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 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."

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.

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.

Del Mar school district’s delays frustrate businessman

Source: Del Mar Times

By Marsha Sutton
Contributor

An online open government project co-founded by Del Mar Internet entrepreneur Michael Robertson hit a speed bump along the information superhighway, when the Del Mar Union School District delayed releasing data requested by Robertson through a formal California Public Records Act request.

Robertson’s NakedGovernment.org site, to be launched later this month, will allow users free access to a wide range of governmental documents, initially beginning with the names, titles and salaries of school district employees from school districts throughout the country.

Robertson and his partner John Parres submitted PRA requests asking 50 school districts to provide this information. Only Del Mar refused to comply fully based on privacy rights, claiming the district was legally obligated to protect the privacy of individual employees earning less than $100,000 annually.

"I find this outrageous and appalling behavior," Robertson said. "There is no right to privacy which allows DMUSD to not respond to our request with the names, titles and salaries of all employees."

Del Mar finally complied with the request this week when threatened with legal action, after three weeks of resistance.

Scott Mann, DMUSD’s assistant superintendent for business services, initially provided only the names, titles and salaries of all employees earning more than $100,000 annually, along with the certificated and classified salary schedules.

Parres objected and wrote to Mann, saying, "The documents you provided are general in nature. Other school districts I have contacted provided specific listings as requested with no hesitation." He provided the response from the Boulder Valley School District in Colorado as an example.

Mann wrote back, saying, "First of all, let’s be clear. I am not ‘rejecting’ your request as I have fully complied with it. Case law from the courts has held that total compensation under $100,000 for employees shall not be released because of privacy rights of the individual employee. I have complied with your request under the PRA."

Mann said in a follow-up email, "The Del Mar USD considers your request fulfilled."

Saying the Del Mar Union School District does not "have the right to decide what requests to honor and to what extent," Robertson wrote to DMUSD superintendent Jim Peabody, explaining the impasse and promising to "escalate the situation if DMUSD does not fully respond to the multiple Public Records Act requests which have been submitted to Mr. Mann."

After investigating the matter, Peabody wrote back to Robertson, saying, "I have asked Scott Mann to produce the title and salary of all employees for you."

This time the DMUSD sent the titles and salaries of each employee, but with the names redacted. Robertson criticized Del Mar’s reluctance to provide the complete data. He said the Los Angeles Unified School District and the San Diego Unified School District were both asked for the same information, and both cooperated fully with the request, as did most of the 50 school districts that were also asked.

"Our request to you was straightforward and unquestionably allowed by law," wrote Robertson to Peabody. "I am quite puzzled at the delays and nonresponsiveness by your DMUSD staff to this request."

Robertson told Peabody that he will not "stand by and let DMUSD ignore the law" and will "file a lawsuit to force DMUSD to comply with the laws of our state."

The initial request was made to Del Mar on Oct. 8. On Oct. 28, Robertson received an email letter from attorney Susan Gilmor, of the law firm of Stutz Artiano Shinoff & Holtz, writing on behalf of the DMUSD. Gilmor defended the district’s decision to withhold the information.

"We have reviewed the recent cases regarding public disclosure of public employee salaries, which are specific to employees earning $100,000 a year or more," Gilmor wrote. "You have asserted your position that you are entitled to all employee names and salaries. Please tell us what case you are relying upon that specifies that employees earning less than $100,000 a year are not exempt from public disclosure by name."

She said the district’s position is "not to engage in a fight with you. We have a constitutional duty [to] ensure that we do not invade privacy rights. While we understand that the public has a strong interest in monitoring public expenditures, it [is] our duty to follow the law. It is our position that the courts have not ruled that the names and salaries of public employees earning less than $100,000 a year would be subject to disclosure."

Robertson challenged Gilmor’s interpretation of the $100,000 threshold. "There’s no exclusion for [an] employee’s salary under $100,000," he wrote to her. "Citizens do not have a duty to justify why a request is warranted. Rather DMUSD is obligated to follow the law and provide public records. The party seeking to withhold public records bears the burden of demonstrating that an exception applies."

"There is nothing in the law or ruling to suggest government employees with $99,999.99 salaries are entitled to a different or greater right of privacy than someone making $100,000 per year or more," he added.

Robertson again threatened legal action if the request was not honored. "If DMUSD[’s] intention is to use the same privacy excuse to shirk their legally required duties which the courts at the highest level in our state have rejected then they will lose that case and squander taxpayers money," he wrote. "DMUSD does not get to decide what is good for people to know."

Robertson said schools "commonly complain about not having enough money, but when a citizen places a request to see where the money is going they are stonewalled."

