Thursday, April 15, 2010

EDUCATION MATTERS: An interview with the attorney

Source: Del Mar Times

By Marsha Sutton

A brief interview this week with the attorney for the Del Mar Union School District's Board of Education offered up tiny nuggets of information about what led up to the March 31 firing of former DMUSD Superintendent Sharon McClain. Provided here is the transcript from that conversation, edited for greater brevity.

Board members who voted her out would, we can assume, like nothing more than to share every detail of their reasoning but are restrained, according to their lawyer, by the law which prohibits them from disclosing any personnel matter. McClain has them at a disadvantage, as she can speak as she likes, knowing there can be no response from the other side.

In the conversation related here, an interesting point is that the board's attorney, Dan Shinoff of the law firm Stutz Artiano Shinoff & Holtz, said all personnel information would be revealed if McClain chooses to file suit. So either all the sordid details eventually get disclosed through costly court proceedings, or McClain refrains from suing and the district saves money but the community remains in the dark.

One issue that clearly troubled the lawyer is that McClain had asked for an open session on March 31, which is her right, and he came prepared to present the board's case. But then she changed her mind before the start of the meeting, perhaps not realizing that an open session meant a public airing of the charges against her, not just the vote.

In a follow-up e-mail on this issue, Shinoff wrote, "She chose not to address the charges in open session. ... Sharon wanted the public comment, not a defense of the charges. Completely contrary to her request."

Another point: One clear-thinker posted in a blog that the anger against the firing of McClain may have to do more with displeasure with the school board than any love for the former superintendent. It's important to separate the two.

Many observers, myself included, have expressed profound disappointment over the way this board has functioned since 2006. Yet the possibility exists that McClain did indeed breach her contract and there may have been legitimate grounds for releasing her, even if some of us have been dissatisfied with the board's long-term performance.

Just because people may believe school board members have not served the district well does not necessarily mean they made a mistake in this instance. Anger against the board over past performance should be separated from an action that might actually be in the best interests of the district. To acknowledge that trustees may have acted appropriately in this case does not mean we accept that they walk on water. If doesn't even mean we have to like them.

Finally, energy spent demanding the resignations of board members in the spring of an election year, when a new group of three will surely be elected come November, seems pointless. Yes, stay vigilant, but would it not be better to focus on who will replace them rather than continuing to vocalize displeasure?I think we can safely assume that this message of dissatisfaction has already come through loud and clear.

Q: What led up to the firing?

Shinoff: They did an evaluation with their concerns and she did a response and they weren't happy with the response. Then she retained an attorney, and then the big issue as you know from open session became, at least for her, the $16,000 issue, which there is no paperwork to support a change in her contract.

Q: You are talking about the STRS [California's State Teachers' Retirement System] contribution?

Yes, the STRS contribution. But she didn't want that as STRS contribution. She wanted that as salary. But there was nothing that indicated that there was action taken to increase her salary. In fact quite to the contrary, the action appeared to support some sort of contribution to a 403(b) or a 457 retirement plan. So that became a huge stumbling block.

Q: Didn't the board initially agreed to it?

The board did agree to a contribution to her retirement plan, but apparently that's not what she wanted. She wanted an increase in salary. So she went in September ... to see if she could do that, and STRS said no. But that wasn't what the board had in mind in any event. So that became a big problem, and she retained an attorney, and everything became predicated upon the board capitulating to this demand for a salary increase which had never been agreed to. And it further exacerbated a difficult relationship.

Q: Is there more to it than that issue?

It isn't all of it. The problem is it's all in her personnel file which is private.

The thing that really is bothersome to me is she demanded a public hearing so that the charges could be heard against her. So I show up there [at the March 31 meeting when she was released] and I told her that what we had in mind was 20 minutes for me and 20 minutes for her to present her view of the charges. And then she acted as though she was completely caught by surprise. But she's the one that asked for open session.

What the Brown Act says is that if there are complaints or charges to be heard against an individual, they can be heard in closed session or in open session at the option of the employee. She chose not to have those heard in open session despite the fact that she asked for an open session.

I think quite frankly the community was misled by her because she wanted to have an open session, but she didn't want to have an open session to discuss the charges. In fact, I heard she said, "I have no idea what they're talking about." Well, that's just not true.

Q: The board has been meeting in closed session for about six months over this, yes?

Well, yeah. There were evaluations, there were opportunities for her to respond. Then she had a lawyer, and there were all kinds of threats made regarding litigation. But for her to tell the community that she didn't have a clue what the charges were, well if that's the case, why did she ask for an open session?It's really disingenuous as far as I'm concerned.

Q: Which item or items in her contract did she breach?

The material breaches of her contract include not complying with the law or with not doing your job in a manner that's consistent with your obligations as superintendent. It's like any other employer-employee relationship. She's the CEO and the board of directors has the right to hold that person accountable.

Q: Do you expect her to file suit?

Everybody else says she will. I'm not so sure that she will. [People] talk about how she'll recover attorneys' fees. Well, there's no attorneys' fees provision in it. So she needs to make this big financial investment, that's number one. Number two, she'll go into the retirement system, and that is going to be an offset against any damages that she can claim because you can't get a double recovery.

Q: Was her releasing your invoices [last December] a violation of the law?

Yes. How could she who had retained a lawyer go through attorney-client communications and decide what she was going to release?She couldn't do that. She's not a lawyer. Do I think she had a different agenda?Yeah, I do.

Q: Is there a laundry list of issues, not just one or two?

Oh yes.

Q: Was the board within its rights?

Absolutely. It's interesting that all of these people know about her performance. They know nothing about her performance, one way or another. They elect these people to hold people accountable - teachers and staff and principals and superintendents. But apparently they believe they have better information.

