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 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.

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.

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.

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

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

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

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

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

The letter from McClain's attorneys follows:

June 1, 2010

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

Re: McClain re Del Mar USD

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

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

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

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

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

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

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

Sincerely,

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

---

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

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

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

More information:

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

That "Property Thing"

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

In her letter, Ms. Takahashi writes:

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

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

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

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

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

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

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

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

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

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

More information:

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

An interview with former Superintendent Sharon McClain

Source: Del Mar Times

Thursday, May 13, 2010
By Karen Billing

Dr. Sharon McClain was hired by the Del Mar Union School District after a nationwide search and became the new superintendent in 2008 after Tom Bishop was released. McClain, the former superintendent of Hermosa Beach City School District moved to San Diego from Long Beach, living apart from her husband Joe Condon, also a former superintendent.

In coming to Del Mar, McClain said she knew there were some problems but thought she could help move the district forward. A year and a half later, on March 31, McClain was fired. Here she shares some thoughts about the board's decision and her plans to file a lawsuit against the district.

Have you decided to sue the district?

I am moving forward. My lawyers and I talked about how to move forward and what to do and we'll file papers. I'm letting him just take care of that. We talked about why and my basic reasoning is that the hardest thing for me is that when you worked in a profession almost 30 years and somebody accuses you of doing something bad so they can fire you and they're not clear with you what that is - it's my reputation.

And I know other superintendents have lost their jobs in California over the years, many of them have. But that's why we have a contract so there are some protections for you.

And the board didn't follow my contract either. They were supposed to have evaluated me by May 15 of last year; they didn't give me an evaluation until August so they breached my contract.

There are things like that in other districts but the board has at least honored the contract and this board refused to honor my contract. We had negotiated, agreed to a buyout of 12 instead of 18 months, which education codes gives me. We were negotiating to make it even less than that and I was willing to work with them but they just stopped negotiating.

I think they think this is the easy way out. But they haven't treated me fairly. I don't feel that I've been fairly treated.

Do you feel that the suit will take away from the children?

It's definitely going to cost the district. There's no way around it. But I didn't make this choice the board made this choice. They chose for me. I wouldn't have left. I would've worked on and did the best that I could and I was doing the best that I could do under the circumstances. And so I didn't make the choice. I feel like if the board hadn't done what they did I would still be in my office today instead of here talking to you.

What were some of the things you enjoyed about being superintendent here?

First of all Del Mar is really a wonderful district. The first thing it's got that's the best thing of all, it's got great kids.

Then you've got parents who are really involved and willing to step up and do all kinds of jobs in the schools. You can't go on a school campus that you don't have a parent working somewhere, doing something.

Then you've got really good staff, you've got wonderful teachers. Then you've got the principals and I know I'm sounding like Pollyanna but you truly have eight really good principals, you don't have a weak principal. Then you have the district office, which has a very strong staff.

How would you describe your working relationship with the board?

Our working relationship was difficult at times. One of the things that was very difficult for me was having so many board meetings. Our board was scheduled really to have only 12 meetings a year and in the first year we had 44 meetings. I counted them up and that was a meeting every five and a half days on average. And by the time I left at a year and a half we had 63 board meetings.

It was very difficult to keep up with the board meetings because there are a lot of legal requirements for school board meetings and published minutes and so forth, so it was difficult for staff with the amount of reports they were asked to do and I had a lot of people doing a lot of different things.

But I was lucky in that when I came to the district I had heard that the staff was really good but they really were good and they tried to step up and do the best job they could. That was the most difficult thing, the number of meetings and the number of things the board kept asking for over and over again.

When did you begin to see that it might not be working?

I think there was a disconnect between what I saw as the superintendent's job and the board's job and what they saw as the superintendent's job and the board's job.

The disconnect was that my philosophy is that the board sets the direction for the district, they have the 30,000 foot view of the district and then they leave the day-to-day operation of district to superintendent. And that wasn't the philosophy of the board. The board really became involved in the day-to-day operations of the district, which made it really difficult to those who were in administration of the district.

In December, the board held a meeting to discipline or dismiss you over a parent's complaint in a student discipline issue and they took no action. Were you thinking you and the board would be able to continue or did you have a feeling it wasn't over yet?

I think I knew at that time they were going to find something else. I felt like it wasn't over.