Terry Francke, First Amendment rights attorney and founder of Californians Aware, said Robertson’s legal case was strong.

"The California Supreme Court decision concluding that public employees’ salaries are subject to disclosure under the California Public Records Act stemmed from a request for the salaries of Oakland city employees earning $100,000 or more," he said in an email. "But the court neither expressly nor impliedly limited its public disclosure ruling to salaries in that amount, and almost no public agencies are interpreting it that way.

"If sued, I’m confident this district would lose, and have to pay the requester’s attorney fees."

CalAware is a nonprofit organization specializing in helping the public understand California’s open-meeting Ralph M. Brown Act, the Public Records Act, First Amendment rights and open-access government issues.

Robertson had his attorney contact Gilmor directly and asked him to explain to her "that I understand the law and I’m intent on making this happen and there’s just better things for the school district to worry about."

After speaking with Robertson’s attorney, Gilmor wrote the following email to Robertson: "Thank you for your response and patience. As I mentioned, my concern was to ensure that a release of names would not subject the district to claims of violating personal privacy rights. I appreciate your input and the time you allowed so that I could make certain that the statutes and laws were interpreted correctly."

Gilmor said the district has been instructed to provide the requested information, all of which was sent to Robertson by Mann on Nov. 1 with the following note: "By direction of the Governing Board, the attached PDF file was prepared for your use under the CPRA and contains all information you previously requested." Peabody later clarified that only board president Steven McDowell rather than the full Board of Education met to discuss this issue.

Peabody said he referred the matter to the district’s attorneys, who initially told him that the names of employees earning less than $100,000 per year should not be disclosed.

In agreeing to release the information, he said, "If it’s going to get into a legal squabble, it’s just going to eat up some district resources."

Peabody said he was concerned about the reaction of teachers and was informing union leadership that the names of every employee, their titles and salaries was about to be made public. "I worry that they’ll be upset, but I think they will understand," he said.

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More information:

• John Parre's Public Record Request and DMUSD's Response

Del Mar man helps to launch The Naked Government project

Source: Del Mar Times

By Marsha Sutton
Contributor

NakedGovernment.org is a new project co-founded by Del Mar Internet entrepreneur Michael Robertson that is intended to make government more transparent. In addition to actual documents from governmental agencies, the site will also contain names of individuals and organizations that have made Public Records Act requests for specific documents.

"Every day, there are thousands of public document requests … across the United States," he said. "My belief is all those should be public. For example, who is asking what of the water companies? In a lot of respects, I think that is more interesting than the actual documents. That’s the kind of information that will help citizens better manage, or police if you will, the government that runs their lives."

The concept stems from Robertson’s belief that, once an agency or news organization makes a PRA request and gains access to information, that information should be made available to the public in its raw, unfiltered form.

The site will be Wiki-driven, he said, much like Wikipedia, where users he called "information envoys" will find those document requests and contribute documents and information directly to the site.

"I’m creating a Wiki-powered service where all public records will be searchable by who has made the request [and] what they requested, and you can view the actual documents," he said.

Robertson said he and his partner John Parres didn’t want to launch the site empty, so they requested payroll information of 50 school districts from across the country chosen at random, although the Los Angeles Unified School District and the San Diego Unified School District – as well as Robertson’s hometown Del Mar Union School District – were specifically selected.

"We’re collecting some documents now so there will be some critical mass in the system, so hopefully others will get the vision and help with the task," he said.

Robertson said the DMUSD was not the only district to refuse their request, but was the only district to refuse based on privacy rights.

"I understand where they’re coming from," he said. "They don’t want to get sued by the teachers’ union. That’s the interest they’re trying to balance."

But he believes the law is on his side and governmental organizations "need to understand that it’s the citizens’ money here." Some do, he said, and some don’t.

"We have had a couple people say no," he said. "We’ve had a couple of school districts say, astonishingly, we don’t have that information. It’s preposterous. … Others have said you’ll have to pay to get that information."

Robertson said reasonable costs associated with Public Records requests are fair but that some districts are suggesting that assembling the requested data will require many hours of programming time, adding up to expenses that Robertson called "outrageous."

"So we are putting pressure on them to comply," he said. "When we get pushed back, we’re trying to be polite but firm and encourage the organization to do the right thing."

He said the reason NakedGovernment.org is needed is because not everyone is forthcoming. "There’s some people involved in this process that think the government doesn’t work for its citizens," he said.

Del Mar’s initial noncompliance particularly frustrated Robertson.

"I’m a taxpayer in Del Mar; I’ve got two kids in the Del Mar schools," he said. "That’s why it was so amazing. …The last thing the school district should be spending money on is hiding public information from concerned citizens."

