Source: San Diego Reader
By Dorian Hargrove | Published Wednesday, Feb. 3, 2010
Every morning at seven o’clock, Rodger Hartnett starts his day. The 62-year-old law school graduate and county employee breakfasts inside his Tierrasanta home as he watches the news. Afterwards, he opens up his book of word puzzles, and for two or three hours he works on them. The puzzles are a strategy to correct his visual processing impairment, an adult learning disability that he was diagnosed with back in January 2006. In the afternoon, following lunch, it’s time for exercise, a five-mile stroll around the neighborhood. This is a typical day for Hartnett, that is, ever since October 2007, when the San Diego County Office of Education–Joint Powers Authority, the agency that handles legal claims for 69 school districts and charter schools in the county, terminated Hartnett from his position as a claims coordinator for incompetence, dishonesty, and insubordination.
One day a month, Hartnett’s list of daily activities increases. On that day, Hartnett opens an envelope from his employer, pulls out a payroll check for $5237.28 and slides the check into a new envelope addressed to his lawyer, who mails the check back to the San Diego County Office of Education. The checks started rolling in to Hartnett’s mailbox in early December, eight months after Judge Steven Denton granted a writ in Hartnett’s wrongful termination suit and two months after the Office of Education’s appeal was denied.
It’s not that Hartnett doesn’t need the money. He cashed in his 401(k) in 2007. He draws partial Social Security benefits, and he adheres to a tight budget, leaving him just enough money in the bank to last him another year. No, Hartnett needs the money, and he wants to return to work. He sends back the check because he says it condones his employer’s decision to put him on paid administrative leave. He says he hates to think that taxpayers are paying him $43 per hour to watch the news, exercise, and work puzzles.
And there’s another reason he doesn’t cash the check. To cash the check, says Hartnett, would mean he’s agreed to a $21,000 pay cut. Before he was terminated, Hartnett’s salary was $112,000 a year; now it’s $91,000.
Sitting outside a Hillcrest coffee shop, Hartnett, a tall, lanky, gray-haired man wearing corduroy pants and a blue-and-white-pinstriped button down, recalls the sequence of events that brought him to this impasse.
It started in August 2003, when the Office of Education hired Hartnett as a claims coordinator, a job he had performed for corporations for 30 years. Working in public service was something he had wanted to do since the 1980s, when he worked for the County Counsel, a county department that handles the county’s civil lawsuits. He also wanted to vest in the California Public Employees’ Retirement System. Hartnett was in charge of three people. He and his team handled third-party lawsuits, such as employment claims and sexual-molestation cases, that were lodged against the county’s school districts. During his first two years on the job, he received positive annual performance reviews from his superiors.
“I walked on water,” quips Hartnett. “Not to pat myself on the back — never mind, no one else is going to — in one of my performance reviews I was described as being a real asset to the operation.”
The positive reviews ended and the problems began in 2006, a year after his boss, executive director of the San Diego County Office of Education–Joint Powers Authority, Diane Crosier, asked him to reduce legal expenditures to outside law firms by 10 percent. Hartnett looked at the law firms the office used. He discovered that in one recent year, the Office of Education had paid nearly $2.9 million to outside legal firms. One firm — Stutz, Artiano, Shinoff, and Holtz — received more than $1.49 million, ten times more than the next-highest-paid firm. Only three firms — Daniel Shinoff’s firm; plus Winet, Patrick, and Weaver, a law firm located in Vista; and Best, Best, and Krieger — received all of the school districts’ lawsuits.
Much of that money, says Hartnett, was for work that could have been done internally: “Shinoff’s law firm was assigned all the labor-intensive work, which was my work.”
Hartnett had an idea. The idea was to use a rotation method to choose which law firm would receive each case. “My thinking was, with competition comes better pricing,” said Hartnett.
Hartnett suggested his idea to Crosier, but she rejected it, saying that the district preferred Daniel Shinoff’s firm. “She said that’s the way it is, that I should leave it alone.
“That’s when I started asking myself if there was a reason this law firm was getting so much of the work,” says Hartnett. “If a lawsuit was getting sent to a particular law firm because it’s quid pro quo, that’s a criminal offense.”
Hartnett recalled a lunch he and colleagues had had with Daniel Shinoff, a lunch that Shinoff had paid for. During lunch, Shinoff and Crosier had talked about a legal case involving Crosier’s son in San Francisco. Shinoff was representing him. Later, Hartnett discovered that Crosier had worked for Shinoff’s firm in the ’80s, after she passed the bar exam.
A few weeks later, Hartnett again pitched his idea to Crosier and again she rejected it. Frustrated and worried that he would be held accountable for overlooking the conflict-of-interest issues, Hartnett included the recommendation in his report for his annual performance review. In her portion of the review, Crosier wrote that he should forget his idea.
“At the time, I thought if I ignored it and it blows up, I would be the guy that gets thrown under the bus,” said Hartnett, reflecting on his decision to press the issue further instead of dropping it as Crosier wanted. “If I knew the ass kicking I would take from doing this, I would have said fuck it, you can have the money. I’m not putting up with this shit. But at the time I didn’t think any of this would happen.”
