Del Mar Union School District attorney preparing response to public-records lawsuit

Source: Del Mar Times

By Marsha Sutton
Senior Education Writer

Del Mar parent Michael Robertson, who sued the Del Mar Union School District on Aug. 8 to compel the release of specific email documents, said he and his attorney received a letter last week from DMUSD attorney Dan Shinoff, of Stutz Artiano Shinoff & Holtz, saying Robertson can soon expect a legal response from the district.

"We were served with the lawsuit, and now we’re filing a response to the lawsuit," Shinoff said. "We’re going to ask for a hearing on it on an expedited basis."

"I’m fascinated to hear what they’re going to say on why they shouldn’t have to give us this," Robertson said. "I don’t know what reasonable explanation these guys could have."

Robertson submitted a California Public Records Act request May 10, asking the district for all communications related to the California Teachers Association’s Week of Action held May 9 to 13. The state’s largest teachers’ union promoted the Week of Action as a way to raise awareness and encourage parents and the public to support increased funding for education.

Robertson filed his CPRA request to review correspondence among district employees, school board members and CTA organizers because he suspected that the district was working with the CTA to coordinate political action, which he said is inappropriate.

Also named in the suit is DMUSD school board president Comischell Rodriguez, for access to her personal emails related to the CPRA request.

Because she "possesses, maintains and controls records responsive to Petitioner’s requests that are not maintained in files" at the district’s offices, "Rodriguez is an indispensible part to this litigation," reads the suit.

Robertson said the chances of settling the case out of court are low. "The odds of them saying, ‘Okay, you win’ is zero," Robertson said, vowing to continue litigation to its final conclusion.

Robertson said he was "astonished" that the district would proceed with the litigation. "This will be a giant case, blowing through tens of thousands of dollars, when they should just turn over the damn documents," he said. "This is money that should be going toward pure educational needs. It should not be going to Stutz Artiano Shinoff & Holtz."

In a May 27 letter to Robertson, the district said the request was "vague, overbroad and burdensome," that it was "unrelated to the conduct of the public’s business," and that the records are "exempt from disclosure because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure."

Robertson was critical of the district’s objections. "The outside law firm is happy to burn up DMUSD tax dollars dreaming up creative arguments about why they shouldn’t have to abide by the California Public Records Act like every other government organization," he said. "Their attitude is, they don’t work for us [and] they should get to decide what information we get. We should just be content with whatever they decide."

When asked why the district did not release all the emails, Shinoff said there are no more documents to be released. "We’ve provided him every public record that he’s asked for," Shinoff said.

Robertson said he has received some emails from the district, but the documents released are incomplete and not fully responsive to his CPRA request. [see below]

Regarding the personal Rodriguez emails sent to and from her private accounts, Shinoff said those are protected by law. "The United States Supreme Court has already ruled on this issue," he said.

A public record, Shinoff said, is defined as "something that is maintained and controlled by the governmental agency," not by private individuals. He said the Supreme Court decided this issue under the Freedom of Information Act, which is the model for the Calif. Public Records Act.

"If Mr. Robertson wants to have a different position in the state of California, he gets to make new law," Shinoff said.

But Robertson said this is uncharted, potentially precedent-setting territory and that the personal emails are public documents. "Our contention is if it was used to do district business, it shouldn’t be protected," he said.

Shinoff said the district has complied with the CPRA request and there are no more documents to release.

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Emails released by DMUSD

By Marsha Sutton
Senior Education Writer

Emails released by the Del Mar Union School District to Del Mar parent Michael Robertson, in response to his California Public Records Act request for communication between the state California Teachers’ Association and representatives of the DMUSD, show that the district used CTA guidelines and recommendations to plan and coordinate events and activities for last May’s Week of Action.

Robertson asked for all emails related to the Week of Action, which was organized by the CTA and many local school districts to increase awareness and support for increased education funding.

Although Robertson said the district has more undisclosed documents, he said those he was given show a clear link between the district and the state teachers’ union.

David Skinner – former president of the Del Mar California Teachers Association, a member of the statewide CTA – wrote to DMUSD superintendent Jim Peabody April 21 asking to meet.

"We (DMCTA) are planning some activities to increase awareness of the state budget situation among our teachers and parents," Skinner said in the email. "I would like to see if we can coordinate our energies with any district initiatives. Perhaps we can plan some things to show a unified front."

DMUSD Trustee Kristin Gibson wrote to Peabody on April 22 that she and fellow trustee Scott Wooden "attended a DMCTA PAC meeting and we discussed the California State of Emergency Week of Action that CTA and CSBA [California School Boards Association] are promoting."

"Our PAC wants to be involved, and would like the support of the board," Gibson wrote.

Amy Hunter, political organizer for Region IV of the CTA, wrote to Skinner and Ocean Air teacher Carol Sharpe April 22 and provided a number of documents for them, including telephone scripts ("one for a board member or superintendent"), a sample resolution for the school board ("this needs to go to Kristin Gibson"), and a link to the State of Emergency Web site which offered talking points, flyers, sample letters to the editor and other information.

"Let me know what else I can help with," Hunter wrote. "You guys are going to rock this out!!!"

Sycamore Ridge teacher Debbie Hanna, who identified herself as a member of the DMCTA PAC, sent Peabody an email April 28 with an attached script for an all-call recorded telephone message to parents in support of the Week of Action. "If you would be so kind as to make this all-call," she wrote.

On May 4, Del Mar Hills teacher Eric Bienke wrote to Hills PTA president Mara Bickett, asking her to sign the Week of Action letter instead of him. "I was kind of envisioning that the email would be coming from the PTA, urging its members to get involved, and not coming from me personally," Bienke wrote. "I think parents are going to be confused as to why I am sending this email out to the entire parent community."

Skinner wrote to Peabody May 4 with a draft letter that he asked Peabody to review and sign, to send to parents and the media highlighting the Week of Action’s activities. "Thanks for helping; it’s turning into a true ‘saturation campaign!’" Skinner wrote.

"It is a wonderful letter," Peabody replied.

Gibson suggested adding a sentence to the letter about the loss of some of the district’s temporary teachers. The sentence read in part: "We were forced to release 25 of our temporary teachers … this is a tremendous loss."

"It works well for me," Peabody replied, of the letter. "Besides principals, district office, board members, and PTA folks, who do you want me to track down to sign?"

Union involvement

Robertson said the emails "clearly show that the CTA directs the DMUSD school board, school administration and teachers to engage in an overt political campaign."

He said the DMCTA PAC "directed the superintendent to place all calls" and told the schools to host meetings. "The school board was told what resolution to pass and all the literature came from the CTA," he said.

"When the administration and board simply become employees of the CTA who directs their actions, then the system becomes perverted and fails," Robertson said.

School board president Comischell Rodriguez reacted with surprise to Robertson’s charges. "We are not endorsing a candidate nor a party," she wrote in a May 6 email to Peabody. "We are doing our job to defend and be a part of the greater educational conversation."

"My thoughts exactly!" Peabody responded.

Depositions allowed in lawsuit against Del Mar school district

By Marsha Sutton
Senior Education Writer

Source: Del Mar Times

Over the defendant’s objections, a judge ordered at a hearing held Aug. 19 that depositions could be taken of former Del Mar Union School District board members Steven McDowell and Annette Easton, in the case of Sharon McClain vs. the DMUSD.

Other rulings overturned DMUSD’s objections to providing documents and interrogatory responses to former DMUSD superintendent McClain.

Attorney Dale Gronemeier, who represents McClain in her case against the school district for wrongful termination, called it a very successful hearing.

"We’re starting to get the information we need," Gronemeier said. "I think we have broken down an approach to the litigation where the other side was thinking that maybe they could prevent us from getting meaningful discovery."

Gronemeier requested the McDowell deposition in March, but DMUSD’s legal counsel made a motion to quash the notice of deposition.

"They immediately asserted that it was improper because of what’s called the deliberative process privilege," said Gronemeier, explaining that the deliberative process privilege is a rule of law that does not permit inquiry into the motives of legislators.

The defendant, Gronemeier said, was claiming that members of an elected school board cannot be subpoenaed because they are legislators. But he said the issues in this case were administrative, not legislative, and the deliberative process privilege applies only to legislative acts.

Furthermore, he said the rule doesn’t mean one can’t take a deposition, but objections may be raised to certain types of questions.

Ryan Church, an attorney with Stutz Artiano Shinoff & Holtz, explained in a May 12, 2011 article in this newspaper that the deliberative process privilege prevents public board members from being deposed and bars judicial inquiry into the motives of public officials.