Most districts have been fully cooperative and compliant, he said, including LA Unified which was one of a handful of governmental bodies that was given a more expansive list of information requested for the site.

"We should have hundreds of document requests from LA Unified in the system," he said.

Initially, the site will launch with extensive information from half a dozen institutions including LA Unified, the Port Authority in San Diego and the Dept. of Water in Los Angeles.

"So for a handful of organizations you’re actually going to see what kind of requests they get [and] who is making that request," Robertson said. "And it’s amazingly revealing to see. You see people asking about pension data – these are reporters … Then you’ll see unions coming in and making their own requests. … It’s quite fascinating what is happening, and that’s the kind of information I want to make public."

In addition, there will also be the school district payroll information from almost every state in the union.

Robertson, a Del Mar resident with children attending Del Mar schools, has founded, grown and sold several Internet companies, one of which was MP3.com which was the first company to popularize digital music.

NakedGovernment.org is set to launch later this month.

More turbulence in little Del Mar

By Marsha Sutton
Source: Carmel Valley News

Just when people were starting to feel like the Del Mar Union School District could begin to move forward after months of turmoil leading up to the recent firing of former superintendent Sharon McClain, board president Comischell Rodriguez dropped a bomb.

“Today I have informed the superintendent and board that I am resigning from the office of president of the Board of Trustees of the Del Mar Union School District,” her press release dated April 26 begins.

That simple sentence could have been enough, but Rodriguez didn’t stop there. She continued, in her statement, to level some very serious allegations against her colleagues, some that implied a violation of the Brown Act, among other transgressions.

“I’m not alleging Brown Act violations,” Rodriguez made clear this week. “I’m not alleging secret backroom meetings at all.”

But there are other charges that clearly perturbed her and made her feel marginalized by fellow board members. “I stand by my statement that says I felt isolated,” she said.

Rodriguez first complained in her press release that support for her as president of the board has been withdrawn, with the implication – as indicated by her use of the phrase “for the past few weeks” – that this has happened since the vote was taken on March 31 to fire McClain, an action that passed over her lone objection.

“For the past few weeks,” the full sentence reads, “I have been isolated by the majority of the board to the extent that certain members have taken it upon themselves to sign official documents without authorization.”

Furthermore, she said that “these same board member(s) meet with legal counsel without authorization.”

She goes on to say that “attempts have been made to exclude me from closed session conversations,” and she references “behind-the-scenes email conversations and demands.”

Responding to these statements by email, trustee Annette Easton said, “I have not signed any official documents. I am not aware of documents that have been signed.” And she said this, regarding meeting with legal counsel: “I do not know what she is talking about.”

“I didn't know what she meant by unauthorized signing of ‘official documents’ nor ‘exclusion from closed session’ and am unclear about what ‘behind the scenes demands’ she references,” said a surprised trustee Doug Perkins in an email.

Trustee Steven McDowell wrote to say, “Until I have spoken to Comischell, I don't feel it would be appropriate” to comment on the press release.

A dispute over timing

Trustee Katherine White, who responded to questions in a telephone interview, was able to give some hint about the possible cause of Rodriguez’s decision to resign as board president.

“I’m sure she’s talking about me when she says taking over the role of the board presidency,” White said. “It’s because I tried to get another member to fill her spot when she couldn’t do it.”

The issue concerns the contract for interim superintendent Jim Peabody. White and Rodriguez had agreed to work together on the contract for Peabody, whose first day at the district was to be April 1, a Thursday. The following week was spring break, when Rodriguez was away on vacation.

“I thought we were going to be doing it together,” White said. “I didn’t know she was going [away]. We hired him on the first. Then everybody went out of town.”

White claims that Rodriguez told White to find someone else to replace her because she was away on vacation and then needed to be gone after that for a personal family matter.

“She was supposed to work on that with me, and she’s the one who said she couldn’t do it,” White said.

White said Rodriguez wanted Perkins to replace her. “But Doug wouldn’t do it, so Steven came in because Doug couldn’t meet on any of the days,” White said.

White said she did sign a letter of intent for Peabody to begin work, but did it legitimately in Rodriguez’s absence. “That was one page that went through the terms that we all agreed on and that allowed him to start working,” White said.

White said she and McDowell met with attorney Jeanne Blumenfeld during this time but that the meeting was about Peabody’s contract. “It was not without authorization,” White said. “We were definitely authorized to do that by the board.”

Rodriguez disagreed with White’s recollection of the timing, saying White was “dancing around some facts.”

“We met very quickly at the end right before spring break,” Rodriguez said. “And it was decided that we would have a committee of two – it would be Katherine and me. It was determined that … I was going to be a part of it as president because that was supposed to be important.”

