McClain's attorney orders DMUSD trustees to state the causes for her termination

On June 1, 2010, former DMUSD superintendent Sharon McClain's attorney Elbie J. Hickambottom, Jr. of Gronemeier & Associates sent a letter to the DMUSD Board of Trustees reiterating Sharon McClain's prior request for a statement of cause(s) for her termination.

Hickambottom notes that by exercising her right to air the Board action terminating her employment contract in public session, McClain also waived her right to prevent potentially adverse information regarding her job performance from being publicized.

If McClain's lawsuit goes to trial, Hickambottom says he will file a motion to prevent any information about the reasons for McClain's termination that are not in the public record from being presented in court.

The Board of Trustees has until June 13 to satisfy McClain's request.

The letter from McClain's attorneys follows:

June 1, 2010

Steven McDowell, President
stevenatdmusd@yahoo.com
Dr. Annette Easton, Member
aeaston@san.rr.com
Doug Perkins, Member
doug4dmusd@yahoo.com
Comischell Rodriguez, Member
comischell@aol.com
Katherine White, Member
kwhite@shwx2.com
Board of Trustees
Del Mar Union School District

Re: McClain re Del Mar USD

Dear President McDowell and other Members of the Board of Trustees:

Dr. Sharon McClain has requested that the Board of Trustees provide her with a statement of cause(s) for her termination; to date, the Board of Trustees has failed to provide such a statement of cause(s). This letter reiterates her request.

As a general matter, the rationale for a governmental action such as the Board of Trustees’s termination of Dr. McClain’s employment contract on March 31, 2010, purportedly for cause, is determined based upon the rationale publicly articulated at the time of the governmental action. ⁽¹⁾ For sound policy reasons, California law generally disfavors discovery during litigation of the subjective motivations of members of governing boards for their actions as a board; one of the benefits of that policy is that it spares members of a governing board the burden of having to respond to deposition or trial discovery of their subjective motivations.

Moreover, where employers fail to articulate the rationale for employment terminations at the time employees are discharged, the law allows juries to draw an adverse inference to employers that their subsequently articulated rationales are false rationales invented post-hoc to cover-up an unlawful motivation. ⁽²⁾

Dr. McClain exercised her right to have the Board of Trustees’s action terminating her employment contract aired in a public session rather than in a closed session; she thereby waived any privacy right that entitled her to prevent assertedly adverse information about her performance that would presumably be the purported cause for terminating her employment contract from being publicly presented at the public session. Despite that waiver, the Board majority – and Mr. Shinoff, its representative who spoke at the March 31 meeting – failed to articulate during the meeting any cause for Dr. McClain’s employment termination. No closed session could legally have occurred concerning her termination given Dr. McClain’s exercise of her statutory right to require all proceedings concerning her termination be held publicly. ⁽³⁾ After the Board acted, Dr. McClain sent the Board of Trustees a request for a statement of cause(s), but the Board still has not articulated any cause for Dr. McClain’s employment termination.

As you presumably know, Dr. McClain’s position is that there is no good cause for the termination of her employment; rather, the three members of the Board majority asserted that there was cause simply for the purpose of trying not to make the contractual payment required for a termination without good cause. We would be pleased to proceed to litigate Dr. McClain’s entitlement based upon the current record of the Board of Trustees’s refusal to articulate any cause – i.e., its refusal at the time of the Board’s action and its refusal subsequently when Dr. McClain directly and now I on her behalf have requested a statement of cause(s). In a superior court action, you can expect that we will, among other things, file an in limine motion to restrict DMUSD to using the rationale in the public record rather than relying on Board Members to post-hoc assert their purported subjective motivations; that of course would leave the Board of Trustees without any cause to defend its position. If you would seek the advice of an independent and competent employment lawyer with trial experience on employment cases, I think you would get the sound advice that your stonewalling on the Board’s purported cause(s) for Dr. McClain’s employment termination is taking you down a dangerous road.

Our office has drafted a government code claim that is ready to be filed with the District in order to exhaust any claims-presentation requirements prior to filing a lawsuit. We will hold off filing it until June 13 to give the Board one last chance to publicly satisfy Dr. McClain’s request that the Board communicate the cause(s) for Dr. McClain’s employment termination. If the Board majority does not articulate the cause(s) for Dr. McClain’s employment termination, it will have to live with the consequences. Please govern yourselves accordingly.

Sincerely,

GRONEMEIER & ASSOCIATES, P.C.
By Elbie J. Hickambottom, Jr.
Attorneys for Dr. Sharon McClain

---

(1) See, e.g., County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 724-725.

(2) See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp. (1st Cir. 2000) 217F.3d46, 56 (summary judgment reversed where employer did not give the employee reasons for her terminating when it occurred but rather prepared a memo claiming performance deficiencies several weeks later when it became concerned the employee might file suit).