And that parent's complaint was the only one you know of?

Right. In August they wrote an evaluation document and said some things in the document that they wanted me to do and work on and some criticisms of some things that I had done. I responded. Their document was eight pages long and my response was 55 pages because I had a lot of evidence. They said 'You didn't do this,' 'You didn't do that' and I had done them to the best of my ability and the best job I could under the circumstances.

When did you find out about the dismissal? How were you told and what did they say?

I was in a meeting on Monday with the district office group. We met every Monday from noon to about 4 or 5 p.m. We were in that meeting and Comischell (Rodriguez) came in and she said she wanted to talk to Darlene (Nadlonek, district personnel technician).

I thought it was odd so I came out of the meeting and I asked, 'What's going on?' and I could tell by Comischell's face that something was wrong. We went back in my office and she (Comischell Rodriguez) said, 'Well it's the dreaded letter. We didn't make it.'

So you go into that special meeting knowing you would be fired or did you think public comment might be able to sway them?

Oh, I knew they were going to fire me. After I talked to Comischell, that was on late Monday afternoon and they had scheduled the meeting for Wednesday morning at 8 a.m. and of course nobody could've come to that. So Comischell insisted it would be at 12:30 p.m. and parents complained they couldn't be there at 12:30 p.m. because of picking up children, so it was switched it to 12:45 p.m.

The board was definitely trying to have meeting at a time when there would be least amount of resistance from the community so they had at time when a larger portion of community couldn't be there. I was surprised that so many people did show up and even some teachers tried to get away from lunch and left and actually spoke.

But I knew and I had cleaned out my whole office the day before. I was certain. There was no question in my mind that they were ready to terminate my contract.

What was that like, the decision to fire you made in open session, what were you feeling?

It was an awful experience. I devoted my life to education and since I was a little girl I wanted to be a schoolteacher. I achieved my goal and I got into administration because I wanted to make a difference and I felt that I could make an impact.

Now looking back on it I can see the biggest impact happens in the classroom, it really does. The rest of us are just facilitators to make whatever happens in the classroom work.

That was really a very difficult meeting for me. I prepared a statement ahead of time because I didn't want to sound bitter and angry and it was very very difficult.

I'm angry with Mr. (Daniel) Shinoff, the board's attorney, because he said I asked not to have a public meeting, which is absolutely not true.

I showed up at the meeting about 15 minutes before and learned at that time that I was supposed to speak for 20 minutes and I had no idea, he had never told me that so I protested to him and said I didn't think that was fair. He said 'Well, how much time do you need to speak?' and I said, 'About three, maybe five minutes,' and he said, 'Okay, I'll limit my comments to same amount of time.' He never said anything that that constituted as me asking not to have public hearing.

Another thing he said in that article (in an interview published in this newspaper), so I feel compelled to talk about it since he talked about my releasing his bills. Well his bills are public documents and I tried to protect those bills by having them redacted. I asked a different law firm, I didn't ask Mr. Shinoff's law firm to redact their own bills.

He asked me about that weeks before and I had told them who the lawyer was that redacted them and I told Comischell. I called the lawyer, Melanie Peterson, and told her Mr. Shinoff was really upset about how bills got redacted and she said to tell him to call her. So he knew that so for him to say in the paper that I had just sent them out and wasn't a lawyer didn't have the right to do that, that's just completely false.

And you were never given a reason for your dismissal besides "serious performance violations"?

No. The only document I have is the document from August, my evaluation, which I responded to. Then they wrote a letter to me about the parent complaint, a disciplinary letter saying you should've done this and I responded to that as well. So I haven't heard anything since.

When I talked to Comischell she said I'd get a document so I was expecting a document or I was expecting him (Shinoff) to read something at the hearing. I still don't have anything. So to me, I should still be working and I don't know what cause that they have.

The things in the August document, they weren't serious?

Well they were things like I should've hired somebody sooner for HR because we knew that Rodger (Smith) was leaving. But you know you don't hire someone six months before they start the job you generally hire three months or so before they start the job. You generally wait so I didn't agree with that. So I asked another person on staff to move into that position and the board said that was not legal.

I felt the things they were criticizing for were things within my purview as superintendent to do. And they felt they had to make all the decisions.

