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