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Thomas E.

Gauthier
Attorney at Law

E-mail: tgauthier@lozanosmith.com

May 14,2015
Via Regular Mail
Anton Jungherr
121 Ash Court
Hercules, CA 94547
Re:

Alleged Brown Act Violations

Dear Mr. Jungherr:


.

"

Our office represents the West Contra Costa Unified School District ("District"): .The District
received your May 6, 2015 letter and asked-that we respond on its behalf.'
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in your'rviay 6 letter, 'you allege a violation ofthe Bro~'A~t based on '~ev~ralspectfic acisof the
District's Board of Education (,'Board") and demand a "cure 'and correct" reinedy fa/these ' . ,
alleged violations. For sake of clarity, we address the three points youraised in order and'
provide the District's response accordingly.
First, you allege the Board's "Special Meeting Agenda did not properly notice the consideration
of an independent forensic investigation of the bond program" and that such "consideration is not
a proper close[d] session item." However.jn compliance with Government Code section 54950
et seg. (the "Brown Act."), the District noticed and considered a personnel matter in closed
session. The April 29, 2015 agenda listed a closed session item as follows:
1.

PUBLIC EMPLOYEE DISCIPLINE/DISMISSALIRELEASE/COMPLAINT


(Government Code Section 54957)

(See also Exhibit A to your May 6 Letter.) Your letter cites to Exhibit D, a Contra Costa Times
article that references allegations or complaints against two District employees. The District
may meet in closed session to discuss certain enumerated topics, including consideration of
personnel matters. (Gov. Code 54957, subd.(b).) Otherwise,the Brown Actrequires "all
meetings of the legislative body of a local agency shall be openand public, 'and all persons shall ,
be permitted to attend any meeting of the legislative body of a 'local agency. : ." (Gov. Code
54953, subd. (a).) The District is not authorized to discuss what happens in closed session; as
you know those matters are confidential. (Gov. Code 54963\ Ultimately, should the Board
discuss or act upon matters such as the bond program or construction programs in general, or

retain a third party or other entity to investigate, please be assured that the District understands
Limited Liability Partnership
One Capitol Mall, Suite 640 Sacramento,

California 95814 Tel 916-329-7433 Fax 916-329-9050

Anton Jungherr
May 14,2015
Page 2
which topics are appropriately considered in open session and follows those parameters. A
general statement of the Board's intent to act in the future is not a Brown Act violation.
Second, you allege "the April 29, 2015 minutes [sic] did not accurately record the action taken or
the vote on this matter," while "[t]he April 29, 2015 report of closed session action was
accurately recorded by Contra Costa Times ... " with reference to Exhibits Band C. In Exhibit
B, you appear to highlight the following text:
Report/Ratification of Closed Session
President Groves reported that the Board of Education will establish an independent
investigation and have findings reported back to the Board upon completion.
For comparison, you highlight the following text from Exhibit C, the Contra Costa Times article:
"As a board, we are committed to pursuing an independent forensic examination of the
issues raised in the complaint and we have set forth a process to do so," Board President
Todd Groves said Wednesday, after a closed session meeting to discuss an undisclosed
employee complaint. "And the public will be hearing much more about it moving
forward."
It appears you allege as a Brown Act violation the absence of the word "forensic" in the
District's April 29, 2015 minutes. The Brown Act does not address the accuracy of minutes or
even mention minutes, so this issue cannot be a Brown Act concern. Regardless, even if we
were to accept the allegation on its face that there was a concern, the party complaining of the
action must show prejudice. (Cohen v. City of Thousand Oaks (1994) 30 Cal.App.4th 547.)
There is no showing of prejudice due to the absence or presence of the term "forensic." The
District disputes your allegation that the description of the action taken on April 29, 2015
violated the Brown Act.
Third, you allege that "[a]t the May 6, 2015 Board meeting action was taken to amend the April
29,2015 minutes to add additional information in regards to this independent forensic
examination that was not reported at the April 29, 2015 closed session." But the action taken at
the May 6, 2015 meeting you cite took place in a public meeting and was properly noticed as
follows:
B. OPENING PROCEDURES
B.l Pledge of Allegiance
B.2 Welcome and Meeting Procedures
B.3 Roll Call
B.4 Presentation of Student Board Representative from Richmond High School
B.5 Report/Ratification of Closed Session *
B.6 Agenda Review and Adoption (Public Comment)
B.7 Minutes: April 16, 2015; April 22, 2015; April 29, 2015
B.8 Request to Address the Board - Dr. Fatima Alleyne
B. 9 Request to Address the Board - Ari Alleyne
B.10 WCCUSD Public Comment

