BOARD ACTION The Board voted 6-0-1 to Ratify Staffs September 8, 2016 response to the Grand Jury's 2015-16 Report On Dealing With Asbestos in Orange County Public Schools.

Board Meeting Agenda at page 429 http://capousd-ca.schoolloop.com/file/1218998819331/1455438848279/1474344529390663222.pdf

CUSD Staff Responds to Grand Jury Report

Trustees violate their fiduciary duty to students by ratifying Staff's response to the Grand Jury.

The Orange County Grand Jury issued a report titled: "Dealing with Asbestos in Orange County Public Schools". In the report the Grand Jury made detailed recommendations to Orange County school districts to establish documented and transparent processes to comply fully with AHERA requirements, to establish disciplined contracting processes for safely removing asbestos and other hazardous materials, and to commit to plans to remove asbestos from all Orange County schools.

The Capistrano Unified School District was to submit a written response to the presiding judge no later than September 28, 2016.

"The District's practice for responding to Grand Jury requests is for Staff to respond on behalf of the Board, and then share the response with Trustees prior to the response deadline."

Staff responded to the Honorable Charles Margines in a written letter dated September 8, 2016.

According to Agenda Item, Staff shared the written response with Trustees on September 16, 2016.

There was no Board meeting on September 16, 2016. September Board meetings were on September 14, 2016 and September 28, 2016. The Grand Jury Report was not on either agenda.

In December, the Grand Jury contacted CUSD asking if the response was from the District's governing body.

This item was placed on the Consent Calendar and would have been approved without discussion if a member of the public had not pulled the Item.

I pulled the item, and expressed some, but not all of my concerns about Staff's response (due to a 3 minute time constraint).

In particular-

Staff's response to Recommendation #3:

CUSD in in violation of Federal Law:

2644(5) Public Availability

(5) Public availability A copy of the management plan developed under the regulations shall be available in the administrative offices of the local educational agency for inspection by the public, including teachers, other school personnel, and parents. The local educational agency shall notify parent, teacher, and employee organizations of the availability of such plan.

John Forney's response to the Grand Jury repeatedly states that the District provides copies of AHERA reports for public review at its Maintenance & Operations office and at individual school sites.

Staff's response to Recommendation #5:

Recommendation #5

Each school district should within 9 months of the publication of the publication of this Grand Jury report create a comprehensive baseline plan for school facilities construction including new construction, retirement of schools or buildings at schools, modernization, hazardous materials abatement, and major repairs. Each effort should include estimated cost, planned funding source and status, and schedule for the start and completion of work. This plan should be up-dated annually and should be posted on the district's web site. (F9, F10)

Response: This recommendation has been implemented. The District's current master facilities plan is a comprehensive baseline plan for the District's facilities projects. The District's master facilities plan is available on line at: http://capousd-ca.schooloop.com/MasterPlan

Comment Dawn Urbanek: Attached is an August 9th, 2016 letter from Frank Ury; Mayor, City of Mission Viejo and Tony Beall; Mayor, City of Rancho Santa Margarita regarding CUSD's proposed $889 million dollar school facilities bond stating... at page 4

"... (for example, the facility improvement plan on which the proposed Bond is predicated includes line items for millions of dollars allocated for specific improvement projects that have already been completed, and others for school sites that are in the process of being closed)."

Staff's response to Recommendation #6:

Recommendation #6

Each school district should within 9 months of the publication of the publication of this Grand Jury report create a plan, identifying funding sources, to remove all asbestos from schools and other facilities in their districts within 20 years or sooner and report progress on this plan annually at its board meetings. If the removal of asbestos would include removal of other hazardous materials as part of the same effort, the plan should describe this. (F1, F2, F10)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. As the Grand Jury report notes, current EPA standards provide that encapsulated asbestos does not present an immediate hazard to people who come near it. Although the District recognizes that the removal of all asbestos from schools and other facilities should eventually be the goal, the District is faced with budget restraints which require that expenditures be constantly evaluated and prioritized accordingly. The District will make all reasonable efforts to remove all asbestos from its schools and other facilities as soon as possible, but cannot commit to a fixed twenty (20) year time line. Please not AHERA regulations do not require removal of all asbestos.

