazi." 	The Chair, 	President Ralph
Richardson, 	ruled Watts out of order 	three times. 	The board
voted 	unanimously 	to approve Richman's 	motion.
Watts continued 	to make 	remarks, 	and 	Richardson warned him
that 	"if you 	speak 	I 	am going 	to ask 	that you 	be 	removed 	from
the 	room." 	Richman moved 	that Watts 	be 	allowed 	"no 	further
speaking 	here 	in accordance with our 	board 	rules 	for 	as 	long 	a
period as our 	board rules permit." 	The Chair 	then stated, 	"And
I 	wish 	to use 	the board 	Rules 	that will 	inform Mr. 	Watts 	that
he has 	violated." 	He 	requested 	that 	the 	District Counsel,
Robert Henry, 	"refer 	to the appropriate board rules." 	Henry
stated:
Yes, Mr. President, 	the reference is to
Section 2502.11 of 	the board rules, 	which 	is
labeled Withdrawal of Privileges. 	Speakers
or 	other 	persons who violate 	any of 	the
provisions 	of Article V 	and Article V
includes 	the rules on decorum, 	may be denied
the 	opportunity 	to attend 	board meetings 	or
to speak 	to 	the board, 	providing notice of
this 	rule 	is 	first communicated 	to that
person. 	And then, 	if he should continue 	in
that violation, 	he may be suspended 	from
addressing 	the 	board 	for 	a period of one
month, 	and if a second offense, 	for a period
of an additional 6 months.
The board 	discussed whether 	it was 	then proper 	to vote 	on
Richman's motion. 	Board member 	Harold Garvin stated, 	"I 	think
we must follow our normal procedure. 	And, 	therefore, 	I move
that 	the 	lawyer 	be 	instructed 	to communicate 	the 	first 	step of
denying Mr. 	Watts the right 	to speak, 	as our 	rules require."
The Chair 	responded, 	"The Chair 	has 	already so 	informed
Mr. 	Watts. 	You have violated and you are on notice now."
5

The 	Chair 	moved 	that 	"the 	board profoundly 	regrets 	the
insulting, 	intemperate, 	stupid language used by Mr. 	Watts."
This motion was 	seconded 	and passed 	unanimously.
Richman 	then noticed 	a motion 	to amend 	rule 	2502.11 	to make
the period 	of 	suspension of 	speaking 	privileges 	open-ended.
Watts 	interjected, 	"You, 	too? ," 	and the Chair warned Watts that
"We 	are 	at 	the point of 	removing you 	unless you give me your
personal promise not 	to say another 	word 	in 	this meeting."
Richman demanded 	that Watts 	apologize 	for 	his defamatory
language, 	"Otherwise, 	I'm going 	to walk out of the meeting."
Watts 	responded, 	"Go ahead." 	Richman 	then moved 	that Watts 	be
"removed 	from the 	room." 	The motion was 	seconded and passed
unanimously. 	Watts was 	told to 	"leave 	the room" 	and, 	when he
refused, 	was escorted out.
Watts was 	out of 	town 	and did not 	request permission 	to
attend an April 	8 	board meeting where 	three 	initial 	bargaining
proposals 	were 	discussed.
On April 21, 	Watts telephoned 	the District 	to put his name
on 	the list of 	speakers 	for 	the April 22 	board meeting. 	He was
informed 	that he would not be permitted 	to speak 	at 	that
meeting, 	which 	included 	three 	initial bargaining proposals on
its 	agenda. 	He 	was not prevented 	from attending 	the meeting.
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DISCUSSION
Section 	3547 	generally 	requires 	that 	the public 	have 	an
opportunity 	to 	express 	itself 	regarding 	initial 	bargaining
proposals at a meeting of the public 	school employer. 	Pursuant
to section 354 7, 	the 	District adopted a Collective Bargaining
Initial Proposal Procedure which 	incorporates 	by reference
certain rules of decorum regulating 	the conduct of 	its meetings.
The Board 	has previously held 	that:
Nothing 	in section 3547 	or 	in 	the PERB
Regulations defines 	how a 	school 	board
meeting 	should be 	regulated. 	The 	regulation
of those meetings 	is 	left 	to 	the discretion
of 	the 	local school board. 	Los Angeles
Community College 	District 	(Kimmett)
(3/3/81) 	PERB Decision No. 	158; 	Los Angeles
Community College 	District 	(Watts)
(12/31/80) 	PERB Decision No. 	153; 	Los
Angeles Community College 	District 	(Watts)
(12/31/80) 	PERB Decision No. 	154.