"You’re not supposed to be able to take board members’ depositions," Church said. But the court did not agree.

"Defendant’s deliberative process privilege objection is overruled," read the court documents. According to the court, "under the circumstances of this case, the strong public interest in ascertaining the truth in judicial proceedings outweighs the public interest in nondisclosure."

Two of Gronemeier’s motions, both granted, asked for the depositions of McDowell and the Person Most Knowledgeable (PMK) about the issues. He said the district and its legal advisors identified Easton as the PMK.

"The entity has the right to select the person," Gronemeier said. "I can’t impose who they are."

"We’ve agreed to allow them to be deposed," said DMUSD attorney Dan Shinoff, of Stutz Artiano Shinoff & Holtz.

McDowell’s deposition was held Sept. 21 and lasted about six hours. Easton’s deposition is scheduled for Sept. 30, and Gronemeier said it may take three or four days. "There are a lot of facts in this case, a lot of details," he said.

Shinoff said the judge at the trial will rule whether the information obtained by the depositions can be used as evidence. "For purposes of admissibility in trial, he’ll rule on it on a question-by-question basis," Shinoff said.

Gronemeier said the testimony obtained from a deposition is valuable even though little of it is read in court. "I use it in the sense that I know what the person’s going to say," he said.

Gronemeier will also seek the depositions of Doug Perkins, Comischell Rodriguez and Katherine White, the other three trustees who served during McClain’s tenure, because "the only people who have real knowledge of most of the events in dispute in the lawsuit are the five board members and Dr. McClain," he said. Only Perkins and Rodriguez are still DMUSD board members.

McDowell deposition

McDowell was chosen first, Gronemeier said, because "we viewed him as a good starting point in this process."

"Lawyers learn a lot in depositions, and you build an understanding from the depositions," he said. "So by the time you get to the most important witnesses, you sharpen your knives quite a bit more."

Gronemeier would not disclose specifics of McDowell’s deposition except to say that questions were related to McClain’s contention that the board did not have good cause to terminate her.

Termination for good cause, he said, requires an honest and thorough investigation. "So we’re looking at how adequately they conducted the investigation," he said.

McDowell was also asked about his decision to abstain from the vote to release McClain, Gronemeier said.

Shinoff said the focus of the case is not why McDowell abstained. "The issue will be, did she or did she not breach the contract," he said. "That’s the whole issue."

McDowell was asked "all kinds of questions," Shinoff said, "and he explained himself. He also provided the reasons why he thought there were very serious performance issues [with McClain]."Both McDowell and Easton declined to comment.

Stutz Artiano attorney Jack Sleeth, considered an expert on closed-session open-meeting laws, handled the McDowell deposition and will represent Easton for her deposition Sept. 30.

Gronemeier said depositions can be contentious and are often an adversarial process. "But this was not a deposition where there was a lot of hostility," he said.

Gronemeier praised Sleeth for his professionalism, calling him a very good lawyer. "Jack asserted many objections, most of which were to closed-session discussions," he said. "Some were to attorney-client privilege. I have no criticism of the way he handled the deposition."

Shinoff said Sleeth’s hourly rate is $170, to be paid by the DMUSD and its litigation insurance. Gronemeier said the cost of a deposition for his side will run about $1,000 per day for the court reporter, plus attorneys’ fees.

The other rulings

The hearing on Aug. 19 ruled on five motions, two on the depositions and three that overruled DMUSD’s objections to produce documents and answer interrogatories.

"Essentially it means I won on all the substantive issues," Gronemeier said. He had sought monetary sanctions against the DMUSD, but that was denied.

Gronemeier filed the motions to seek relief for what he claimed were the district’s delaying tactics. "What they were saying is that Dr. McClain can get no deposition discovery," he said.

When Shinoff’s firm requested documents and asked for a deposition of McClain, which took place over three days in June, "we didn’t stonewall," Gronemeier said. "We don’t jerk people around in discovery."

Shinoff had earlier alleged that it was Gronemeier who was delaying the process.

Besides documents, Gronemeier said the DMUSD also refused to release information about witnesses. "That got knocked down, and they have now provided the addresses and phone numbers of about 50 people they have listed as witnesses," he said.

He also just received about one thousand pages of documents from the DMUSD that he had requested.

Shinoff minimized the importance of the August decisions, saying, "It was some names that they asked for that we provided, but that was the extent of the ruling."

"It’s just part of discovery, and it has nothing to do with the merits of the case," Shinoff said.

McClain was hired by the DMUSD on Sept. 17, 2008, at a base salary of $168,000, through June 30, 2009, the end of the fiscal year. Salary increases in the contract are listed as $178,000 for 2009-2010, $183,000 for 2010-2011, and $188,000 for 2011-2012. She was released from employment March 31, 2010,

In her formal complaint, she claimed the DMUSD breached her agreement on a number of grounds, calling the conduct of the DMUSD "arbitrary and capricious."

The district’s evaluation, written September 2009, charged that McClain’s performance constituted a "breach of material terms" of the contract and cited deficiencies, willful neglect, failure to uphold contract provisions, and a "general inability to be effective."

The performance review was signed by all five board members. The vote seven months later to terminate McClain’s employment, however, was 3-1-1, with Rodriguez opposed and McDowell abstaining.

Gronemeier said McClain seeks just compensation. "Our position is they have never … given her the proper notice, and her salary is still accruing," he said. "The contract continues in force. It wasn’t properly terminated." McClain seeks salary through June 30, 2012, the end of the contract.

McClain also contends that her retirement income was diminished by the loss of the extra years of salary. "The reduced pension benefits are very significant damages," Gronemeier said.

In addition to monetary compensation, McClain is seeking the restoration of her standing in the community.

"She has been a very successful woman in her professional career, and what they did to her sullied her reputation," Gronemeier said. "She wants vindication for that, and appropriately so."

Despite the setbacks last month, Shinoff remained sure of his case. "I’m still very confident in the merits of my position," he said.

Del Mar school district pays teacher’s legal costs

Source: Del Mar Times

By Marsha Sutton
Senior Education Writer

The Del Mar Union School District agreed to pay a teacher’s court costs and legal fees when the teacher filed a harassment charge last spring against a parent at her school. The teacher claimed the parent, the mother of several children at the teacher’s school, was threatening the teacher and endangering the students at the school.

The teacher, and the district, lost the case when the judge ruled in favor of the defendant, the parent, after a court appearance that included testimony from the teacher, the parent and the school’s principal, Wendy Wardlow of Del Mar Heights School.

The alleged erratic behavior started when the teacher began dating the mother’s now ex-husband (the mother and father were separated and in the process of divorcing at the time).

After the teacher reported to the school’s principal that the mother had made offensive and threatening statements to her, Wardlow alerted DMUSD superintendent Jim Peabody, who brought the issue to the district’s lawyer Dan Shinoff, of Stutz Artiano Shinoff & Holtz.

Shinoff advised the school district to take the threat seriously and to pay the teacher’s litigation costs. The district became involved, he said, "because of the safety of the kids on campus."

After handling three school shootings in San Diego County, Shinoff said he weighed the risks carefully and recommended that the district support the teacher. "The school district’s interest was to make sure that all students and staff were safe which is its constitutional obligation," he said.

If the district had not taken the reported threats seriously and someone had been hurt, Shinoff said people would view the tragedy as having been foreseeable and would consider that those "in loco parentis had recklessly disregarded the obvious."

"That’s a huge calculated risk," he said.

Shinoff had no regrets about advising the district to take the case. "It’s easy to be a Monday morning quarterback," he said in an email.

The harassment case began on April 25 when the teacher filed a temporary restraining order against the mother, which was granted. The mother was ordered to stay at least 100 yards from the teacher until the formal hearing on May 13.

At the May 13 hearing, after testimony, the restraining order was dissolved and "denied with prejudice," meaning the case cannot be filed again.

"The court initially granted the request for a temporary restraining order and later declined to grant a request for a longer term injunction," Shinoff explained.

The case cost the district about $6,700, said Peabody — $2,875 to Shinoff’s firm to represent the plaintiff (the teacher) in court, and $3,800 to the defendant for her attorney’s fees.

After finding in favor of the defendant, the court ordered the teacher to pay $3,800 to the defendant for reimbursement of legal fees. The DMUSD school board then met in closed session and agreed to pay the $3,800 owed by the teacher to the mother. It was after the case was officially closed in August that the district disclosed that the school board had agreed to cover these costs.

The mother said her defense cost $4,500, and she will try to collect the remaining $700 in small claims court.