Anton Jungherr
May 14,2015
Page 3
(Emphasis added.) To the extent this allegation speaks to your belief that the Brown Act
violation relates to the failure to include the term "forensic," we direct you to the District's
response above. Moreover, the Board's subsequent action to include the term "forensic"
provides even more detail than required under the Brown Act.
In conclusion, the District disagrees with the allegations of violations of the Brown Act raised in
your May 6 letter. The Board does not intend at this time to take any action, as there is nothing
to cure and correct.
Sincerely,
LOZANO SMITH

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Thomas Gauthier
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WCCUSD Board of Education Minutes


May 6, 2015 +Page 2

B.7

Minutes.

April 16, 2015; April 22, 20]5; April 29, 2015

Public Comment:
Tom Panas, Ben Steinberg
Board Comment:
President Groves stated the comments from the public were correct and he did request an independent forensic
examination.
MOTION: Ms. Kronenberg moved to amend the Minutes of April 29, 2015 for Item C.l. replacing the words
"independent investigation" with "independent forensic examination". Mr. Enos seconded. Ms. Block, Ms.
Cuevas, Mr. Enos, Ms. Kronenberg, Student Representative Alejandra Barragan Hidalgo (advisory vote only),
and President Groves voted yes, with no abstentions and no absences. Motion carried 5-0-0-0.
MOTION: Ms. Block moved to further amend the Minutes of April 29, 2015 for Item Cd , to include steps the
Board had previously agreed to taking toward the independent investigation process which included hiring of
an independent attorney not baving worked with the district in the past and choosing a forensic auditor. Ms.
Cuevas seconded. Ms. Block, Ms. Cuevas, Mr. Enos, Ms. Kronenberg, Student Representative Alejandra
Barragan Hidalgo (advisory vote only), and President Groves voted yes, with no abstentions and no absences.
Motion carried 5-0-0-0.
MOTION: Mr. Block moved approval ofthe Minutes of April 16,2015 and April 22, 2015 and amended
Minutes of April 29, 2015. Ms. Cuevas seconded. Ms. Block, Ms. Cuevas, Mr. Enos, Ms. Kronenberg, Student
Representative Alejandra Barragan Hidalgo (advisory vote only), and President Groves voted yes, with no
abstentions and no absences. Motion carried 5-0-0-0.
B.lO

WCCl
SandiE

Due to the numb


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yes, Ms
President Groves
achievements.
MOTI(
Ms. Blo
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This is a transcription, from the May 6, 2015 WCCUSD


Board meeting video tape starting at time stamp 00:017,
of Ms. Block's amendment to the April 29, 2015 Special
Board meeting minutes:
"That we would hire an independent attorney who
haven't worked with the District before to identify three
or four forensic auditors who will then present their plan
for the investigation to the Board. The Board will choose
from that group an auditor that they feel best match their
investigation that we want to do and then we would hire
them to do the investigation."
The Board unanimously approved this amendment on
May 6, 2015.
The exact wording of this amendment should be included
in the April 29, 2015 Board minutes.