However, 	we have also recognized 	that, 	where local rules
are at 	issue,
the 	Board must determine whether 	the
statutory public 	notice 	provisions 	have 	been
violated. 	If 	the 	locally adopted 	rules
facially conflict with 	a public 	notice
requirement, 	the Board will necessarily
intercede. 	Where 	the application of local
rules 	results 	in deprivation of 	statutory
rights, 	we will likewise entertain the
complaint. 	Los Angeles Unified School
District 	(Watts) 	(8/18/83) 	PERB Decision
No. 335.
The ALJ 	found 	that the District's 	action 	to suspend Watts'
speaking 	privilege was not 	taken 	in 	accordance with 	its 	rule
2502.11, 	because 	he was not provided with 	adequate 	"notice of
7

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the 	rule," 	and 	because 	the board did not pass a motion
expressly 	suspending Watts 1 speaking privilege 	for 	one month.
In its exceptions, 	the District claims that 	the General
Counsel's 	recitation 	of 	the 	rule constituted notice 	and 	that,
pursuant to the 	terms of the rule, 	the board's approval of 	the
motion 	that Watts 	"be 	removed 	from the 	room" 	automatically
effected 	a 	one-month 	suspension. 	The 	District 	further 	contends
that Watts' 	right 	to address 	the board was not denied 	in any
event, 	since he could have elected 	to communicate 	to 	the board
through 	a 	representative or 	in writing.
Initially, 	we reject 	the District's contention 	that 	the
statutory public 	notice provisions may be 	satisfied 	by
providing 	for 	communications 	in writing or 	through 	a
representative. 	Section 3547 	requires 	in subsection 	(a) 	that
"all 	initial 	proposals 	. . . 	be 	presented 	at 	a public meeting,"
in subsection 	(b) 	that 	"the public has 	the opportunity to
express 	itself 	regarding 	the proposal at 	a meeting of 	the
public 	school employer," 	and 	in subsection 	(c) 	that 	"the public
school employer 	shall, 	at a meeting which 	is open to 	the
public, 	adopt its 	initial proposal." 	Thus, 	legislative 	intent
that 	these public 	notice 	provisions 	be 	implemented 	at 	a public
meeting 	is abundantly clear.
Nonetheless, 	we find no violation of Watts' 	statutory
rights 	in 	the 	facts 	presented here.
8

On March 25, 	1981, 	rule 2502.11 provided that an offending
speaker 	"will be subject to removal 	. 	. 	. 	and will forego
future 	opportunity 	to 	speak 	before 	the 	[b]oard 	for 	a period 	of
one month." 	(Emphasis added.) 	Thus, 	as the District contends,
on 	its 	face 	the 	rule 	provides 	that 	removal 	automatically
includes 	foregoing 	the opportunity 	to 	speak 	for 	one month,
after 	satisfaction of 	the 	following 	procedural 	requirements:
1. 	Violation of Article V.
2. 	Notice of rule 2502.11.
3. 	Warning 	or 	direction by 	the Chair 	to cease 	such 	conduct
or 	speech.
4. 	Continued violation of Article V.
5. 	Though 	the rule does not expressly so state, 	it 	is
clear 	from the 	record 	that 	a 	formal 	board 	vote was
required 	to 	implement 	this 	rule.
The 	transcript 	of 	the 	board meeting 	of March 	25 	reveals
that 	the 	first 	three procedural 	requirements were 	satisfied
here.
1. 	Watts willfully 	interrupted 	the meeting 	so as 	to render
the orderly conduct of 	the meeting 	infeasible, 	in
violation of rule 2502.10.
2. 	Watts was provided notice of rule 2502.11 by 	the
District Counsel. 	Though 	the District Counsel 	stated
that an offending 	speaker 	"may," 	rather 	than 	"will," 	be
suspended 	for 	one month, 	we 	find his 	statement of 	the
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substance of 	the 	rule 	sufficient 	to constitute 	"notice
of 	the rule."
3. 	Watts was subsequently warned by the Chair, 	"You have
violated 	and you 	are 	on notice 	now."
While 	it 	is 	less clear, 	we also 	find 	that after 	this
warning, 	Watts continued 	to violate Article V, 	satisfying 	the
fourth procedural requirement. 	After 	the warning, 	Watts
uttered at least two provocative remarks. 	Given 	the highly
charged and chaotic 	nature 	of 	the proceedings, 	we cannot 	fault
the 	District 	for 	construing 	these 	remarks 	as 	willful
interruptions 	which 	rendered 	the 	orderly conduct 	of 	the meeting
infeasible.