Another one was that Holly McClurg's (the staff person who filled the HR position until a permanent replacement was hired) name was in the board agenda and I shouldn't have done that and I went back and counted all the names of people hired in the agenda and there were 200 something. So those are the kinds of things that were in there.

To me they were picky and they were easily remedied so I didn't feel there was any substantial cause in that document and I don't feel there was substantial cause in the issue over the parent either so I don't know what the substantial cause is.

If there were substantial cause, why wouldn't they have told me? It doesn't make any sense to me at all. If I did something egregious to hurt the district, why haven't they come forward and told me what I've done?

I really believe it's more of a personality issue, what I said before - what my vision of what the superintendent's job is and what the board's job is and their idea of what it was.

What are your plans now and are you going to stay in San Diego?

Well, no. I will probably move back to Long Beach. My husband and I are making plans deciding what we're going to do. I am doing some consulting already and I'm enjoying that. I know that Tom Bishop, after he left, he coaches a lot of small district superintendents around the county so he's quite busy and I hope to be busy too.

Also, I love to teach. I've taught at graduate programs at so many different universities and I really miss it. I had always taught while being a superintendent. I'd been teaching at Pepperdine and Cal State Northridge and I had been doing that on and off while I was superintendent at Hermosa Beach.

When I came here I just did not have the time, I was just so overwhelmed with the number of board meetings and all the stuff that was going on, so I'm looking forward to doing that again.

And also spending time with your grandchildren?

I've got nine grandchildren and I'm really enjoying - the youngest one is only six months old so she's really a joy. The oldest one is 13 so he's in junior high school and that's really an interesting thing.

Do you have any advice for James Peabody?

I think that the community is going to make some important decisions in November. I think you need a board that has the whole community's interests at heart and I think that will happen in November and I think then it will be a good place for him to be working because everything else is in place.

You know the kids, the parents, the staff it's a good district. They consistently score higher and higher and I mean it's just amazing. And that's a team effort. The reason for that is that you've got good kids and really talented people working to help those kids. I think that he's in a good position to be for next two years and I wish him luck. I want the district to settle down and be happy.

Here for the awards? Your papers, please

Source: Union Tribune
By Logan Jenkins

A brick — the Crazy Heart Is a Lonely Hunter award — to Rep. Duncan Hunter, R-El Cajon, for his by-now-infamous prescription: the mass deportation of American citizens who lack “soul.”

Even making allowances for the setting — the first-term congressman was delivering red meat to tea party folks — young Hunter stepped into a YouTube bear trap when he suggested that citizens with American birth certificates born to undocumented parents should be deported.

“We’re not being mean,” he said. “We’re just saying it takes more than just walking across the border to become an American citizen. It’s what’s in our souls.”

Tell that one to Lady Liberty. (“It takes more than sailing across the Atlantic to become an American citizen.”)

Arizona, as you know, has come under blistering fire for a new law endowing state police with the power to ask for “papers” on the basis of how a person looks or acts.

Hunter would take that physical inspection to a psychic level. He would have us look deep into souls to determine if they owe their citizenship to the cracked soles of their parents’ feet.

Yes, there’s a fringe debate brewing over “anchor babies” and “birth tourism.” North County’s Rep. Brian Bilbray, R-Solana Beach, is keen on reversing the historical understanding of the 14th Amendment. Hunter is tracking the same prey.

For the time being, however, an American is an American is an American, period.

Anyone who disagrees has lost his soul.

A bouquet — the Resign, Baby, Resign award — to Comischell Rodriguez, the first-term trustee on the Del Mar school board who did something that more public officials should do when they’re really mad.

Resign.

As board president, Rodriguez says, she was subject to “the distractions of petty power struggles and nitpicking.” In response, she gave up the coveted title but, by remaining as a trustee, retains her voice and her vote.

This sort of gesture is one way elected officials can take a high-principled road while delivering low, but in many cases deserved, blows to opponents.

As the lone vote against firing Superintendent Sharon McClain on March 31, Rodriguez evidently failed a loyalty test among her board colleagues.

The other trustees — a controversial (a generous adjective) majority that got rid of former Superintendent Tom Bishop and then McClain, whom they hired — apparently cut Rodriguez out of the loop. Documents were signed, attorney consulted without her knowledge, she says. In her view, the president’s gavel had been taken from her.