Comment Dawn Urbanek: CUSD has given employees four consecutive years of across the Board compensation increases totaling over $120 million dollars while choosing NOT to fix or maintain CUSD facilities.

Attached is an August 9th, 2016 letter from Frank Ury; Mayor, City of Mission Viejo and Tony Beall; Mayor, City of Rancho Santa Margarita regarding CUSD's proposed $889 million dollar school facilities bond stating... at page 2

"What is the level of asbestos proliferations throughout the district? Currently 23 sites have asbestos. How much has been addressed in the past 5 years? Per AHERA every site is inspected every six months and documented. Some roofs and floors have been addressed as needed. Very little has been removed in the last 5 years. How much remains? District has a complete list of asbestos in the AHERA books. [Note: The CUSD used asbestos removal as one if the needs/reasons to justify the 1999, $65 million bond- yet even though CUSD received the prior bond money, CUSD apparently failed to complete the promised asbestos abatement."]

We have schools in this District that are over 50 years old (San Clemente High School as an example is 51 years old). When a building has materials in them that are now over 50 years old, asbestos, even if it is encapsulated, will break down over time. The asbestos issues should have been fixed in 1999, when the District received initial bond funds for the stated purpose of asbestos removal. It has already been 20 years. CUSD should be forced to fix these issues immediately. If they refuse, then the public has no choice but to file a complaint with the Federal Government EPA. To wait another 20 years, given CUSD's budget priorities is unacceptable.

Trustees voted 6-0-1 (Trustee Hatton-Hodson absent) to ratify Staff's response to the Grand Jury.

The only recourse the public has; given the Boards ratification of Staff's response, is to report the following facts to the Grand Jury and ask for relief. This matter should also be reported to the Federal EPA. It is unconscionable that CUSD continues to disregard the health and safety of students by fixing and maintaing facilities in order to provide compensation increases to staff.

The following information has been forwarded to the Grand Jury and the District Attorney.

The September 8, 2016 letter from Staff to the Honorable Charles Margines
My comments, as a member of the public, to Staffs Response to the Grand Jury.
The August 9, 2016 letter from City Mayors, Frank Ury (City of Mission Viejo) and Tony Beall (City of Rancho Santa Margarita)

My review of Staffs responses to the Grand Jury:

at page 501

Recommendation #1:

Each school district should request the Orange County Department of Education to devote, in the year following publication of this Grand Jury report, one or more of its monthly "all districts" meetings to discussion and advise on handling hazardous materials. Representatives from each school district should participate in these meetings, and discussions should cover, AHERA compliance, resources available for in-depth AHERA training, and contract management, (F1, F2, F3, F4, F5, F6, F7, F8)

Response: This recommendation has not yet been implemented, but the District will request that the Orange County Department of Education devote, in the year following the publication of this Grand Jury report, one or more of its monthly "all districts" meetings to discussion and advise on handling hazardous materials. If the Orange County Department of Education elects to comply with this request, to the extent possible, the District will have at least one representative participate in such meetings.

Comment Dawn Urbanek: They will never make that request and it will be forgotten.

Recommendation #2

Each school district should within 9 months of the publication of the publication of this Grand Jury report develop and document a communications plan for parents and other stakeholders and post the plan on its web site. The plan should identify what information will be provided and by what means this communication will be accomplished. The plan should address how issues relating to hazardous material will be communicated, and in what languages to ensure effective communication. (F10, F11, F12)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. The recommendation would require that the District develop a communication plan to address how all issues relating to hazardous materials will be communicated to parents and other stakeholder, irrespective of whether students, parents and other stakeholders will be exposed to hazardous materials or if the hazardous materials even pose any safety risk. Therefore this recommendation will not be implemented because it places an unreasonable burden on the District to develop an overly broad communication plan that could potentially raise concerns and safety issues where none exist.