Thus, 	the only remaining 	issue 	is whether 	the board's
approval 	of 	the motion 	that Watts 	"be 	removed 	from 	the 	room"
reasonably served 	to automatically suspend Watts' 	right 	to
speak 	for 	one month. 	We 	find 	that 	it did.
In 	determining 	the validity of 	an 	action 	taken by a 	school
board, 	it 	is presumed 	that an official duty has been regularly
performed. 	Salmon v. 	Allen 	(1934) 	1 Cal.App.2d 	115. 	Moreover,
it is well established that, 	generally, 	parliamentary rules are
procedural only, 	and their 	strict observance 	is not mandatory.
Violations or 	suspensions of parliamentary rules will not
support 	a challenge by one who 	is not a member 	as 	to the
validity of 	an 	action 	taken without compliance 	with 	such
rules. 	Cal. 	Jur. 	2d, Administrative Law section 100, 	and
Municipalities 	section 	172.
10

More 	specifically, 	and directly on point, 	the failure 	to
observe 	a 	rule 	requiring 	that a motion be 	read 	in 	full 	before
it 	is voted upon does not 	invalidate 	the action. 	Pasadena v.
Paine 	(1954) 	126 CA 2d 93; 	26 A.G. Op. 	205. 	In Pasadena v.
Paine, 	the court stated, 	at 126 CA 2d 93, 	97:
The purpose 	of 	a parliamentary 	procedural
rule 	requiring 	the 	reading 	of 	a 	resolution
in 	full before 	it 	is voted on 	is 	to provide
assurance 	that those whose duty 	is 	to vote
thereon may have 	some 	knowledge of 	its 	scope
and 	terms before 	they cast 	their 	votes. 	In
the 	instant case 	that purpose was 	adequately
served. 	Not only had 	the members 	of 	the
board of directors 	visited 	the 	site 	in
question as a body 	several 	times 	and come 	to
the 	conclusion 	that 	this 	particular 	site
should be selected, 	but the 	resolution of
intention 	had 	been 	explained 	to 	them and 	had
been 	discussed 	and 	considered 	by 	them
informally. 	To require 	that 	the 	resolution
be 	read 	in 	full when 	the 	board 	officially
convened would have 	added 	nothing 	to 	the
knowledge of the board members. 	It would
simply have been an idle act. 	. 	. 	.
certainly 	no property 	owner 	was 	prejudiced
by a 	failure 	to read 	the 	resolution 	in 	full
at the official 	session of 	the 	board.
Similarly, 	the 	instant case contains ample evidence 	that
the board had 	"knowledge of 	[the] 	scope and terms 	[of 	the
motion] 	before 	they cast 	their 	votes" 	so 	that reading 	the
motion 	in 	full 	"would have 	added 	nothing 	to 	the 	knowledge 	of
the board members" 	and 	"would 	simply have been an 	idle act."
The 	transcript of 	the meeting 	reflects 	the 	board's 	frequent
reference to, 	and extensive discussion of, 	the rule, 	as well as
the 	board's 	concern 	that 	it comply 	fully with 	its procedural
requirements. 	The District Counsel 	read 	the 	rule 	aloud.
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Richman's motion 	to amend 	the 	rule 	to make 	the period 	of
suspension 	open-ended 	served 	to 	further 	alert 	the 	board 	that 	it
could only suspend Watts' rights 	for one month. 	Thus, 	we have
--
little doubt 	that 	the 	board 	acted 	knowingly 	and 	deliberately 	to
suspend Watts' right 	to 	speak 	for 	one month.
In addition, 	as outlined above, 	when 	the board approved 	the
motion 	to 	"remove Watts 	from the 	room," 	all procedural
requirements had been satisfied. 	Therefore, Watts' 	violation
of 	the rule was complete without 	any additional 	conduct 	on his
part, 	and he was 	in no way 	"prejudiced by a 	failure 	to read 	the
[motion] 	in full." 	Pasadena v. 	Paine, 	supra.
In conclusion, 	we find 	that 	the District's 	application of
its 	rule 	to bar 	Watts 	from speaking 	at 	its April 	22 	board
meeting did not violate EERA's public notice provisions. 	We,
therefore, 	dismiss the complaint.
ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact and 	conclusions
of law, 	and 	the entire record 	in 	this case, 	the complaint 	in
Case No. 	LA-PN-34 	is hereby DISMISSED.
Members Tovar 	and 	Burt joined 	in 	this 	Decision.
12