(3) If the Board of Trustees had discussed its purported cause for termination in closed session, doing so would have violated the Brown Act and thereby voided any action taken. Dr. McClain is not alleging that the Board did illegally determine its rationale; rather, she assumes that the Board did not violate the Brown Act.

More information:

• Gronemeier & Associates letter to DMUSD School Board re Sharon McClain
• Del Mar Times: Attorneys for former Superintendent McClain send letter to school board

That "Property Thing"

A DMUSD parent recently published a letter to the Del Mar Times regarding the DMUSD's tardiness in procuring a site for the district offices.

In her letter, Ms. Takahashi writes:

May of 2010 is when the District Office's rent on the Shores property increases 30,000-fold. Instead of paying $1 a year, DMUSD will be paying $30,000 a year from its general fund (the same general fund that pays teachers' salaries) to use the dilapidated office on 9th Street in Del Mar.

It was no secret that the lease payments would increase from $1 a year to $30,000 a year starting year 3 post-escrow. Members White, Easton, and McDowell were there.

May of 2010 is the date when the lease payments to the City of Del Mar increase from $1 to $30,000 annually, and it is true that members White, Easton, and McDowell were aware of this.

What the letter neglects to point out is that escrow on the Shores property closed on May 15, 2008 and that the original lease with the City of Del Mar was a 3-year lease, to expire in May 2011, 11 months from now.

The original lease specifies rent payments of $1 per year for the first two years, to increase to $30,000 annually in May 2010. There is still a year remaining on the original lease negotiated with the City of Del Mar.

On March 1st, former DMUSD superintendent Sharon McClain wrote a letter to the City of Del Mar requesting an extension on the lease of the Del Mar Shores property from May 15, 2011 to August 30, 2012.

McClain requested that the $30,000 annual payment be converted to a monthly payment at the end of the term of the original lease in May 2011, with a 60-day notice to vacate.

The preschool/childcare program currently housed at the Winston school would be vacated by the end of the original lease, May 2011. Maintenance and operation sheds would be vacated by June 30, 2011, to coincide with the end of the school year.

McClain also stated that the intent of the district was to move during the 2011/2012 school year.

The need to find a new site for DMUSD district offices should be a high priority to DMUSD trustees, but the $30,000 payment to the City of Del Mar for May 2010 to May 2011 is already part of the agreement negotiated back in the summer of 2007.

More information:

• Letter from Sharon McClain to the City of Del Mar to extend the Shores lease
• Minutes of the March 8, 2010 Del Mar City Council Meeting

Guys, how's it coming on that property thing?

Source: Del Mar Times

By Kate Takahashi
DMUSD parent

It's spring - May to be exact - and schools in Del Mar are buzzing with field trips, school plays and end-of-year parties. PTAs are balancing their budgets, organizing thank-you dinners, deciding their slate for next year. Principals have just completed the unfortunate task of deciding how to slice and dice their shrunken ESC programs, among their hundreds of other duties.

May also has a special significance for the DMUSD Board of Trustees. May of 2010 is when the District Office's rent on the Shores property increases 30,000-fold. Instead of paying $1 a year, DMUSD will be paying $30,000 a year from its general fund (the same general fund that pays teachers' salaries) to use the dilapidated office on 9th Street in Del Mar.

There has been plenty of time to find a new office. The Shores property was first considered surplus back in 1988, then again in 2005. Minutes from the Board meeting dated August of 2007 reveal a heads-up from then-Superintendent Tom Bishop that when the Shores escrow closes, the District will have 36 months to vacate the property.

It was no secret that the lease payments would increase from $1 a year to $30,000 a year starting year 3 post-escrow. Members White, Easton, and McDowell were there.

There has been plenty of effort. Next month, Colliers International agents will have spent one year showing DMUSD properties and land. The board members have seen at least 11 properties. If no deal has been made by June, the poor agents will have donated their time free of charge to the decision-masterminds at DMUSD. Trustee Comischell Rodriguez seems to be the lone board member who recognizes the urgency of this issue, as she urged her other colleagues to make a decision at a recent board meeting.

Real estate decisions may perplex this board majority, but other decisions that might prove gut-wrenchingly hard for most humans have been swiftly executed. Trustees White, Easton and McDowell decisively ended Tom Bishop's career at the DMUSD in 2008, sending him on his way with more than $300,000 of our kids' general fund money.

More recently, Trustees White, Easton and Perkins had no trouble deciding to fire Dr. Sharon McClain. (Steve McDowell abstained on the vote; he evidently could have gone either way on halting her career.)

Dr. McClain had barely unpacked her belongings in her new office when DMUSD Attorney Dan Shinoff started his expensive wild goose chase, searching for that great material breach of contract that we'll never hear of.

So the board CAN be decisive about certain things. It's just all the wrong things. In the meantime, the community wants to know: Guys, how's it coming on that property thing?