So she took a bold step, newsworthy in itself, and sent out a press statement with teeth, if not talons.

Rodriguez didn’t get mad, at least not in public.

But she did get even.

A brick — the Impaired Reporting award — to the writer of this column for crashing into the history of Escondido’s driver checkpoints.

In Monday’s column, I wrote that two years ago the current Escondido police chief, “without council debate or vote, embarked on a controversial series of checkpoints to stop unlicensed drivers and impound their cars.”

Dick Daniels, Escondido councilman and candidate for mayor in the November election, told me the way it was:

“Driver checkpoints didn’t begin two years ago under Chief (Jim) Maher. (They were) initiated in 2004 by then-Chief Duane White, well before the rental ban ordinance. It wasn’t until well after the council abandoned the rental ordinance that attention became focused on checkpoints. And that’s the way it was.”

A check of the archives showed Daniels to be correct.

In late 2004, for example, The San Diego Union-Tribune reported that “police impounded 80 vehicles during a driver’s license checkpoint yesterday at Mission Road and Quince Street.”

A bouquet — the All Aboard ... Please award — to the North County Transit District for going the extra marketing mile to entice motorists to leave their cars and take the Sprinter in the merry month of May.

Weekend travelers who travel in pairs on the Sprinter (and the Breeze buses) will enjoy a 50 percent cut in the normal $5 fare. Yes, it’s the old two-for-the-price-of-one deal.

And this Friday, the NCTD is hooking up with the Oceanside Arts Commission to turn the Sprinter’s evening (4:30 to 7:30) commute into a festival called Art Traxx. At six stations, train riders will be regaled by musicians, dancers and “interactive visual artists.”

Who knows? Inducements may increase traffic on an underused — and oversold — line that to some is a potential boon (and others a boondoggle).

But I have a better idea than price-cutting and concerts at the end of a long work day:

Shoulder massages.

Hire masseurs to roam the trains giving free five-minute rubs. They say taking the Sprinter relieves stress. Here’s a way to make the claim demonstrably true.

You may have a better marketing idea. Send it to me. Together, we’re going to find the silver bullet to turn this Disoriented Express into a success.

Logan Jenkins: (760) 476-8212; logan.jenkins@uniontrib.com

The spiking of McClain's pension - in their own words

DEL MAR UNION SCHOOL DISTRICT
NOTICE OF SPECIAL BOARD MEETING
BY THE BOARD OF TRUSTEES

February 24, 2010
3:00 pm
 

Del Mar Hills Academy
14085 Mango Drive
Del Mar, CA 92014

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Full Agenda

Excerpted from the agenda:

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February 24, 2010

To:	Board Members
From:	Comischell Rodriguez, President, Board of Trustees
Through:	Dr. Sharon McClain, Superintendent
Subject:	Agenda Item 10: Board Discussion/Approval, Contract between Sharon L. McClain, Ed.D and the DMUSD Board of Trustees

It has come to the Board's attention that district staff have been unable to implement a provision in Superintendent McClain's contract reported revised on June 17, 2009. The Board firmly believes that all District employees should receive prompt payment of all benefits.

To determine what the issues are, and what Board action may be necessary, the Board has placed a discussion of Superintendent McClain's current contract on the agenda. By law, any discussion about the contract must occur in open session. Through this discussion the Board hopes to clear up any issues related to implementing all provisions of the contract.

FISCAL IMPACT:

Cost - Dena Whittington will be available to calculate the fiscal impact based on revisions to the original contract. Program or Department - Unrestricted General Fund Is this a Restricted Program? No Was this expenditure anticipated in the adopted budget? Yes, budget for superintendent's total compensation based on original contract. Will this Program or Department be over budget after this expenditure? No, if changes are within total compensation oforiginal contract.

RECOMMENDED:

The Superintendent recommends the Board discuss and take any necessary action.

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Below is audio from the February 24 public meeting. This is the full unedited audio from the DMUSD website in its entirety, the player resides on this site but the audio is being streamed from DMUSD's site. Alternately you can download the audio from the DMUSD site and listen to it in the player of your choice.

(3:32:42) Full unedited board meeting audio from dmusd.org

This is the exact wording of the contract amendment requested by Sharon McClain, as read by Katherine White at the Board meeting.