Public C

None

Anton Jungherr, May 17,2015

Board Comment:
President Groves congratulated the teams.
D.2

Class of2015 Ed Fund Scholars Recognition

24

k seconded. Mr.
mt Groves voted

to recognize student

~.Enos seconded.
igan Hidalgo
-'lotion carried 5-0-

nd Pinole Valley
foumament. Lev
ston and Jun Hui
ston, and Sophia

ANT OJ JUNGHERR
wccus~ ll1eged Violation of Brown

Act

510.697.7212 cell
jungherr3@aol.com

April 29, 2015

May 6,2015
President and Members of the
West Contra Costa Unified School District
Board of Trustees
1108 Bissell Avenue
Richmond, CA 94801
DEMAND FOR CURE OR CORRECTION; ALLEGED VIOLATION
OF BROWN ACT
This letter is to call to your attention to what I believe was a substantial
violation of a central provision of the Ralph M. Brown Act, which may
jeopardize the finality of the action, taken by the Board of Trustees of the
West Contra Costa Unified School District (WCCUSD) at a Special Meeting
on April 29, 2015.
The nature of the violations are as follows:
The April 29, 2015 Special Meeting Agenda did not properly notice
the consideration of an independent forensic examination of the bond
program. See Exhibit A. This was a violation of the Brown Act.
The consideration of an independent forensic examination is not a
proper close session item. This was a violation of the Brown Act.
The April 29, 2015 did not accurately record the action taken or the
vote on this matter. See Exhibit B. This is a violation of the Brown
Act.
The April 29, 2015 report of closed session action was accurately
recorded by Contra Costa Times reporter Theresa Harrington in her
video posted on the newspaper's website and in her April 29, 2015
article. See Exhibit C.
At the May 6, 2015 Board meeting action was taken to amend the
April 29, 2015 minutes to add additional information in regards to
this independent forensic examination that was not reported at the
end of the April 29, 2015 closed session. This was a violation of the
Brown Act.
C:\Users\Anton\Documents\OOOO CBOC 2.11.15\Brown Act Violation Closed Session April 29, 20155.6.15 - aj.docx
Page 1 of3

ANTON JUNGHERR
WCCUSD Alleged Violation of Brown Act
April 29, 2015

510.697.7212 cell
jungherr3@aol.com

Brown Act Requirements:


"The intent and purpose of the Brown Act 1 is to ensure the actions (of local
legislative bodies) are taken openly and that their deliberations be conducted
openly." 2
The Brown Act provides that the public have the right to an agenda that
contains a brief description of each item of business to be transacted. 3 The
description of agenda items must not be misleading.
"In Carlson v. Paradise Unified School District (1971) 18 Cal.App.3d 196,
the court, commenting on the specificity required for a school board agenda,
provided: [I]t is imperative that the agenda of the board's business be made
public in some detail so that the general public can ascertain the nature of
such business. It is a well-known fact that public meetings of local
governing bodies are sparsely attended by the public at large, unless an issue
vitally affecting their interests is to be heard. To alert the general public to
such issues, adequate notice is a requisite." 4
The Brown Act provides that action taken in permissible closed session
should be reported to the public as soon as the action is taken. Brown Act
requires the body to report all actions taken in closed session and the vote or
abstention of every member present.
Background:
On April 22, 2015 Dennis Clay, an employee of the District, sent a CD of
documents pertaining to the 2014 Performance Audit to the School Board.
He also gave these documents to the Grand Jury. See Exhibit D.
The Board responded to these documents during the April 29, 2015 closed
seSSIOn.

California Government Code Sections 54950 through 54963.


The Brown Act, School Boards, and Open Meeting Laws, California School Boards Association, 2009,
page 4.
3 Government Code section 54954.2(a).
4 The Brown Act, School Boards and Open Meeting Laws, California School Boards Association, 2009,
page 23.
1

C:\Users\Anton\Documents\OOOO CBOC 2.11.15\Brown Act Violation Closed Session April 29, 20155.6.15 - aj.docx
Page 2 of3

ANTON JUNGHERR
WCCUSD Alleged Violation of Brown Act
April 29, 2015

510.697.7212 cell
jungherr3@aol.com

Brown Act Remedy:


The Brown Act allows the legal remedy of judicial invalidation of illegally
taken action. Pursuant to Government Code Section 54960.1, I demand that
the Board of Trustees cure or correct the illegally taken action as follows:
formal and explicit withdrawal from any commitment made, coupled with
disclosure at a subsequent public meeting of the reasons why individual
members of the Board of Trustees took the position that they did, release to
the public all documents supporting the April 29, 2015 meeting action with
full opportunity for informed comment by members of the public at the same
meeting, notice of which is properly included on the posted agenda.
As provided by Section 54960.1, you have 30 days from the receipt of this
demand to either cure or correct the challenged action, or inform me of your
decision not to do so. If you fail to cure or correct as demanded, I am
entitled to seek judicial invalidation of the action pursuant to Section
54960.1, in which case I would seek the award of court costs and reasonable
attorney fees pursuant to Section 54960.5.