She said it was agreed that they would begin after spring break.

“I got home after spring break and found out that there had been work already started – not even started but basically done,” Rodriguez said. “I did not know that it was going to happen when I was gone.”

Rodriguez emphasized that she did not want to portray the issue as a dispute between two people, saying there was more going on than this one example. But it’s clear that this was specifically referenced in her resignation letter.

She said while she was away, she checked in with the district regularly, “because there were some items that I was still being asked to do while I was gone. Not at any time at all during that time was I informed that there was work being done in my absence.”

Rodriguez said she did eventually send an email to White telling her she was unable to participate in the contract work any longer, but that it was not sent until two weeks later, after she had discovered that work had already been done on the contract without her knowledge.

“It was almost like I was a formality to be on that committee,” she said. “It was spring break and then the following week went by and it was the third week [when] I said [to] meet without me.”

The subcommittee proceeded without her and the letter of intent was signed before she told them she was off the subcommittee, she said, disagreeing with White’s recollection of the timeline.

An investigation

At the last school board meeting, White asked Peabody to investigate Rodriguez’s claims and to release redacted emails “where Comischell resigns from the contract subcommittee and where she requests we find another member to take her place as she will probably be out of town due to an illness in her family.”

Peabody said he is in the process of investigating the matter and will release details as soon as he has completed his work.

“I can’t conjecture on what will be included in the report when it’s done because I haven’t even started it yet,” Peabody said last Friday. “I will report it to the board – they’re the ones that asked me to do it. So it will probably become a matter of public record. As soon as I can get a handle on it, I’ll be forthright.”

Rodriguez said she fully supports Peabody’s investigation, which will include this and other concerns raised by Rodriguez, including her alleged exclusion from closed session conversations and behind-the-scenes emails.

White disagreed that Rodriguez had been excluded from closed session conversations, expressing bewilderment.

“Go look through all of our minutes,” White said. “You can see when our meetings started, when our meetings ended, and who was at them. She was at every single second of closed session. I don’t know what she’s talking about.”

Easton seemed equally confused, saying, “Ms. Rodriguez has participated in all closed session conversations. I am not aware of any attempts to exclude her.”

All board members, except McDowell who did not respond to requests for a comment, expressed disappointment over Rodriguez’s decision to step down.

“I’m sorry she did it,” White said. “I nominated her and I stand by my nomination. I believe that she can do the job. But I’ll support her if she decides she can’t do this any more, and I’ll support her if she decides to continue.”

“I was perplexed and disappointed,” said Easton in an email statement. “From my perspective, while not always agreeing on decisions, the entire board was working well together.” She said the resignation announcement “only serves to further polarize and politicize a community in need of reconciliation.”

“My reaction to her resignation is I'm saddened, as I still believe, as I did in December, that Comischell has some unique leadership capabilities to help DMUSD navigate through these difficult times,” said Perkins. “I wish she'd reconsider and complete her office until it's up in December.”

Despite differences, all trustees agreed that the focus needs to return to the students and district business. Time to move on, was the common refrain. But will this community let them?

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

Attorney fires back over McClain case

Source: Del Mar Times
By Marsha Sutton

A letter from Dale Gronemeier, attorney for former Del Mar Union School District Superintendent Sharon McClain, to DMUSD Board of Trustees attorney Daniel Shinoff offered responses to a number of Shinoff's comments made in an interview published on DelMarTimes.net.

The letter, dated April 26, was "a demand on behalf of Dr. Sharon McClain" that Shinoff retract four "false and defamatory statements" made in that interview.

The first issue concerns the $16,000 payment the district was to make to California's State Teachers' Retirement System on behalf of McClain, and the ensuing dispute over a change in the language of this section of her contract.

Gronemeier objected to Shinoff's statement in the interview that "there is no paperwork to support a change in her contract."

"As you well know because [you] have received the document on multiple occasions, the Board of Education agreed on June 17, 2009 to the change proposed by Dr. McClain - but then after it hired you, the board's majority and you refused to acknowledge the board's action," Gronemeier wrote.

Gronemeier attached to his letter a copy of the minutes of the DMUSD's June 17, 2009, special board meeting that included item #5 which read: "Motion to approve revisions to contract between the Board of Trustees of the Del Mar Union School District and Sharon McClain, Ed.D." The motion was made by Katherine White, seconded by Comischell Rodriguez and passed unanimously. The contents and exact wording of the revision were not revealed in the minutes.

Related to the STRS issue, Gronemeier said Shinoff, by innuendo, blamed McClain "for the breakdown in settlement negotiations."