He went to William “Woody” Merrill, general counsel for the Office of Education and a partner of the law firm Best, Best, and Krieger, to discuss his findings. Merrill advised Hartnett to discuss his concerns with Crosier’s superior, Lora Duzyk, assistant superintendent of business services.
Shortly before he went to Duzyk, Hartnett discovered additional conflict-of-interest issues. He discovered that Merrill is married to the director of human resources at the Office of Education, Michele Fort-Merrill. According to Hartnett’s attorney, Barry Vrevich, only after Merrill’s wife took control of the human resources department did Best, Best, and Krieger, the second-highest-paid firm on the county education office’s panel, start receiving cases.
“The further I went, the more corruption I discovered,” Hartnett said.
Earlier that year, in January 2006, Hartnett misplaced a set of keys. His girlfriend suggested he try to picture the last time he had had them. Nothing came to mind. Hartnett’s girlfriend, a speech pathologist, asked him to spell a three-syllable word. Then she asked him to spell it backwards. Hartnett couldn’t. He wasn’t surprised; he says he assumed he was “dumb” and had a poor memory. As a college student in St. Louis, he’d been forced to take off a semester due to poor grades. Playing basketball in high school, he couldn’t remember how the coach drew up plays. He had never passed the bar exam, failing the multiple-choice part four times. His girlfriend asked him if he had ever been tested for a learning disability. Hartnett had not. She recommended the Lindamood-Bell Learning Center in Del Mar, and a few weeks later, after a series of tests, specialists confirmed that Hartnett suffered from visual processing impairment. His scores revealed that his reading comprehension was at a sixth-grade level.
Hartnett sent an email to Crosier informing her of his condition. He explained that the visual processing impairment affected his work. He would forget emails; anything visual would not stick, or as he explains it: “It affected my ability to do my job. Your mind acts like a camera. My brain doesn’t have a camera — or there’s no film in the camera. I have to paint by numbers.”
In June 2006, Hartnett asked for financial assistance to help pay for the $5000 corrective training at the Lindamood-Bell Institute. His request was denied. “I was a little pissed off,” said Hartnett, before laughing. “If I would have lost my arm, there would have been some help, some accommodation.”
He was, however, allowed to use his vacation and sick leave for his five-week training program to help him cope with the disability. Every day for five weeks, Hartnett left the office at 2:30 p.m. and drove to Del Mar for a two-hour training session. Most of the exercises consisted of reading a paragraph and then describing what he’d read. During his training, no one at the Office of Education commented on his disability, though shortly after beginning the training, Crosier stripped away Hartnett’s supervisory duties.
By the time the five weeks were up, Hartnett had gone from a 6th-grade reading-comprehension level to a 12th-grade level. A couple of months later, Crosier restored his supervisory duties, but he had only one person to supervise. “She took away my investigator and my secretary. It was a violation of the California Fair Employment and Housing Act. They are not supposed to discriminate against you because of a disability.”
The following summer, in June 2007, Hartnett sent an email using the office’s email account to a Los Angeles lawyer, one he had known for years, asking his opinion on a class-action lawsuit his boss had accused him of mishandling and overpaying for. He attached a copy of the closing report on the case. Hartnett later mailed the lawyer a copy of the original lawsuit at his own expense. The lawyer did not charge any fees for reviewing the matter.
A few weeks later, Crosier called Hartnett into her office. She asked him whether he had used county resources to consult with the lawyer. He had not. She asked him whether he had used the county email system to send the document. He says he forgot that he had sent it using his county email address and he told her no.
“I didn’t remember doing it,” said Hartnett. “That’s the basis for the dishonesty. Knowing all the while that I have a visual processing impairment that affects my ability to remember visual events. They knew that.”
On October 5, 2007, Hartnett was terminated. Seventeen months after that, on March 27, 2009, San Diego superior court judge Steven Denton granted the writ that ordered the San Diego County Office of Education to reinstate Hartnett and award him back pay for the time he was out of work. In October, the office’s appeal was dismissed. On November 30, Hartnett reported to work, the first time in two years, only to be handed a letter that stated he was being placed on paid administrative leave and ordering him not to speak to any school district representatives.
Hartnett says the county must have hired someone else to do his job, meaning taxpayers are paying not only Hartnett’s salary but also the salary of whoever is replacing him. In addition, Hartnett claims the county is not following the court order to send him back pay for the past two years. In early December he received two checks for back pay; the gross amount was $46,000, not the $300,000 he was owed.
According to Jim Esterbrooks, public information officer for the Office of Education, the office will not comment on Hartnett’s case. The office also refused to provide its legal costs associated with Hartnett’s termination suit.
The San Diego County Office of Education “continues to request Shinoff and Winet,” wrote Esterbrooks in an email. “Both are extremely experienced and successful in their work on behalf of school districts. That’s why school districts request them. SDCOE continues to use Best, Best & Krieger, where Merrill works.”
Hartnett estimates that the cost of fighting the wrongful termination suit and of paying him to stay home is approaching the million-dollar mark.
“These are public funds,” Harnett says. “This isn’t corporate greed; this is public money we are talking about.”
On December 15, Hartnett received a letter notifying him that once again the Office of Education recommended that he be terminated. He is appealing.