(01:21) Contract amendment read by Katherine White

This is Katherine White reading the letter Sharon McClain wrote to request the contract amendment.

(00:56) Request language

These are Dena Whittington's comments from the meeting where she discusses sending the amendment to CalSTRS and CalSTRS' response.

(01:34) Dena Whittington's comments

This is a compilation of Sharon McClain's comments during the discussion of her contract amendment.

(05:16)Sharon McClain's comments

This is a compilation of Board member comments regarding the reasons that they hadn't yet implemented the changes to Sharon McClain's contract.

(05:13) Board members explaining the delay in implementing the contract amendment

This is the public comment portion of the contract discussion segment.

(01:47) Public comment

This is an edited clip of the entire portion of the meeting where McClain's contract was discussed, edited only to remove long pauses, any other deletions, if any, are unintentional.

(31:42) Board meeting contract amendment discussion

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More information:

• Sharon McClain's employment contract with DMUSD
• Special Board Meeting • June 17, 2009
• Special Board Meeting Feb 24 2010
• Del Mar school district power play in progress
• McClain asks Board to make promised changes to contract

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

More legal wrangling: Gronemeier-Shinoff Retraction Demand

The letter below has been passed around to various groups of DMUSD parents on Facebook and through e-mail.

It was written by Sharon McClain's attorney, Dale L Gronemeier, to DMUSD private counsel Dan Shinoff and Education columnist Marsha Sutton in response to Sutton's interview with Dan Shinoff published April 15 in the Carmel Valley News.

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Source: Gronemeier-Shinoff Retraction Demand

April 26, 2010
Via e-mail and registered mail

Daniel R Shinoff, Esq.
Stutz Artiano Shinoff & Holtz
2488 Historic Decatur Road, Suite 200
San Diego, California 92106-0113

Re: McClain re DelMar USD

Dear Mr. Shinoff:

This letter is a demand on behalf of Dr. Sharon McClain that you retract the following false and defamatory statement that you are recorded as making in your April 15, 2010, interview by Marsha Sutton that was published in the Del Mar Times on April 15, 2010:

1. False statements that the Board of Education did not agree to, and that there was no documentation to support. change §8-E of Dr. McClain's employment contract:

Ms. Sutton's transcript records you as saying for "the $16,000 issue" ¹ that "there is no paperwork to support a change in her contract," "there was nothing that indicated that there was action taken to increase her salary" and "that" ² wasn't what the board had in mind in any event. As you well know because 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. A copy of the minutes of that Board action is attached.

The foregoing false statements by you were made in a broader context of your falsely blaming Dr. McClain for the breakdown in settlement negotiations by your innuendo that she was, without justification, insisting that the Board implement the Board's June, 2007 [sic], action - most specifically reflected by your statements "...and she retained an attorney, and everything became predicated upon the board capitulating to this demand for a salary increase which had never been agreed to" and "there were all kinds of threats of litigation." As you well know, 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.

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 in the broader context of your falsely asserting that Dr. McClain's insistence on doing so caused the breakdown of attempts to consensually resolve the issue.

2. False statements Ihat Dr. McClain refused to permit the expression by you and the Board of the asserted causes for her termination.

Ms. Sutton's transcript records you as saying [s]he chose not to have those heard in open session despite the fact that she asked for an open session - and "[s]he didn't want to have an open session to discuss the charges."³ Dr. McClain did not choose to prevent you from stating the grounds for termination, and she wanted an open session to discuss the charges. Dr. McClain formally communicated to the Board that she wanted the proceedings on March 31 in open session rather than closed session; she neither wrote anything rescinding that request nor orally stated that she wanted anything to occur in closed session. If you chose not to articulate the purported cause(s) for the Board majority's action, it was your unilateral choice to do so - presumably because you recognized the utter bankruptcy of the purported cause(s).

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. Shortly before the proceedings began, you told her that you and she should speak for 20 minutes. A fair-minded person would have communicated this expectation in advance rather than trying to disadvantage his adversary by communicated it at the 11th hour. Dr. McClain took exception to your belated notification because she only expected to speak for around 5 minutes. She told you that she thought your belated notification of this expectation was wrong and that she only expected to speak for about 5 minutes. Having been challenged by her for you sharp practice, you responded by agreeing that you would only speak for 5 minutes. Dr. McClain said nothing indicating that you should not state the cause(s) by which the Board majority was purporting to terminate her contract. On the contrary, she expected you to state such cause(s) and 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).