Comment Dawn Urbanek: The Grand Jury is simply asking the District to IDENTIFY what information would be provided, and how this information would be communicated, including the identification of languages CUSD would need to provide the information in to reach the public. This is a simple task and telling the public how information will be communicated if the need should arise does not create any safety concerns- it reassures the public that CUSD has a plan.

Recommendation #3

Each school district should within 9 months of the publication of the publication of this Grand Jury report create and have a process in place to use and keep up-to-date their web site communications with parents and stakeholders of that district.

Response: This recommendation will not be implemented because it is not warranted or reasonable and vague as to the types of communication being referenced. As appropriate, necessary and applicable, the District updates its website communications with parents and stakeholders. Moreover, the District provides copies of AHERA reports for public review at its Maintenance & Operations office and at individual school sites.

Comment Dawn Urbanek: CUSD must, by law maintain records at the District office (not at Maintenance and Operations)

2644(5) Public Availability

(5) Public availability A copy of the management plan developed under the regulations shall be available in the administrative offices of the local educational agency for inspection by the public, including teachers, other school personnel, and parents. The local educational agency shall notify parent, teacher, and employee organizations of the availability of such plan.

Recommendation #4

Each school district should develop and maintain a computerized database listing all district buildings and structures and post information in its web site. The database should contain the following for each building: date and type of construction, dates and costs of major repairs and modernization, numbers and sizes of classrooms, lists of other facilities including offices, lounges, gyms. cafeterias, laboratories, computers and other data processing equipment, and playground equipment. (F9, F10)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. Posting the above-mentioned information on the District's web site poses serious risk of placing District facilities, employees and students at risk. Moreover, at any given time, there are numerous projects and repairs taking place at each school site; therefore, updating the District's website each time such project repairs takes place imposes an unreasonable burden on District staff. To the extent applicable, the Division of State Architects ("DSA") website contains information regarding district buildings and structures that were the subject of DSA approval.

Comment Dawn Urbanek: CUSD has SchoolDude a work order management software designed to streamline the scheduling of reactive and preventative maintenance, track inventory usage, respond to critical system alarms, and planning future capital needs. CUSD has the ability to do what the Grand Jury is asking. See: https://www.schooldude.com/solutions/overview/maintenance

at page 502

Recommendation #5

Comment Dawn Urbanek: Attached is an August 9th, 2016 letter from Frank Ury; Mayor, City of Mission Viejo and Tony Beall; Mayor, City of Rancho Santa Margarita stating... at page 4

Recommendation #6

Each school district should within 9 months of the publication of the publication of this Grand Jury report create a plan, identifying funding sources, to remove all asbestos from schools and other facilities in their districts within 20 years or sooner and report progress on this plan annually at its board meetings. If the removal of asbestos would include removal of other hazardous materials as part of the same effort, the plan should describe this. (F1, F2, F10)

Comment Dawn Urbanek: CUSD has given employees four consecutive years of across the Board compensation increases totaling over $120 million dollars.

Attached is an August 9th, 2016 letter from Frank Ury; Mayor, City of Mission Viejo and Tony Beall; Mayor, City of Rancho Santa Margarita stating... at page 2

John C. Foreny total compensation (according to Transparent California) has gone from $127,642.00 in 2013 to $166,743.40 in 2015. Every employee in CUSD saw the same increases, while students attend school in overcrowded classrooms, in facilities that have not been fixed or maintained, with cuts to programs and services, furlough days, and... to this day students in schools whose parents cannot afford to fundraise for it, receive no art, music, science or PE that aligns with California State content standards and curriculum frameworks, and is taught by a properly credentialed teacher. The priority of CUSD is adult jobs, not the health and safety of students, or the financial wellbeing of taxpayers.