"As you well know," Gronemeier wrote, "settlement negotiations were sabotaged by the board majority because Dr. McClain made a settlement proposal and proposed a mediator to try to get the matter settled, but the board declined to even respond or further negotiate in response to her last settlement offer."

Gronemeier said these statements "have a defamatory sting because they attribute to Dr. McClain the conduct of demanding that the board do something it had not agreed to do."

Holding an open meeting

Gronemeier's second concern was Shinoff's statement that McClain "chose not to have those [charges against her] heard in open session despite the fact that she asked for an open session." This referred to the school board meeting on March 31 when she was fired.

But Gronemeier said McClain did ask for an open session in order to hear the charges against her. "The interactions which you attempt to mischaracterize as Dr. McClain choosing not to have the cause(s) heard in public arose from sneaky conduct on your part to which Dr. McClain objected," he wrote.

Gronemeier said Shinoff told McClain just before the meeting began that each party should be allowed to speak for 20 minutes. "A fair-minded person would have communicated this expectation in advance rather than trying to disadvantage his adversary by communicated [sic] it at the 11th hour," Gronemeier wrote.

Gronemeier said McClain had expected to speak for five minutes, a time limit to which Shinoff agreed just before the meeting began, at McClain's urging. But McClain's attorney said McClain still expected the charges to be delivered against her, in those five minutes, and was prepared "to respond to whatever you or the board majority had dreamed up. But Dr. McClain is not long-winded, and she knows that there is no valid cause to terminate her contract. So she would have had a short message if you had articulated the purported cause(s)."

He said this "has a defamatory sting" because it suggests "that Dr. McClain has something to hide and did not want the purported cause(s) part of the public record." It also relieves "the board majority and you of the responsibility of articulating them."

Cause for termination

Thirdly, Gronemeier said Shinoff implied that McClain "is lying about knowing the cause(s) for termination of her contract." McClain has responded "to every potential 'cause' to terminate her contract that you have drafted for the board majority ... by rebutting what was false in such documents and by remediating where there was even arguably anything to remediate," he wrote.

Gronemeier said she "was and is mystified as to what purported cause(s)" exist for terminating her. He said this "has a defamatory sting because it asserts that Dr. McClain is lying to the community" as to what her knowledge of the cause(s) may be.

Releasing invoices

Gronemeier's fourth point challenges Shinoff's statement that McClain's action to release Shinoff's invoices last December was a violation of the law.

In the April 15 interview, Shinoff said, "How could she who had retained a lawyer go through attorney-client communications and decide what she was going to release? She couldn't do that. She's not a lawyer."

Gronemeier said this comment was objectionable because McClain did not release the invoices on her own but had an attorney redact the invoice descriptions.

"Your invoices are a public record; the public is entitled to know the fees that are being paid to you," he wrote. "The invoices have no legend indicating that they are protected by the attorney-client privilege (nor are they nor would that insulate them from public disclosure)."

He said the invoices were available to Dr. McClain "in the ordinary course of her duties" and that "it is simply untrue that Dr. McClain violated any law by disclosing those invoices."

This too "has a defamatory sting because it asserts that Dr. McClain is breaking the law," Gronemeier wrote.

Damages

In conclusion, Gronemeier demanded retractions of Shinoff's statements. "They create liability for slander and conspiracy to libel for your client, for you and for your law firm," he wrote, adding that a retraction would not necessarily eliminate legal harm to McClain but that McClain "would prefer to avoid litigating these issues and would forego suing for the defamations if they are appropriately retracted."

The letter was sent to Shinoff, with copies to the five DMUSD board members, McClain and Marsha Sutton, who conducted the April 15 interview.

The complete letter, all eight pages, was posted on Facebook and a Del Mar blogspot site on April 27. McClain acknowledged she released the letter to a parent in the district.

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Shinoff response

In response to Gronemeier's letter, Shinoff replied within one hour with the following terse message:

I have reviewed your letter of April 26, 2010, demanding that I retract statements that I made to the reporter for the Del Mar Times. The reporter correctly reported what I said and I am confident that I can prove the truth of every statement that I made to her.

I do not believe that you can show falsity in any statement, even by innuendo or implication. Further, I believe that a court would determine that Dr. McClain is a public figure and the discussion is of interest to the public, so you would have a very difficult time with a defamation action, even if there had been a factual misstatement. Finally, you would be subject to dismissal under the anti-SLAPP (strategic lawsuit against public participation) statute if you did proceed with litigation over the alleged defamation.

I will not agree to retract anything that I said to the press. I stand by both the words I said, and the gist of the words."

• Gronemeier-Shinoff Demand Letter