Del Mar Union’s legal battles

Source: Del Mar Times

By Marsha Sutton
Senior Education Writer

Bowing to the Great Bureaucracy, I reluctantly paid the San Diego County Office of Education $1.52 to receive a piece of paper listing all the legal fees incurred from December 3, 2010 to August 2, 2011 for the Sharon McClain vs. Del Mar Union School District litigation.

Although this information should be made available to the public without having to jump through so many hoops, particularly considering that it was a single, readily accessible page, sometimes it’s easier to give in than stand and fight on principle, when the amount of money is so minimal.

So that’s how we know the cost of this lawsuit is approaching $90,000 so far, excluding the hearings that took place last month and all the hearings and court actions yet to come.

McClain, the former DMUSD superintendent, sued the district last October after she was released in March 2010. In 2010, before the suit was filed, DMUSD superintendent Jim Peabody said the legal fees incurred by the district were $12,762.

Once the suit was filed, the district’s litigation insurance carrier, the San Diego County Schools Risk Management Joint Powers Authority, took over. At that point, all legal fees were covered by the JPA, less a $1,000 deductible and the district’s annual premium of $21,808, Peabody said.

According to information provided by SDCOE on that piece of paper, the insurance carrier paid $74,896.45 — all of it, except about $3,600 — to the district’s law firm on the case, Stutz Artiano Shinoff & Holtz. With the district’s $12,762, this brings the total to about $87,600, to date.

Back in May, I attempted to learn the costs without having to comply with SDCOE’s ridiculous demand for $1.52 to receive the information. But Diane Crosier, SDCOE’s executive director of the San Diego and Imperial County schools JPA, refused to comment, referring me instead to DMUSD attorney, Dan Shinoff.

Shinoff did not reveal specifics but suggested that McClain’s attorney, Dale Gronemeier, was "trying to make it as expensive as possible."

Gronemeier, last week, objected to this comment, saying that Shinoff’s firm was the one employing delaying tactics and driving up costs.

In Sept. 14 and Sept. 15 emails, Gronemeier wrote, "The Shinoff firm has stonewalled on discovery since last December by filing evasive responses and baseless objections to interrogatories and document demands and by refusing to allow Board of Education members to be deposed."

He said Shinoff and his team "would not legitimately respond to the most obvious and simple discovery requests" and unnecessarily increased billing hours.

Gronemeier said Shinoff’s firm is paid an hourly rate, while his firm "is a hybrid partial hourly, partial contingent fee arrangement."

He said his fee structure pays most but not all of his firm’s overhead costs. To be paid personally, Gronemeier said he has to win the case. So billing extra hours, he said, "decrease[s] my firm’s profits from which I get paid rather than increasing them." He said his firm’s payment structure "disincentivizes me from milking a case."

The courts validated Gronemeier’s complaints, he said, at a hearing Aug. 19 when the judge ruled that the school district needed to provide documents requested months ago and allow the depositions of specific board members.

Regarding a possible settlement, DMUSD trustee Doug Rafner, in an email to Peabody dated May 17, 2011, wrote, "I personally would like to discuss resolving this case in some way that does not involve running the district through the mud. Would the ‘insurance’ pay for a settlement of a case, or only for judgments?"

Peabody responded to Rafner, writing, "We will get this on the agenda for the next meeting."

As this case churns through the courts, talk of a settlement seems to have dissipated.

CPRA lawsuit

These McClain-related emails were among those released by the district to Del Mar parent Michael Robertson after he filed a California Public Records Act request May 10 on an unrelated topic: the Week of Action last spring sponsored by the California Teachers’ Association, which was organized to rally parents and teachers to support more funding for education.

Robertson said the material he received was incomplete, and that the district and its lawyers (Stutz Artiano Shinoff & Holtz) were unresponsive to repeated attempts to obtain all requested documents related to the Week of Action.

On Aug. 8 he filed a lawsuit against the DMUSD to force the district to comply with the CPRA request. To date, the district has not responded to the suit, he said.

A letter supporting Robertson from former Del Mar parents John and Susan Miller was entered into the public record at the school board’s July 27 meeting. The letter expressed "concern and disappointment with the district’s apparent reluctance to respond" to Robertson’s CPRA request.

"The community expects our elected and appointed leaders to fully embrace and promote the concept of complete transparency," the Millers wrote, asking the district to stop "delaying requests for information that belongs to the public."

Of all the excuses the district gave for denying Robertson’s request (a letter dated May 27, 2011 from DMUSD assistant superintendent of human resources, Tim Asfazadour, offers a number of reasons), none was more outrageous than this one: that the records sought are exempt from disclosure "because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure."

It’s hard to believe a public employee would actually put a provocative statement like that in print. Makes you wonder what they’re hiding.

Unless the documents contain national security or nuclear secrets, no public interest can be served by suppressing this material. To claim the district can withhold what’s clearly public information to "safeguard the public interest" is patronizing, officious and insults our intelligence.

Meanwhile, taxpayer money is being spent to fight Robertson in court. Don’t expect Robertson to cave. This will drag on until the DMUSD releases those documents.

Marsha Sutton can be reached at SuttComm@san.rr.com.

Fiscal Doves at Del Mar's Bargaining Table

Source: Del Mar Times

By Marsha Sutton

My reason for attending my first Del Mar Union School District board meeting in nearly a year last week was an item on the Aug. 24 agenda to discuss, somewhat belatedly, the $500,000 cash bonuses given last fiscal year to all DMUSD employees using Federal Education Jobs Fund money.

After stories appeared in the June 30 and July 28 issues of this newspaper, public outcry over the misuse of the money triggered school board president Comischell Rodriguez to place the item on the August agenda.

Why this matter was not thoroughly discussed before, rather than after, the board voted last December to approve the giveaway is a question worth asking.

Rodriguez tried without success to blame the previous board, of which she was a member, for approving the bonuses. Since the issue was negotiated with the teachers’ union in the fall of 2010, she asked DMUSD superintendent Jim Peabody why the school board vote was delayed until the new board’s first meeting in December 2010.

Peabody said the union needed time for its member teachers to vote on the matter. (Why the teachers were voting on it before the school board had approved it is another question worth asking.)

The board packet offered two explanations for giving each full-time employee $1,000 of federal money (totaling about $500,000) that was intended to be used to "save or create" teaching jobs.

The first explanation was that the district hired 12 new teachers during the 2010-2011 school year, and, according to Peabody’s report, "the expense of adding the teachers was slightly higher than the one-time funds provided by the Federal Jobs Fund."

The implication of this argument was that none of the Jobs Fund money should be used for that purpose since the available money could only partially cover the cost for one year of the 12 teachers’ salaries.

That should leave you speechless. This is a perfect example of exactly what the money was intended for, whether it fully covered the salaries or not. It would have saved $500,000 from the general fund.

Peabody’s second point, which the board primarily focused on, concerned teachers’ complaints about rising health care costs. Peabody set up a false dichotomy, saying the district could either offer $1,000 to each employee to help cover rising health care costs, or the district could raise the health insurance cap for employees, which would mean a $500,000 annual, ongoing increase in district expenses.

"By providing one-time funds instead of an ongoing commitment, the district reduced its obligation by $500,269 a year," Peabody’s board report reads.

But this assumes those were the only two options. How about not doing either? I didn’t see anyone holding a gun to Peabody’s head.

The district’s foundation is charged with asking/begging parents to donate money to save Extended Studies Curriculum (ESC) teachers’ jobs each year. This will be a task made all the more difficult after parents see that the district frittered away $500,000.

Besides using it for ESC, the money could have supported for one year the bulk of the salaries of those 12 new teachers. Or it could have been used to pump up the district’s reserves so other programs including low class sizes could be maintained. Or paid for librarians. Or classroom aides. Or science and technology lab aides. Or … or … or …?

Choosing a different path

The Solana Beach and Rancho Santa Fe school districts used their Federal Education Jobs Fund money to pay for the salaries of temporary teachers who would have been let go had it not been for this federal money.

Without the funding, Denise Stevenson, Rancho Santa Fe School District’s director of finance, said teachers would have been released, programs would have been eliminated, or class sizes increased.

The San Dieguito Union High School District used its $2.4 million in Federal Jobs Fund money to offset the general fund’s classroom teacher expense. By using the Jobs Fund money to substitute for money that would have come from the district’s general fund to pay for salaries, the district was able to free up unrestricted general fund money and avoid further budget cuts.

During a time of drastically slashed education budgets, Del Mar decided not to offset its declining general fund, choosing a different path.

Tim Asfazadour, DMUSD’s assistant superintendent of human resource services, said the goal of the Federal Jobs Fund was "to save the jobs of current employees," and that the $1,000 per employee cash incentive saves employees’ jobs because "it keeps them from potentially leaving the district and looking for other jobs."