Recommendation #7:

Each school district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements to budget for and perform AHERA inspections every three years. (F6)

Response: This recommendation has already been implemented. The District budgets for, and conducts, an AHERA inspection every three years.

Comment Dawn Urbanek: This is required by Federal Law. CUSD; is required by law to keep these records at the District office, not in the Maintenance and Operations office.

Recommendation #8:

Each school district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements to make available at the main office of each school in its district the AHEAR reports applicable to that school. (F3, F6)

Response: This recommendation has already been implemented. The District provides copies of AHERA reports for public review at its Maintenance and Operations office and at individual school sites.

Comment Dawn Urbanek: This is required by Federal Law. CUSD; is required by law to keep these records at the District office, not in the Maintenance and Operations office.

Recommendation #9:

Each school district should within 9 months of the publication of the publication of this Grand Jury report appoint an EPA-defined "Designated Person" at each school site, and provide the EPA- required training for those persons. (F4, F6)

Response: This recommendation will not be implemented because it is not warranted or reasonable and exceeds legal requirements. The AHERA regulations only require a designated person at the district level.

Comment Dawn Urbanek: All public and private K-12 schools must assign a person responsible for overseeing the management of asbestos-containing materials in the school buildings. This responsible person is called the AHERA Designated Person. This bulletin summarizes the main duties of the Designated Person. Additional responsibilities and details are available in the EPA self-study guide at http://www2.epa.gov/sites/production/files/2013-09/documents/e23.pdf

at page 503

Recommendation #10:

Each school district should within 9 months of the publication of the publication of this Grand Jury report identify the hazardous materials training requirements for management, facilities (including maintenance contractors if they are used), and administrative personnel, and teaching staff in its district. Each district should maintain records on the training provided, including content, to whom it was provided, who provided it, qualifications of trainer(s). (F5)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. The district provides asbestos training to its maintenance and custodial staff, as required under AHERA regulations. However, AHERA does not require that management, administrative personnel, and teaching staff be provided with AHERA training; therefore, the basis for this finding goes beyond current statutory requirements. To the extent that hazardous materials other than asbestos are present at District sites, maintenance and facilities personnel work with Certified Industrial Hygienists to identify, and as appropriate, remove those hazardous materials.

Recommendation #11:

Each school district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements to schedule and complete work involving hazardous materials for days when students and staff are not present in the effected areas. (F7)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. Although the District makes every effort to schedule work involving hazardous materials for days when students and staff are not present in the affected areas, it is not always practical or feasible to do so. Student and staff safety is the primary concern for the District and in the event any work involving hazardous materials is conducted where students and staff are present in the affected areas, the District will ensure that no students or staff members are exposed to hazardous materials.

Comment Dawn Urbanek: How can the District do work involving hazardous materials with staff and students present and still ensure their safety?

Recommendation #12:

Each district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements for district schools to contract separately for hazardous materials inspections, remediations/abatement of those materials, and the actual construction in areas requiring remediation. (F7)

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. The District should be able to maintain the flexibility and autonomy to decide how it hires contractors who are performing work relating to remediation of hazardous materials. Moreover, depending on the specific project, in some cases the most practical and cost-effective solution is to have the same qualified entity perform remediations/abatement of hazardous materials and the actual construction in areas requiring remediation. This protects the District from unforeseen construction delays that may arise from having multiple contracts working together on a site.

Comment Dawn Urbanek: CUSD has proven that left alone it will not do the work that is is required by law to do. CUSD has had Bond funding earmarked specifically for asbestos abatement since 1999 and did not use that money to fix its facilities.

Recommendation #13:

Each district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements for district schools to include schedule performance requirements in every contract for repairs, modernization, and or new construction. Intermediate schedule milestones should be defined in every contract for all work anticipated to take longer than one month to complete.

at page 504

Response: This recommendation has been implemented. Milestone scheduling is a required contractual component of the District's modernization, and/or new construction projects.