Anton Jungherr
Exhibits
A.
B.
C.
D.

Special Meeting Agenda, April 29, 2015


Minutes of Special Board of Education Meeting, April 29, 2015
Contra Costa Times Article, April 29, 2015
Dennis Clay Email, April 22, 2015

C:\Users\Anton\Documents\OOOO CBOC 2.11.l5\Brown


5.6.15 - aj.docx

Act Violation Closed Session April 29, 2015 Page 3 0[3

ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015

EXHIBIT A
May 6, 2015 Letter to WCCUSD Board of Education

WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT


BOARD OF EDUCATION

SPECIAL MEETING AGENDA


CLOSED SESSION
WEDNESDAY, APRIL 29, 2015
10:00AM

BOARD AGENDA PACKETS AND INFORMATION:


Complete Board meeting packets are available for review at the Administration Building, the District's six high
schools, and at public libraries throughout West County.
Complete Board agendas and packets are available online at: www.wccusd.net.
Any writings or documents that are public records and are provided to a majority of the governing board
regarding an open session item on this agenda will be made available for public inspection in the District office
located at 1108 Bissell Avenue, Richmond, CA 94801 during normal business hours. In addition, such
writings and documents may be posted on the District's website as noted above.
I

ATTENDING BOARD MEETINGS:


Location:

AL VARADO ADULT EDUCATION CAMPUS


ROOM I
5625 SUTTER AVENUE
RICHMOND, CA 948054
The Board will convene at 10:00 AM in Room One to receive comments from anyone wishing to
address the Board regarding closed session items (Exhlbit A). The Board will then adjourn to
closed session.

A.

B.

OPENING PROCEDURES
A.I

WELCOME AND MEETING PROCEDURES

A.2

ROLL CALL

CONVENE TO CLOSED SESSION


The public may address the Board regarding Closed Session items prior to the Board adjourning to Closed
Session by first providing a Request to Address the Board speaker sheet.

CLOSED SESSION
B.I

CALL TO ORDER

B.2

DISCLOSURE OF ITEMS TO BE DISCUSSED IN CLOSED SESSION


(Government Code 54957.7)

WCCUSD Board of Education


Special Meeting Agenda - April 29, 2015

See Exhibit A
(Government Code Section 54954.5)
EXHIBIT A
(Government Code Section 54954.5)
CLOSED SESSION AGENDA
April 29, 2015
1.

C.

PUBLIC EMPLOYEE DISCIPLINEIDISMISSALIRELEASE/COMPLAINT


(Government Code Section 54957)

RECONVENE TO PUBLIC SESSION - REPORT OF CLOSED SESSION ACTIONS


C.1

REPORTIRATIFICATION

OF CLOSED SESSION

D.

ADJOURNMENT

E.

THE NEXT SCHEDULED BOARD OF EDUCATION MEETING


Lovonya Dejean Middle School- May 6,2015

ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015

EXHIBITB
May 6, 2015 Letter to WCCUSD Board of Education

West Contra Costa Unified School District


Minutes of the Special Board of Education Meeting
Closed Session

Agenda Item B.7

Alvarado Adult Education Campus, Room I


Richmond, CA 94804
April 29, 2015

A.

OPENING PROCEDURES
President Groves called the meeting to order at 10:00 A.M. The Board recessed into Closed Session. President
Groves reconvened the Public Session to report action taken in Closed Session at 12: J 0 P.M.

A.i

Welcome and Meeting Procedures

A.2

Roll Call
Board Members Present;
Staff Present:

Liz Block, Valerie Cuevas, Randall Enos, Todd Groves, Madeline Kronenberg

Superintendent Bruce Harter; Debbie Haynie, Executive Secretary

Public Comment Prior to Closed Session:


Anton Jungherr, Ben Steinberg, Tom Panas, Dan Romero, Linda Ruiz-Lozito, Scottie Smith

B.