Del Mar teachers were threatening to leave? Really? During a time when no district is hiring new teachers and no district has such a benefits-rich contract like Del Mar’s, there were worries about teachers quitting?

Peabody stood by his decision, saying, "I think it was a good thing to do for these families."

Trustee Kristin Gibson rejected the option of using the money to pay teachers’ salaries for one year, saying, "The idea of investing in a person for just one year seems unwise and not very decent either."

Who can follow this logic? My guess is that teachers on the chopping block wouldn’t mind working another year, even without future job security.

Gibson defended the decision, saying options were limited because the money could only be used for "compensation and benefits."

What she neglected to mention is that "compensation and benefits" included employees other than teachers who provide support services at school sites, as well as "support services necessary to retain existing employees, to recall or rehire former employees, and to hire new employees."

The funds by law could not be used on district office personnel. But because the school board approved giving $1,000 to every full-time employee in the district, not just those at school sites, employees at the district office, including Peabody, were paid with $21,000 from the general fund.

Fiscal hawks?

The two self-proclaimed Republican conservatives on the board, Scott Wooden and Doug Perkins, also defended the decision. Wooden said that applying a one-time use of funds in this way was preferable to the long-term "raise the cap" health care option that would incur a financial burden on the district every year.

Perkins also ignored this false dichotomy premise. Calling himself a "fiscal hawk," Perkins said he looks for "ways to reduce ongoing expenses from year to year," and the cash bonuses looked like one way to do this.

If Wooden and Perkins are examples of Republican fiscal hawks, then those birds have no beaks or claws.

The entire self-congratulating discussion reminded me of the popular quote: "It is better to remain silent and be thought a fool, than to open your mouth and remove all doubt."

Meanwhile, at the same board meeting, trustees reviewed a letter from the San Diego County Office of Education on the district’s 2011-2012 adopted budget.

"The district is projecting deficit spending in its unrestricted general fund of $1.51 million in 2010-2011 and $4.89 million in 2011-2012," the letter reads.

There’s more. "The multi-year projection shows deficit spending in the unrestricted general fund of $6.09 million in 2012-2013 and $7.02 million in 2013-2014. With this level of deficit spending, the district would be able to meet the 3% [required] reserve in 2012-2013 but would have a negative ending balance of $5.07 million in 2013-2014."

Granted, $500,000 in Federal Education Jobs Fund money to pay teachers’ salaries would help the general fund for only one year. But it beats not doing it, given the dire fiscal situation Del Mar is about to face.

The irresponsible allocation by the Del Mar Union School District of the Federal Education Jobs Funds during a financial crisis is a monumental misuse of taxpayer money and an embarrassment for the local community.

Marsha Sutton can be reached at: SuttComm@san.rr.com

Del Mar school board addresses concerns over cash incentives decision

Source: Del Mar Times

By Karen Billing
Staff Writer

In response to some e-mails from parents voicing concern, Del Mar Union School District Board President Comischell Rodriguez requested that the board discuss the allocation of Federal Education Job Funds, approved in December, at its Aug. 24 meeting.

The board voted to use its Federal Education Jobs Funds, which is federal money intended to save or create jobs, to give $1,000 in cash incentives to all employees, amounting to a total of about $500,000.

At the meeting, parent David Wojtkowski said he questioned the board’s rationale in approving the allotment. He said he is always very supportive of teachers but thought that the bonus was "irresponsible in these times."

On average, there was a 14 percent increase in health insurance costs and the board said money given helped to offset the rising costs.

"I know that you can slice up the dollars a lot of different ways and I looked at every aspect," Peabody said. "Every board can do it in a lot of different ways. I think what we did was a good thing for the families of the district’s staff to offset those increases in insurance because we have a lot of staff with growing families."

Peabody said there were 32 staff pregnancies in the district last year and it looks to be the same number this year.

Trustees Doug Perkins and Scott Wooden said their thinking in approving the allocation was that it was a one-time payment versus a payment that would compound year after year.

Perkins said he has pledged to be a "fiscal hawk" and in hard economic times they must look for ways to reduce ongoing expenses and this looked like a way to do that.

Perkins said he is still looking to implement one of the ideas that came out of the Financial Task Force, which is to allow employees to opt-out of insurance to save money—if 5 percent of employees opted out, it would save the district around $250,000.

"I’m very sensitive to the budget and where we’re headed," Perkins said. "I want to make sure we’re doing the right thing with your money."

The federal government allocated about $1.2 billion in Jobs Fund money to California school districts, the purpose of which, according to a fact sheet distributed by the California Department of Education, is "to save or create an estimated 16,500 kindergarten through grade twelve (K-12) jobs."

The federal money was given to all school districts in the nation, and U.S. Department of Education guidelines offer a number of options for spending the money, which is to be used "only for compensation and benefits and other expenses, such as support services necessary to retain existing employees, to recall or rehire former employees, and to hire new employees, in order to provide early childhood, elementary or secondary educational and related services."

According to the Calif. Dept. of Education, "This includes salaries, performance bonuses, health insurance, retirement benefits, incentives for early retirement, pension fund contributions, tuition reimbursement, student loan repayment assistance, transportation subsidies, and reimbursement for child care expenses. Funds may be used to restore reductions in salaries and benefits or to implement increases. They may also be used to eliminate furlough days."

The funds may also be spent on employees other than teachers who provide support services at school sites. But the money cannot be used for "administrative expenditures related to the operation of the superintendent’s office," board members, fiscal services or human resources.

Del Mar Union School District sued to release documents

Source: Del Mar Times

By Marsha Sutton
Senior Education Writer

Del Mar parent and resident Michael Robertson filed a lawsuit against the Del Mar Union School District Aug. 8, charging the district with withholding public documents Robertson requested May 10 under the California Public Records Act.

Also named in the suit is DMUSD school board president Comischell Rodriguez, for allegedly not disclosing personal emails related to the CPRA request that were sent to and from Rodriguez’s private email accounts.

"Because Respondent Rodriguez possesses, maintains and controls records responsive to Petitioner’s requests that are not maintained in files located in Respondent District’s offices, Respondent Rodriguez is an indispensible part to this litigation and must be included as a respondent in order for Petitioner to obtain complete relief," reads the suit.

Robertson submitted a CPRA request on May 10 for access to files, documents and records relating to contact from March 1, 2011 between employees and representatives of the DMUSD and the California Teachers Association, a statewide teachers union of which the Del Mar California Teachers Association is a member.

This request was later expanded to include communication among and between Rodriguez, DMUSD superintendent Jim Peabody, the DMCTA and its representatives, the CTA, and the California School Boards Association (CSBA).

Robertson’s Public Records request was triggered by a CTA-organized "Week of Action" held May 9 to 13. A resolution to support the Week of Action was passed by the DMUSD school board at its April 27 meeting.

Robertson objected to Peabody’s recorded, automated telephone call to all Del Mar parents asking for their support of the week’s activities, and to flyers produced by the CTA that were distributed to parents by Del Mar schools’ PTAs. The flyers asked parents to call or email legislators to urge them to back more money for schools.

Saying this was "clearly calling for political action which is in violation of California law," Robertson criticized the flyers and the school district’s actions that he claims inappropriately supported the union’s mission.

A May 27 letter from the DMUSD in response to Robertson’s May 10 CPRA request provided three primary reasons for not fully complying, citing court cases to support each point.

First, the letter stated, "The district objects to the requests as they are vague, overbroad and burdensome."

"That is typical legal babble," Robertson said. "They pay an outside firm to just object on every possible grounds." He contends there is nothing vague about his requests. "It’s a shame that they’re spending money on attorneys to block perfectly legitimate requests."

The district’s letter also stated, "In addition, the district objects to your requests insofar as they seek any information unrelated to the conduct of the public’s business."

In a May 27 letter back to the district, Robertson wrote, "How DMUSD is run and who they communicate with, and this includes with outside agencies, is the public’s business. My request is completely within that scope."

The district, in its letter, offered a final objection: "The district further objects to your requests insofar as they seek records exempt from disclosure because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure."

Robertson responded to this by writing, "If you want to argue that pathetic excuse in court, I suppose it’s the district’s prerogative. But to spend money that should be used to educate children on attorneys to hide its interactions with the California Teachers Association seems like gross mismanagement to me."

Peabody wrote back to Robertson, in a June 1 letter, saying he was disturbed by the "accusatory tone" of Robertson’s last correspondence, and asked for courtesy.

"Your negative commentary which, amongst other things, charges that the district ‘is hid[ing] documents,’ likens the district’s response to your request as a ‘pathetic excuse,’ and threatens litigation, is inaccurate and mistaken," Peabody wrote.