Recommendation #14

Each district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements for district schools to monitor contractor schedule performance.such monitoring should be via personal staff walk-throughs of work in progress. Procedure should require every contractor to report monthly on that contractors performance in meeting schedule milestones and report on the current estimated date of completion of all work. (F7)

Response: This recommendation has been implemented. District Staff performs walk-throughs of work in progress modernization, and/or new construction projects.

Recommendation #15

Each district with current plans for modernization and/or major repairs to school facilities which lack schedules for completion, which lack cost estimates,and.or which fail to identify funding sources should within nice months of the publication of this Grand Jury report update its plans to include these data. (F10)

Response: The District does not currently have plans for modernization and/or major repairs to its facilities.

Comment Dawn Urbanek: CUSD just placed an $889 million dollar bond on the November ballot for the purpose of implementing its master facility plan to complete much needed modernization and/or major repairs to its facilities. CUSD's response to the Grand Jury' Recommendation #5 contradicts CUSD's response to the recommendation.

Recommendation #16

Each district should within 9 months of the publication of the publication of this Grand Jury report share all specific AHERA inspections data with all prospective bidders on repair, modernization, and/or new construction at that site. (F7)

Response: This recommendation has been implemented to the extent that the modernization, and/or new construction project which is subject of the bid is conducted in an area that contains asbestos or asbestos containing materials.

Recommendation #17

Each district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements to maintain all current AHEAR reports electronically with a backup at one remote location, and not rely exclusively on paper copies. (F9, F10)

Response: This recommendation will not be implemented. The District provides copies of AHERA reports for public view at its Maintenance & Operations office and at individual school sites. The District also maintains an electronic backup copy at the District Office.

Comment Dawn Urbanek: CUSD must, by law maintain records at the District office (not at Maintenance and Operations)

2644(5) Public Availability

CUSD already has an "Electronic" back-up copy. They should upload this to the district web site to comply with the Grand Jury recommendation.

Recommendation #18

Each district should within 9 months of the publication of the publication of this Grand Jury report document and implement requirements to make AHERA reports available on the District web site. (F9)

Response: This recommendation will not be implemented because AHERA regulations do not require that the District make its AHERA reports available online. As required by law, the District provides copies of AHERA reports for public view at its Maintenance & Operations office and at individual school sites. The District also maintains an electronic backup copy at the District Office.

Comment Dawn Urbanek: CUSD must, by law maintain records at the District office (not at Maintenance and Operations)

2644(5) Public Availability

CUSD already has an "Electronic" back-up copy. They should upload this to the district web site to comply with the Grand Jury recommendation.

Recommendation #19

Each district should within 9 months of the publication of the publication of this Grand Jury report prepare written procedures for district charter schools clearly defining roles and responsibilities for facilities maintenance including the handling of hazardous materials. The procedures should address how the district charter schools will pay for, achievve, and maintain AHERA compliance (e.g., AHERA inspections, identifications and training of AHERA Designated Person(s), and availability of AHERA reports), (F8)

at page 505

Response: This recommendation will not be implemented because it is not warranted or reasonable for the reasons discussed below. Under current State law, an independently run charter school is responsible for managing its facilities and for compliance with AHERA regulations. In the case where a Charter school leases or utilizes District facilities, the District provides the charter school with all AHERA information and reports. However, the District cannot oversee the management of a charter school's day-to-day operations. Therefore, the basis for this finding goes beyond current statutory requirements.

Comment Dawn Urbanek: AHERAis a Federal law. CUSD keeps referring to state law?

Recommendation #20

Each district should within 9 months of the publication of the publication of this Grand Jury report prepare written procedures defining roles and responsibilities for contracting for and monitoring performance of all construction activities in District Charter Schools.

Comment Dawn Urbanek: AHERAis a Federal law. CUSD keeps referring to state law?

Letter from City Mayors to CUSD re: Measure M (CUSD's $889 million dollar school facilities bond)