CONVENED TO CLOSED SESSION

c.

RECONVENE

C.l

TO PUBLIC SESSION - REPORT OF CLOSED SESSION ACTIONS.

Report/Ratification

of Closed Session

A President Groves reported that the Board of Education will establish an independent investigation and have findings
} reported back to the Board upon completion.

D.

ADJOURNMENT
President Groves adjourned the meeting at 12:10 PM.

E.

The Next Regularly Scheduled Board of Education Meeting


Lovonya Dejean Middle School - May 6, 2015

BH:dh

34

----- ------.----------------------~.

--_._----------

ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015

EXHIBIT C
May 6, 2015 Letter to WCCUSD Board of Education

1% Bail

Bonds

Low Monthly Payments, Fast & Local ABBABail Bonds

CONTRA COSTA TIMES (http://\I\TW\I\T.contracostatimes.com)

NEWS (/BREAKING-NEWS)
---- -. ------

----_.-. __ ... _--------------------

OVER 500 FRESH DEAL WEEKLY

West Contra Costa trustees to seek a


detailed audit of bond program

Whistleblower Service
investigative Audits

POSTED: Q.tr.c9f201S05:17:.39 PM PDT

Investigative & Fraud audits of public sector

UPDATED: d DAYS AGO

organizations

RICHMOND -. West Contra Costa trustees "ill seek a detailed audit of their bond construction
program in the wake of whistle-blower allegations of criminal wrongdoing and negligence by three
district officials.
",\s a board, we are committed to pursing an independent

V in the complaint
~

forensic examination of the issues raised

~nil we have set fmtll a process to do so," Board President Todd Groves said
iVcdnesday, after a closed session meeting to discuss an undisclosed employee compla!~nd
the public "ill be ht;aring much more about it moving forward."

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1:..

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Better board evaluations


Banker's InfoPoint

'It

Dennis Clay, a project analyst


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who has worked in the district


for

11 years,

alleged in a

document sent to the board


earlier this month that he had
uncovered evidence of criminal
conduct by former Trustee
Charles Ramsey, "facilitation"
by Superintendent Bruce Harter
and negligence by Sheri Gamba.
associate superintendent of
business services. Clay who
performs financial analysis for
the district, said Wednesday
that he compiled three binders
full of documents to back up his
claims. which he provided to outside auditors from Pleasanton-based Vavrinek, Trine, Day and
Company.
Advertisement

"I had hoped that (the company) would use the


documents given them in more than a cursory
way," Clay wrote to the board. "Like the
auditors before them, Total School Solutions,
they did not show much understanding,
interest in the operational issues and

MORE VIDEOS:

nor

complications involved in running a billion


dollar bond program ..." Clay said that he wants
to discuss his allegations and documentation
with the independent

Citizen's Bond Oversight

Committee or its Audit Subcommittee,


district will allow that.

Walnut Creek Local Guide


(http://mylocal.contracostatimes.cor

if the

District spokesman Marcus Walton said it was


his understanding that the board is hiring the auditors 10 conduct the independent investigation.
He also said that Clay did not need the district's permission to talk about his documentation.

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Groves said after the closed session that the district is taking whistle-blower

protection laws

9597)

seriously and that he hoped the board would be ready to discuss its plans for a forensic audit at its
May 6 meeting. A forensic audit is a much more detailed examination of the finances of the bond

(htlp:j!mylocal.conlracostatimes.wmfhome/27193586j

program.

Pound Mslters

DUling their closed session, trustees met with two outside lawyers, but excluded Harter from most
of the meeting without publicly stating why the superintendent
sessions -- was not allowed to participate

ill

-- who normally attends closed

a large portion of the discussions.