Peabody said over 4,000 documents had to be reviewed, which he called a time-consuming process. "We have no interest in ‘hiding documents’ as you’ve charged, and no desire to engage in unnecessary litigation," he wrote.

In a same-day reply, Robertson wrote, "I’m sorry you are offended by my harsh words, but to be clear I am accusing the district of hiding communication documents between the CTA and district employees. … After initially being met with cooperation and promises to search email repositories, I have since been stonewalled. Yes, my words will grow harsher and my actions will too, because as [a] citizen this is my only recourse."

Patience worn thin

Pages of documents were then provided to Robertson, but they were unresponsive to his request, he said. A letter from the school district’s attorney on this case, Dan Shinoff of Stutz Artiano Shinoff & Holtz, said the district has cooperated fully.

"If you know of communications that are responsive to your CPRA requests and that the district has not produced, kindly identify them and the district will gladly produce the documents if it is in possession of them," Shinoff wrote.

"This is not a game called ‘hide the document until a citizen knows it is in existence,’" Robertson replied. "The very purpose of the CPRA is to reveal documents that citizens do not have knowledge of."

"My patience has worn thin," Robertson wrote. "I have waited for many weeks and still get stonewalled by the district. It’s baffling behavior and it appears that the district is daring me to file a lawsuit to compel action."

Subsequently, over 100 pages of emails were sent to Robertson. Although many of the pages pertained to the lunch program and other unrelated topics, emails directly related to Robertson’s requests were provided.

Still dissatisfied with what he said was a "woefully inadequate" release of requested material, Robertson blasted the district for what it did provide, saying the documents clearly show that the Week of Action campaign originated from the CTA.

"The school board was told what resolution to pass and all the literature came from CTA," he said, adding that the all-call telephone script read by Peabody was also written by the CTA.

"When the administration and board simply become employees of the CTA who directs their actions, then the system becomes perverted and fails," Robertson said.

Rodriguez, in an email to Peabody regarding Robertson’s complaints, wrote, "Surprising. We are not endorsing a candidate nor a party. We are doing our job to defend and be a part of the greater educational conversation."

"My thoughts exactly," Peabody responded.

No monetary compensation

Peabody had no comment on the lawsuit, saying as of Monday the district had not been served. Rodriguez did not respond to phone calls or emails for a comment.

Robertson, a technology entrepreneur who is the founder and former chief executive officer of the digital music company MP3.com, said he’s not seeking monetary compensation and only wants the documents released.

"This isn’t about getting money," he said. "This is about making sure that the Del Mar school district is responsive to citizen requests, which it hasn’t been. I’ve wrestled with these guys for months."

His complaint states, "Unless Petitioner is allowed access to the information he seeks, the public will be denied information prepared at public expense by public officials pertaining to the conduct of the public’s business, access to which is essential to scrutinize government."

Robertson said the district has three weeks to respond to the lawsuit. "I’m puzzled why they haven’t turned over the documents already," he said. "It’s baffling. For some reason Del Mar thinks they are above the law."

Answering a query from this newspaper on this issue in May, Peabody said, "I don’t believe the district did anything wrong."

"Thanks for hanging in there on this," wrote Rodriguez to Peabody in an email obtained by Robertson. "You’re doing great. And you’re right. We did nothing wrong."

San Diego Unified to review public records policy following complaint

Source: San Diego Union Tribune

Parent was originally told she would be charged for staff time to make copies

Written by: Ashly McGlone

A parent-activist who was going to be charged for staff time so she could see San Diego Unified Superintendent Bill Kowba’s calendar won’t incur that cost, after her story was highlighted in The Watchdog.

The district ended up charging Sally Smith $2.70 — 10 cents a page — for the cost of duplicating the public record.

Smith had been told she would be charged 10 cents per page "plus clerical time for the actual duplication, at a rate of $20 to $28 per hour."

Typically, public agencies charge for the cost of making a copy, not for staff time to do so.

After The Watchdog highlighted the effort to charge Smith for staff time, the district backed away.

The district’s policy of charging for staff time in such cases previously caught the attention of the Sacramento-based open-government group Californians Aware. That fee contributed to the district earning an F in the group’s audit of public agency compliance with public records law, released earlier this year.

District officials said they will now review their copying rates.

"We are entitled to recover the costs to produce a record that is maintained in electronic form," said Andra Donovan, the district’s deputy general counsel. She added, "In light of the concerns raised by the U-T, we will review our copying charges to make sure they are an accurate reflection of the direct costs of duplication."

Additionally, The Watchdog compared the calendar provided to Smith with a calendar provided to Emily Alpert of the Voice of San Diego and found that Smith’s calendar was incomplete and the redacting was inconsistent.

Alpert’s version included auditor visits, as well as cabinet, area superintendent and principal meetings, charity meetings, chamber of commerce and city events, select employee travel, sexual harassment training for a staff member, and media interviews — all of which were left off Smith’s calendar.

Meanwhile, Smith’s calendar included a carpool meet-up with the dean of San Diego State University’s College of Education and other employee travel redacted from the calendar provided to Alpert.

By law, agencies may withhold documents related to pending litigation and personnel, medical or similar files if disclosure would constitute an unwarranted invasion of personal privacy.

Told of the discrepancy, Donovan said the district will reproduce a more complete calendar and give it to Smith free of charge.

"We will also review our redaction policies to make sure we are consistently and appropriately redacting information," Donovan said.

Smith, who wished to compare Kowba’s appointments with those of former Superintendent Terry Grier, said she was concerned about the district’s handling of her request.

"Californians Aware graded school districts across the state and San Diego Unified got an F, and I can see why. It is intimidating to go in and ask for public records and have to encounter so much trouble getting them," Smith said. "San Diego Unified has to be more transparent and has to be open to requests and let the public see what it is doing."

In 2009, The San Diego Union-Tribune requested copies of the calendars for 55 local government leaders, including Grier. The requests were all fulfilled with no fees.

District officials said budget cuts no longer allow for such freebies.

• District form letter referencing charges for staff time for copying documents
• Superintendent calendar released to Sally Smith
• Superintendent calendar released to Voice of San Diego

MP3.com founder sues Del Mar school district

Source: San Diego Union Tribune

DEL MAR — Michael Robertson, the Internet entrepreneur who founded MP3.com in 1997, is suing the Del Mar Union School District for denying some of his recent requests under the California Public Records Act for internal emails.

Robertson, a Del Mar resident, filed the lawsuit in San Diego Superior Court on Aug. 8. Robertson’s two sons attended schools in the elementary school district, now with one in high school and the other finishing in June.

The lawsuit alleges that Del Mar Union wrongfully denied Robertson’s requests for all emails to and from Trustee Comischelle Rodriguez. According to court documents, the district has only released emails sent between Rodriguez and Superintendent James Peabody.

Robertson said he has made several request under the state’s open records law, which says any writing pertaining to the public’s business is public record, unless it is exempt, such as personnel evaluations.

Peabody, the district’s superintendent, said he could not comment on a pending lawsuit.

Robertson said he originally decided to pursue the emails to learn how the district spends taxpayer money. He said he became upset earlier this year when parents began receiving automated-phone calls with Peabody’s voice about a grass-roots campaign on the state budget crisis. Robertson said the call came at 7 p.m. on a Sunday to the emergency contact number he gave the district. He complained to the administration, and found out Peabody read a script written by the teacher’s union.

Robertson, a UCSD graduate, gained international fame when he founded MP3.com, a platform for music sharing that grew to more than 750,000 streaming and downloadable songs from 250,000 artists. The company went public in 1999, raising $344 million.

The Recording Industry of America successfully sued MP3.com for copyright infringement. Robertson paid $150 million to five recording labels as part of a settlement. Vivendi then bought MP3.com for $372 million in 2001.

District seeks fee for viewing of calendar

Source: San Diego Union Tribune

Written by: Ashly McGlone

The San Diego Unified School District is seeking to impose a fee on a parent requesting to review the superintendent’s calendar.

Public records law says such documents can be inspected during business hours and a state attorney general’s report says no fee should be charged.

Sally Smith, a parent and vocal critic of the district, is seeking to review Superintendent Bill Kowba’s calendar from January to July 2011 in order to determine whether she wants copies of any pages.

The California Public Records Act states that, "Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law."

Agencies are allowed to charge for copies of public records. But the open records law "contains no provision for a charge to be imposed in connection with the mere inspection of records," according to a report issued by the California Attorney General’s Office in 2004.