Q: Did the board act recklessly?

Not at all. I think the board did their job.

Q: Can you be more specific on the ways she may have violated her contract?

No, I can't. If she chooses to go public with her lawsuit, then it's all on the table.

Q: If she decides to sue?

Then everything is wide open.

Q: When were you hired?

In the summer, in July.

Q: Were you hired with the directive to fire her?

No, I was never given a directive to fire her. They were frustrated in terms of superintendent-board relations, they were concerned about how things were going, and they wanted to get legal counsel on it.

Q: You would have advised them if they didn't have grounds to fire her?


Q: Did all five board members appear to understand that she violated her contract?Were they all behind this?

That's getting into how they think and how they deliberate and what they said in closed session, and I really can't say that.

Q: Were you surprised that one person abstained and one person voted against?

I'm never surprised when it comes to voting because I think that it's really easy to take a position that you feel comfortable with at one time and then facing an angry crowd is a difficult thing to do. So whether you vote in favor or against, it's a very, very difficult thing to do. And quite frankly, I think it scares away good people from getting involved in public service. That crowd was very angry. It's always easier to do things without an angry crowd, that's for sure. I think that everybody did their level best.

Q: Does a 3-1-1 vote strengthen McClain's case in a way a 5-0 would not have?[via e-mail]

Not at all. The number is irrelevant in a court of law. Although that is different than the court of public opinion.

After speaking with the attorney, I requested the exact wording of the motion to fire McClain, took another look at her contract and called board president Comischell Rodriguez for further explanation on the STRS issue.

The March 31 motion specifically reads as follows: "To terminate the Superintendent pursuant to section 11C for material breach of her contract. By so moving, payment of Dr. McClain's salary and benefits will cease immediately." Trustees Annette Easton, Doug Perkins and Katherine White voted in favor, Comischell Rodriguez opposed and Steven McDowell abstained. There was no roll-call vote.

Section 11 of McClain's contract, titled "Termination," provides for three ways the contract can cease: 11-A is by the superintendent's choice, 11-B is without cause, and 11-C is with cause.

Section 11-C reads in part as follows: "With Cause. The board may elect to terminate the superintendent's employment upon thirty (30) days written notice to the superintendent, except as specifically provided herein, for cause defined as serious misconduct ..."

The contract specifies seven definitions of "serious misconduct," including conviction of a crime, acts of moral turpitude, willful malfeasance or gross negligence, fraud or embezzlement or theft, failure or refusal to perform her duties or obligations, refusal to obey governmental laws and regulations, and unsatisfactory performance after being given a reasonable time to rectify deficiencies.

McClain's salary for 2008-2009 was $168,000, and for 2009-2010 was $178,000. This does not include benefits: 30 paid vacation days annually, health and insurance benefits, 24 days annually of sick leave, an auto allowance of $400 monthly, the $16,000 STRS retirement fund contribution, and a housing allowance of $1,500 per month for the first six months of the agreement for relocation to San Diego County. These benefits are standard for many school district superintendents.

The contract took effect Sept. 17, 2008, and was to run through June 30, 2012.

The STRS clause, item 8-E in the contract, reads in part as follows: "... the board shall provide the superintendent retirement contributions in the amount of sixteen thousand dollars ($16,000). At her discretion, the superintendent may elect to use the retirement contribution payment to offset her employee contribution to the State Teacher Retirement System or to fund a tax-sheltered annuity, or some combination thereof. ..."

The STRS issue, which was eventually discussed in open session at a recent board meeting, was a bone of contention between McClain and the board since last summer.

"I know that she had requested that her STRS contribution be changed at no cost to the district," Rodriguez said.

McClain had asked the district to pay the $16,000 directly to her and she would then contribute to STRS. This would not cost the district any more money but would allow her to receive a higher pension.

This, McClain claimed months ago, was agreed to by the board last summer, although there appears to be nothing official in writing.

"It was a year ago when the board agreed in open session, unanimously agreed, to allow her to modify the way her retirement was paid at no cost to the district," Rodriguez said.

The board, however, stipulated that STRS would have to agree to the arrangement first.

Rodriguez said McClain was given direction "to check it out with STRS and with the lawyer and provide a way to make it happen."

When I asked Rodriguez if STRS rejected the plan, she said, "I believe so, yes."

But Rodriguez said the contract was written before she was elected to the board and that she was "uncomfortable discussing what was promised to her and what was not promised."

She said the issue "has become part of any kind of potential litigation we would have with her." So even though it was discussed in open session, she was reluctant to comment further.

When asked why she voted against releasing McClain, even though it appeared outwardly until the March 31 meeting that all five trustees were aligned on this issue, Rodriguez would not comment.

"I've been advised not to make comment on that question by our attorney," she said. "I stand behind my vote, but I'm not going to comment on it."

Neither would she comment on whether she believed McClain had breached her contract.

She asked the community to support the interim superintendent, Jim Peabody, during this time of transition and said everyone is supporting him as he takes the helm.

"It really is my sincere hope that we can move forward as a district," Rodriguez said. "I think that we will be in good hands with Jim in this interim period. That's the message I would like to send."

The message on the Web site of the Del Mar California Teachers' Association echoes Rodriguez's comments.

"Each member of this board takes his or her responsibility very seriously," the DMCTA message reads. "It is our desire that we ensure a smooth transition for a new superintendent. We truly believe that threats of retribution and litigation do very little to unify our community. The board has had to make a very difficult decision. Each board member agonized over making the decision, but it has been made, and now we are moving forward as a united board that is committed to providing a rigorous, inspiring and nurturing educational program for all our students."

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