Sotneby's Int'l Really - East Bay

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Ramsey, reached by phone late Wednesday afternoon, called the allegations "serious," aod said

(hUp:J!myfoca!.contracostatim3s,c'Jmfantrocit-

that Clay "would have to back them lip." He would not comment further and referred questions to

CAlr.ouse-and-homef.'1cuSEiholri-

his attorney.

applianc6s/Ab!e-Heal1h-and-Home-925-S86-

Several district residents who asked the board for an independent

analysis of bond spending after

learning of Clay's allegations praised trustees for taking the matter seriously. The residents said
transparency

is necessary to rebuild public trust in the bond program.

0378)

Furniture Clearance Outlet


ihttp://m)nocal.contracosi2times.comfantiochGAfhotlseand-nomelretaii-

"This independent forensic audit is a HUGE step forward to shining light on the financial
irregularities in the construction program," said resident Ben Steinberg, in an e-mail to L1Jis

furnlture/Fumiture-Clearance-Outlet-925778-9033)

newspaper.
Hercules City Councilman Dan Romero, who reminded the school board about whistle-blower

FInd Walnut Creek Attractions

protection laws before they went into closed session, said in an e-rnail after the meeting that he
was glad to hear the board would pursue a detailed audit.
"This is a huge step to transparency

that residents in West County have 1I0t seen in over a decade,"

he said.

Search for a business

Search by keyword or Zip

Trustee Madeline Kronenberg said after the closed session that the FBI, which initially contacted
her in relation to an SEe investigation into the bond program last fall, has not followed up with
Add your business here +
(http://mytocai.contracos!atirnes.com/#add_businE

her. Trustee Val Cuevas said that the SEe investigation is ongoing.
Theresa Harrington covers education. Contact her at 925-945-4764

or
. Follow her at

more Information To see whistle-blower documents, a letter from district residents seeking a
forensic audit and a video clip from the meeting, visit
_

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----------------- -_._-- . -----_ .._---------_._--------------------------------

ANTON JUNGHERR
WCCUSD ALLEGED VIOLATION OF BROWN ACT
APRIL 29, 2015

EXHIBITD
May 6,2015 Letter to WCCUSD Board of Education

rage

3ubj:

Jate:
From:

1 or

p.

[WCCUSD CBOCl Fwd: 2014 Performance Audit


4/24120158:26:25 A.M. Pacific Daylight Time
i\!-st~ericc;:~F!Gr:-i2i~.Gor:~:

FYI. Please do not reply to this email.

Sent from my iPhone


Begin forwarded message:

Begin forwarded message:


From; "Clay, Dennis" <!")Ci.?'""zi:;\.X0'O';::..:.::''':>
To: Hll:.i2c.;tQ~Is..~0c.';;ir11c2_~~:~m
<_~l:J~_~.~~i:~);;COl~-iCs.:;;t.:L~.~>1
miQ.~~~~.s;;(C:I.t'ES\~~;.:/;i8i!.r':;fl~1U

<t:2:J~G_:;~;~~.i:~_~:~~g.~~Jg~~J.:.:~=-~:c~>:
1tl.(:~!L~.:.~r!;~~}:~~~~~::
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Cc: "Clay, Dennis" <,-i,:::-:l;;"L:~:2:C~:~,i2C',,:c;:>


Subject: 2014 Performance i..
\uoit
Date: April 22, 2015 at 12:12:52 PM PDT
I have sent you via either District inter-office mail to the Bissell address, or US mail to
the address listed on the Districts website, a CD of documents pertaining to the 2014
Performance Audit. I am taking copies of these documents to the Grand Jury in
Martinez this afternoon. The executive summary and a description of documents title
2015 Updates from the CD are attached to this emai!.
These documents were not prepared for the Grand Jury but for the Board and the
CBOC. I am sending them to VOU, and will trust that it will find its way to the CBOC. I
plan on giving a copy to senior staff of the District tomorrow.

If you have any questions about anything contained therein, Iam sure Luis Freese,
Lisa LeBlanc, and Mark Bonnett will be wilHng to help. And of course, Iwill be
available to answer any questions members of the Board or District staff may have.
Thank you for patience. I know you are busy people and this is highly irregular.
Thanks.

Dennis Clay

(510) 307-4588

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Friday, April 24, 2015 AOL: Junzherrs