In the case of Kowba’s calendar, school district attorneys said that the calendar is only kept electronically and, in that form, portions can’t be redacted. They say printed copies must be made in order to strike out information exempted from the open records law in order for Smith to review the information.

Smith was told she would have to pay for printing costs "plus clerical time for the actual duplication, at a rate of $20 to $28 per hour," according to an Aug. 1 email from Adel Epley, assistant to the district’s deputy general counsel.

Smith, who contacted The Watchdog about the issue, wrote in response, "I just want to look at it. I can’t be charged for reviewing records."

The school district’s attorneys stand by the anticipated charge, though it was unclear what the total cost would be as of Friday.

Peter Scheer, executive director of the First Amendment Coalition, said, "The better argument under the law is they can’t charge for that."

In 2009, The San Diego Union-Tribune requested copies of the calendars for various local government leaders, including Terry Grier, then-superintendent of San Diego Unified. That request was fulfilled with no redaction and no fee was charged.

---

More information:

• Former Superintendent Terry Grier's calendar, released at no charge in 2009
• Compilation of calendars requested by the U-T in 2009, released without redactions and free of charge

The cost of doing business: Del Mar’s defense against former superintendent Sharon McClain

By Marsha Sutton
Senior education reporter

Source: Del Mar Times

Although I had no intention of ever writing another column about the Sharon McClain vs. Del Mar Union School District lawsuit, my curiosity about how much money the district was spending to defend itself against her charges got the better of me.

After revealing documents were made public in March, some parents encouraged the district to settle with McClain to save the district money. But others insisted that the district has a solid case and the suit should not be settled because any settlement would not just cost money but might also imply some measure of guilt.

We’ve all heard about lawsuits settled behind closed doors, with defendants paying out an undisclosed amount of money just to be rid of the case. Although the tendency is to regard many of these settlements as a shakedown of corporations or agencies with deep pockets, there is often some lingering doubt that perhaps those deep pockets conceded some responsibility after all.

As we reported in a March 10 story, DMUSD superintendent Jim Peabody said the district spent $12,762 on legal fees on the McClain case in 2010: $9,036 through March 31 when she was released, and $3,726 from April 1 through Oct. 1.

When the suit was filed in early October, the district’s litigation insurance took over and all legal fees were covered, less a $1,000 deductible and the district’s annual premium of $21,808, he said.

Because of insurance, the district isn’t out much money directly. But it’s costing money for someone. And it’s not unusual for insurance companies to settle a case based not its merits but simply on how much they are willing to spend to defend the case. At some point, they tend to want to cut their losses.

So the question is: How much is the DMUSD’s insurance carrier, the San Diego County Schools Risk Management Joint Powers Authority, paying to defend this suit? And would the JPA, which operates a consortium through the San Diego County Office of Education (SDCOE), be inclined to settle — and thus unintentionally transmit the impression of guilt — if the cost of defending is too high?

No matter how solid its case, Peabody affirmed that there is an incentive to settle when he told me that risk management has to weigh its cases carefully. "The people in the JPA are rooting for you to do something positive because [otherwise it can] deplete the entire fund," he said. "Just like in health insurance, if there’s a lot of action within the group, the premium goes up."

I asked Diane Crosier, SDCOE’s executive director of the San Diego and Imperial County schools JPA, how much had been spent on the case so far. She replied in an email that she would only release that information through a formal Public Records Act request.

I had other questions as well, which mostly had to do with the wording of the insurance policy, but she refused to answer any of them, referring me to the school district’s legal counsel.

Having someone deny a journalist a simple request for public information that’s readily available is like waving a red flag at a bull. Following her icy instructions, I reluctantly submitted my formal PRA request for expenses to date on the case, along with a few other questions:

1. Does the JPA’s litigation insurance cover the costs of damages should the case proceed to trial and the district lose? (Why else would anyone have insurance except to cover potential losses, but the question needed to be asked.)

2. When did the JPA take over the case?

3. What does your group consider to determine whether a settlement is advisable?

4. Can the district recover attorneys’ fees spent before the JPA took over, if the district wins the case?

5. What is the specific language of the district’s coverage through the JPA?

6. What is the current status of the case?

Contempt for transparency

Knowing that some of these questions were beyond the scope of what SDCOE’s JPA would reveal, I also knew that others were within the realm of possibility, especially those asking for neutral specifics like dates, dollar amounts and policy wording.

Yet, in a letter dated April 1 from Pam Gilles, senior director of internal business services for SDCOE, I was told that a one-page document listing expenses to date was available but that "there are no other records available that are responsive to your request as this case is in litigation."

SDCOE would not even reveal the date the JPA took over the case or the specific language in the policy. As for the one-page document showing expenses, I either needed to appear in person to review it or pay a fee to have it mailed.

This is their right to ask for payment for documents requested through a PRA. I was told the cost for duplication was $1.00 per page, $.10 per additional page, plus sales tax and postage. For the one-page document, the total came to a whopping $1.53 ($1.00 for the copied page, $.09 tax and $.44 postage).

I repeated my request for answers to the objective facts – like the policy language and the dates – and then suggested that, since the document I was seeking was only one page and the cost so minimal, could they not fax it or email it? After all, public agencies do have discretion in these matters. Both requests were denied by Gilles.

SDCOE public information officer Jim Esterbrooks offered sympathy but said SDCOE policy dictates that all documents requested through a PRA request are charged a set fee. I responded that I didn’t start with a formal PRA request. Rather, it was Crosier who insisted on it.

All she had to do, since she had the information readily available, was just tell me the amount — or send it by fax which would require less handling time than processing my puny check or counting out my pennies at the front desk (I was inclined at first to go there and give them all my loose change, a photographer in tow).

If we’re talking about efficiency and conserving public resources, then copying the document, stuffing it in an envelope, addressing it and mailing it require more time than faxing it. Simply telling me over the phone or by email is even more efficient.

But this is a government agency, and procedures must be followed, no matter how senseless or hostile toward the public.

Since I’ve yet to bend to their rules and drag myself down there to pay for my document, I am unable to report on the costs to date for the McClain litigation. But I can say that SDCOE’s uncooperative attitude toward the people’s right to access public information in a reasonable manner is a shameful example of the tendency of public agencies to be fortresses of information that regard with contempt the imperative for more open government and transparency.

Costs running high

Taking Crosier’s advice, I contacted the district’s legal counsel on the case, Daniel Shinoff of Stutz Artiano Shinoff & Holtz, and asked him to shed some light on the questions SDCOE refused to answer.

He said the language in the coverage states that JPA litigation insurance covers the costs should the district lose. And if the district wins, attorneys’ fees expended before the JPA took over the case cannot be recovered.

"Each side bears their own attorneys’ fees, absent a contract or a statute," Shinoff said, in an interview in April. "This contract didn’t have an attorneys’ fees provision in it."

If there is a settlement, Shinoff said the terms will become public. "When it involves a public institution and public money, you cannot have a secret settlement agreement," he said. "People may not want to talk about it, but the terms of the settlement agreement become a public record."

And the odds of settlement? He said the JPA won’t apply pressure either way but does have "professional responsibilities and ethical obligations to tell their perspective." He said the JPA wants to have a voice in the resolution of cases, but the final decision "will be in the hands of the school board."

Shinoff thinks the DMUSD has a winning case and that it will go to trial without a settlement. "I don’t believe they’re going to walk away from it, but ultimately it’s going to be up to the board of trustees of the school district to decide that," he said.

On the other hand, Shinoff echoed Peabody’s concern that there might be incentive to settle to avoid rising premiums, should the case become too costly or its odds of prevailing diminish. "That is something that the board may want to take a look at, you bet," he said.

Regarding my single-page document with expenses to date, Shinoff did not know the answer but, reflecting bias in favor of his client’s position, suggested that costs are running high.

"I do know that Dr. McClain’s lawyer is trying to make it as expensive as possible," he said. "He sends out interrogatories and then he sends meet-and-confirm letters because he doesn’t like our responses. So that becomes expensive because you have to respond to all that."

If I don’t bow to the almighty bureaucracy’s inflexible and unreasonable demands, the costs may remain hidden. And the longer I wait, the greater the chances that my one-page document will stretch to two, thus increasing my copying cost by ten cents. I just don’t know if my pocketbook can handle it.

Marsha Sutton can be reached at: SuttComm@san.rr.com.

The education funding battle: The right fight for the wrong reasons

Source: Del Mar Times

Marsha Sutton
By Marsha Sutton

As teachers’ unions across the state geared up for the "State of Emergency Week of Action" May 9 to 13 to protest state cuts in education funding, local parent Michael Robertson was fighting a different sort of battle.

