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.