Robertson charged that the Del Mar Union School District misused public resources – including telecommunications equipment, computer servers, school property, supplies, copiers and school databases – to improperly advocate for political positions.

"DMUSD is using school resources in an attempt to influence politics which is wrong," he said in an email, citing a robo-call from the district’s superintendent "pleading that I join a protest to ‘protect our kids.’"

In addition to the automated phone call, he offered as further evidence an email addressed to "Del Mar Hills families" from the Del Mar Hills Elementary School PTA president which read in part: "During the week of May 9 through May 13, the teachers, administrators, school board and parents of the DMUSD will jointly participate in activities to focus attention on California’s ‘State of Emergency.’ The purpose is to raise awareness of the serious cuts facing education and to pressure California legislators to return funding priority to our schools."

The email asked parents to meet in the teachers’ lounge on May 9 and make calls during lunchtime to legislators, "urging them to support tax extensions, preventing deeper cuts to California public schools." Lunch, she wrote, will be served.

Fuming, Robertson claims the DMUSD is violating the law, citing California Education Code section 7054 which prohibits school districts from engaging in political advocacy using public resources.

Section 7054(a) reads that no school district funds, services, supplies or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate.

However, 7054 goes on to say that nothing shall prohibit the use of public resources as long as the activities are authorized by the Constitution or California law and "the information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure."

Section 7054(c) states that any violation of this section shall be a misdemeanor or felony punishable by imprisonment or a fine, or both.

Whether or not Del Mar (or any other California school district for that matter, as many of them engaged in similar actions) violated 7054 of the Calif. Education Code is debatable.

Technically, the district’s efforts did not urge the support or defeat of any ballot measure or candidate, as prohibited in 7054, but it may have advocated for a particular political position. Here is the full text of the automated call:

"Hi, this is Superintendent Jim Peabody calling with an important message about budget issues facing the Del Mar Union School District and ALL California schools. School districts throughout California are suffering while we continue to wait for a state budget. Our schools and communities cannot tolerate any more budget cuts nor can we afford to continuing [sic] waiting for a state budget.

"During the week of May 9-13, all educators, parents and students in the state are fighting back with a grassroots campaign calling on lawmakers to resolve the state budget crisis now. Look for our Del Mar teachers, administrators, parents and board members at your children’s school – they will have important messages about what YOU can do to help."

Peabody responded to Robertson’s complaint in a May 9 email, saying the district’s intent was "to provide fair and impartial information to parents about the budget, not to take political action." But he also agreed not to send any more messages asking for action, writing, "I can see that asking the legislature to pass a budget on time may be considered a political action."

"I saw zero fair or impartial information going to parents," wrote Robertson to Peabody, about the week-long campaign. "What I saw was very biased screams of ‘No more cuts’ and ‘Protect our kids.’ How is that distributing facts? The intent was to push for higher taxes."

Threatening litigation, Robertson wrote, "It is a serious breach of the public trust when government officials spend public funds to create an advantage for one side of a political campaign." He demanded that the district "immediately cease using its funds, school property, personnel, supplies or equipment to influence the political process."

In addition, Robertson asked the district, through a Public Records Act request, to provide all communications since March 1 between the California Teachers Association, which sponsored the week-long "State of Emergency" effort, and the district and all its employees. And he promises to release the information publicly on his Web site (www.michaelrobertson.com).

When asked for reaction to Robertson’s charges of illegal activity, Peabody wrote in an email, "After some thought, I have no response to Mr. Robertson’s comments" – although he did add the following: "I don’t believe the district did anything wrong."

The union agenda

The initiatives at individual schools and school districts during the week of May 9-13 clearly pushed for parents to support the CTA union agenda and lobby lawmakers for more funding for education. But does the CTA’s agenda always coincide with what’s best for kids?

As Robertson said, "It’s not about protecting our kids but about protecting employee salaries and benefits."

He claims that DMUSD employee salaries make up about 85 percent of the entire budget for this year and that the district "now spends more than $10,000 per student – a number that has grown every year for the last six years."

Not that long ago, school employee salaries and benefits in the county were about 80 percent of a district’s budget, but that percentage has consistently grown. At the San Diego Unified School District, the largest in the county, employee wages and benefits are said to be a staggering 93 percent of the district’s operating budget.

Clearly, funding to schools has risen over the years, but the money spent on increased compensation packages has not correlated to improved student achievement.

CTA flyers handed out at schools propagate the false impression that the union represents student interests, and parents are being hoodwinked by deceptive rhetoric. We need more money for education, yes, but we don’t need more money for education so teachers can receive higher salaries and benefits.

Robertson said the CTA "is a union whose sole purpose is to get as much money for their members for as little work as possible. I don’t fault them for their efforts, that’s what they are paid to do; but the school district should not be their mouthpiece." The CTA he says, does not represent kids or parents, "regardless of what their literature claims."

The union fights for the rights of its members, and students are not members. Neither are parents.

This doesn’t mean the state should not allocate more funding for education. It should, and legislators need to make public K-12 education a priority. But the money must be funneled directly to programs that benefit students, because ever-higher compensation has not proven to address the chronic problems in our schools.

Attacking seniority rights

The CTA recently sent a notice to its union members, including local teachers, alerting them to three proposed bills that "attack teachers directly," with tips on how to present the bills to their communities to fight passage.

One bill, SB-355, takes on seniority rights by allowing districts the needed flexibility to consider other factors besides years of service when deciding who shall be terminated, including performance evaluations.

But the CTA says SB-355 "would allow administrators to practice favoritism under the guise of ‘keeping the best.’ It would gut one of the most important protections that helps ensure academic freedom and allows students to learn from experienced teachers."

Then there’s SB-871 which would prohibit salary increases for employees in a school district that reduces its instructional minutes or shortens its school year, which the state has shamefully now allowed districts to do to save money.

The CTA describes this bill as "a full-on attack on collective bargaining and local control." Even as teachers work fewer days, they still deserve increased teacher compensation? But the union does not object to fewer school days, knowing full well that the amount of time students spend in school is directly related to improved learning.

"The real problem in our schools," the CTA claims, "is not seniority protections or teacher pay. It’s the chronic underfunding that has provoked a fiscal crisis and is threatening our students’ education."

"It is vital that the cuts are stopped ...," the CTA notice states. "Reducing teacher protections in the guise of ‘cutting costs’ will make things even worse."

The CTA says these bills "would foster discrimination and favoritism" and "would move California in the opposite direction of proven reforms that are helping our students and schools." Proven reforms that are working? Really?

But, as one teacher recently wrote in an email to Robertson, "I think if I do my job as I would have to at any other business, I don’t need this protection or seniority to save me. My work as a teacher should speak for itself." Amen to that.

Whether Del Mar has overstepped its bounds in its enthusiastic embrace of the CTA agenda may be under scrutiny, but the important question is why so many parents continue to support the CTA agenda.

Just because the teachers’ union wants something doesn’t mean parents should. Fight for more money definitely, but let’s first make sure that money gets where it needs to go.

Marsha Sutton can be reached at: SuttComm@san.rr.com.

Opinion: Del Mar Union School District should stop using taxpayer-funded resources for politics

Source: Letter to the Del Mar Times

Del Mar Union School District is provided funds by taxpayers to teach our children, but they are breaking the law by expending those resources in an attempt to influence the political process. Last week a database of emergency telephone numbers provided by parents were used with the school district’s automated calling system to deliver a political message recorded by district superintendent James Peabody. This is not an isolated incident. School facilities, equipment, personnel and resources are being illegally used in a lobbying effort.

Examples include:

• School property being used to hold organizational meetings
• Photocopying and resources being used to produce biased literature
• Computer servers used for electronic communications to organize lobbying efforts
• Teacher time during the contracted work hours of 7:45-2:45 have been utilized
• School databases have been used to generate mailing and calling lists

Under California law, including Education Code 7054, school districts are strictly prohibited from engaging in political advocacy using public resources. No use may be made of school property, funds, personnel, supplies or equipment to influence politics. Violation of this provision can either be a misdemeanor or felony and is punishable by fines and/or imprisonment. 7054(c).

Of course citizens, including teachers and administrators, are free to communicate their desires to the government, but they must use their own resources. It is also permissible for people to distribute facts, but that is not happening.

In this case, the union is using school district resources to embark on a propaganda campaign where kids are used as human shields behind which they yell No More Cuts! and Protect Our Kids. The facts are DMUSD spending has increased 46 percent over the last eight years and in only one of those years did the budget decline. DMUSD now spends more than $10,000 per student — a number that has GROWN every year for the last six years. Eighty-seven percent of school district monies are spent on teachers’ and administrators’ salaries and benefits. Any calls to protect kids are more accurately efforts to protect salaries.

It is a serious breach of the public trust when government officials spend public funds to create an advantage for one side of a political campaign. It’s even more egregious when they intentionally mislead caring parents with claims of false cuts. I call on the DMUSD school board to immediately cease using taxpayer-funded resources for political purposes.

- Michael Robertson

Teacher's Union Deception - Propaganda to Get More Money

Source: Michael Robertson's Blog

At 7:30 pm my home phone rang. It was one of those irritating robot calling machines that plays a recorded message. This one was from my kids government school and the Superintendent was telling me to ask California politicians to not make cuts in K-12 schools. I was shocked that the school was using the contact number I had provided to locate me in the event of an emergency with my child to push a political position. At the same time I see email from the PTA who is working with teachers begging parents to engage in an "Emergency Campaign" to "Save California" by passing out flyers the school would produce and joining protests. It became clear that there was an organized political campaign underway and school resources were being used.

Citizens give money to schools to educate children NOT to lobby politicians. Under California law, including Education Code 7054, school districts are strictly prohibited from engaging in political advocacy using public resources. School districts cannot use school computers, telecommunication services, offices and personnel for political purposes. Yet that is what was happening.

I decided to get involved. Under the rights afforded by the California constitution, I submitted a CPRA (California Public Records Act) request for documents related to the robo-calls they made and contacts with the CTA.

They quickly sent me a couple of documents. I learned that more than 5,000 parents had been bombarded with the political message. I also got the script of the robo-call demanding no more budget cuts. I sent a follow up letter to the board and Superintendant showing that our school district has seen a major INCREASE in our budget.

Additionally, I sent another letter demanding they immediately cease political lobbying activities. James Peabody, the Superintendent, responded that they "will not send out any more messages from the district that asks for action." He also said his intent was to provide "fair and impartial information to parents about the budget."

At my kids school well meaning parents were passing out a deceptive flyer authored by the CTA (California Teachers Association which is the teacher's union). The flyer screamed that $20 billion has been cut from schools and 30,000 teachers have been lost. It also called for politicians to extend expiring tax hikes so schools would get more money. I researched the facts and the data used in the flyer is completely deceptive designed to mislead people into thinking that schools have been ravaged by cuts.

Everything I have seen or heard from the district has been wholly deceptive designed to perpetuate the myth that school budgets have been ravaged and teachers sent to unemployment lines. I followed up with Peabody and the school board providing FACTS that showed the Del Mar school budget has grown 46% during the time my children have been in attendance and per student spending has grown EVERY year from $8,000 to $10,000. (I got most of the data from the district's own web site.)

The number of credentialed teachers in CA has NOT changed over the last 3 years. It's true about 15,000 teachers a year retire because teachers have a luxurious retirement program which pays 5-10 times what citizens get with Social Security and Medicare. But new teachers have been hired to replace them. There have been about 300,000 credentialed teachers working for government K-12 schools over the last 3 years.

K-12 school budgets have also NOT been cut $20 Billion over the last 3 years. When you include retirement money promised to teachers and administrators, the money spent on schools over that time period has gone up. There have been cuts of 5.6% or about $4 billion in the operating budget over this time period, but total money citizens are paying to educate their children has gone up not down by $20 billion.

I scanned in the teacher's union flyer and made corrections to their document with data from publicly available reputable web sites. You can see the flyer here:

I don't fault the teacher's union for trying to get more money for teachers - that's what they're paid to do however they should not resort to deception to achieve this goal. It's important to note that the teacher's union doesn't represent the interest of the children in spite of their "Protect our children" campaigns. They are pushing for even shorter school days when every research report has shown that longer school days benefit kids.

The School Board is supposed to protect the interests of parents and kids but too often they do not because they are heavily influenced, if not outright bought, by the political campaign donations of the CTA which get them elected. I informed our local school board of the illegal actions of school district employees using school resources to lobby politicians. I received a non-sensical response from the school board President which looks like a form letter. Another board member sent a more engaged response asked for more background data on my numbers which I provided her. But I was left wondering if the board asked the CTA to back up their outrageous numbers? Why are they not policing the situation? Don't they understand their job is to look out for the interest of parents and kids and not get hoodwinked by the teacher's union?

I have yet to get an official response of documents about the district's interactions with the teacher's union but I have seen some documents provided by some teachers who are disgusted with how their own Union is perverting the situation and putting teacher's interests ahead of kids. I will report more once I get documents from the CPRA request I submitted.

--MR
michael@michaelrobertson.com

P.S. Chris Reed, a radio talk show host on KOGO talks about this situation. Download the audio file and fast forward to 11:37 to hear what he had to say.

Chris Reed on KOGO speaking on the issues raised in this article.

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• Transcript of Peabody's phone message
• Public Records Request for Automated Calls May 2-6 2010
• Log for Peabody's All-Call Message showing the number of recipients
• Public Records Request for communications between DMUSD employees and CTA officers March 1-May 5, 2011>
• Demand to District to Halt Political Activities
• Peabody's Response to the Demand Letter
• Michael Robertson's response to Peabody showing that school budgets have increased
• Comischell Rodriguez's response to Michael Robertson

Del Mar: McClain lawsuit against school district moves forward

By Marsha Sutton
Staff Writer

Source: Del Mar Times

The case of former Del Mar Union School District superintendent Sharon McClain, who was hired in September 2008 and released March 31, 2010, vs. the DMUSD is moving along, with a hearing heard May 6 and one coming up May 20.

The hearing on May 20, filed by McClain’s attorney, Los Angeles-based Dale Gronemeier, is a summary adjudication to ask the court to rule on the issue of termination notice.

"It seeks to determine that Dr. McClain was not given proper notice of the termination meeting on March 31, 2010," Gronemeier said. "The basic fact is she was given notice of that meeting on March 29. The contract in our view requires that she be notified at least 30 days in advance."

Calling it a "no downside motion" other than the $750 filing fee, Gronemeier said, "If you lose, it doesn’t mean anything except that there may be factual disputes and you have to go to trial on it."

If the judge rules in McClain’s favor, he said it means that "it is determined that they didn’t give the proper notice."

But Ryan Church, an attorney with the law firm of Stutz Artiano Shinoff & Holtz, disagreed.

"In her motion, she’s saying that the district had a contractual obligation to give notice, and they did not give notice," said Church, who is working with the school district’s legal counsel Daniel Shinoff on the case. "The court cannot rule on whether or not the district did or did not give the proper notice because that’s a jury decision."

The school district’s attorneys are opposing the motion and are making a distinction on what the judge can and cannot decide. Church said the court can only decide whether or not that obligation exists, and cannot determine whether or not the district breached any contractual obligation.

"Our position is that the plaintiff is asking the court to do something they cannot do. That’s an issue for the jury to decide," Church said. "Our position is the court can only determine whether or not a duty exists."

A hearing held May 6 ruled on a motion for judgment filed by the district’s attorneys that attacked four different causes of action. "The judge agreed with us on one of them, and the other three will remain intact," Church said.

Both attorneys said many of these motions are minor. "Pleading disputes aren’t very interesting," Gronemeier said.

A motion with larger implications will be heard by the court July 8, which was filed after Gronemeier subpoenaed former DMUSD school board member Steven McDowell for a deposition.

"We filed a motion to quash that subpoena," said Church, explaining that the deliberative process privilege prevents public board members from being deposed and bars judicial inquiry into the motives of public officials.

"You’re not supposed to be able to take board members’ depositions," he said. "That’s been a law for quite some time. The voters can question their decisions, but the court shouldn’t be able to go in there and question their decisions."

"They filed a motion to quash the subpoena on the grounds that you cannot require the testimony of any board member," Gronemeier said. "But the only people who know anything about this case on the district’s side are board members."

Gronemeier said the district’s attorneys don’t want McDowell to testify, and he expects they’ll take that same position with the other board members.

"What they’re saying is [that] we cannot take any discovery because the only people that know anything about all the disputed events in the lawsuit are board members," Gronemeier said. "They have blocked, temporarily at least, our ability to get any information essentially, and we’re heading to court resolution on that."

"When you represent public entities, you will occasionally run into a situation where someone will try to depose a board member, and this is a common motion you file to prevent that from happening," Church said.

When asked why McDowell was subpoenaed to testify, of the five board members, Gronemeier said, "It was a tactical decision that he was the best place to start."

Gronemeier said he also had four motions to compel discovery that haven’t been filed yet, for July 15.

More motions and hearings are expected by both sides, in preparation for the full trial which has been set for Nov. 4.