The foregoing false statement has a defamatory sting because it is made in the broader context of your interview responses suggesting that Dr. McClain has something to hide and did not want the purported cause(s) part of the public record. Your interview then makes conclusory assertions that Dr. McClain failed to comply with the law and failed to perform her job as Superintendent, implying there is substance to the cause(s) but relieving the Board majority and you of the responsibility of articulating them - all with the false innuendo Ihat Dr. McClain has something to hide.

3. False statement that Dr. McClain is lying about knowing the cause(s) for the termination of her contract.

Ms. Sutton's transcript records you as saying, with respect to the "charges," ⁴ "... I heard she said. 'I have no idea what they're talking about.' Well, that's just not true." But it is true. What Dr. McClain knows is that she has followed the contractual process of responding to every potential "cause" to terminate her contract that you have drafted for the Board majority by responding as required by the contract - i.e., by rebutting what was false in such documents and by remediating where there was even arguably anything to remediate. Dr. McClain is quite aware that you have been, since you were hired last summer, trying to create a paper-trail to justify the termination of her contract, but she is also quite aware that she has always appropriately responded pursuant to the provisions of the contract to each such attempt and that, after she has done so, the Board majority has not reasserted any such potential causes. So she was and is mystified as to what purported cause(s) the Board majority allegedly relies upon. Dr. McClain is therefore requesting that the Board majority communicate to her the purported cause(s) upon which it relies.

The foregoing false statemcnt has a defamatory sting becausc it asserts that Dr. McClain is lying to the community as to what her knowledge of the Board majority's purported cause(s).

4. The false assertion that Dr. McClain broke the-law by releasing your (redacted) invoices to the District.

Ms. Sutton's transcript records that she asked you "Was her releasing your invoices [last December] a violation of the law?" and that you responded "Yes." The invoice's descriptions were redacted - redacted by another attorney on behalf of the District and not by Dr. McClain. Redacting the invoices was not even necessary because the only information that would have been in them would be foundational information about the existence of a privileged communication, which is not privileged information. Your invoices are a public record; the public is entitled to know the fees that are being paid to you. 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. The invoices were available to Dr. McClain in the ordinary course of her duties. Nothing was done by you or the Board majority to protect any arguable confidentiality until you were upset that the amount of your fees had been disclosed to the public. While I can understand that you are unhappy about the disclosure of how much your income has been fattened by this engagement to do the Board majority's dirty-work, it is simply untrue that Dr. McClain violated any law by disclosing those invoices.

The foregoing false statements were presumably made in the course of your representation of the Board of Education of the Del Mar Unified School District. They create liability for slander and conspiracy to libel for your client, for you, and for your law firm. Demand is made that you retract each and every one of them. While even a retraction would not necessarily eliminate the legal harm, Dr. McClain would prefer to avoid litigating these issues and would forego suing for the defamations if they are appropriately retracted. However, in the event they are not appropriately retracted, she reserves her legal remedies for defamation against your client, your firm, and you.

Sincerely yours,

GRONEMEIER & ASSOCIATES, P.C.

By Dale L. Gronemeier
Attorneys for Sharon McClain

cc: Board Members via e-mail
Marsha Sutton via e-mail
Client via e-mail

Enclosure

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1. "The $16,000 issue" refers to paying the sum in §8-E, initially specified for a non-STRS retirement account designated by Dr. McClain, in salary instead, minus the District's STRS contribution so that the amended amount would be revenue neutral for the District.
2. "That" refers to the $16,000 issue.
3. There are other prefatory statements in response to the same question "[I]s there more to it than that issue" that mischaracterize the interactions between you and Dr. McClain at the March 31 Board meeting for the purpose of supporting this defamatory statement.
4. The "charges" refer to the Board majority's purported causes for terminating Dr. McClain's contract.

A Spike in DMUSD's Heart

The California State Teachers’ Retirement System (CalSTRS), the second-largest public pension fund in the nation, lost 25 percent of its value in 2009, and is carrying close to 50 billion dollars in unfunded liabilities.

CalSTRS members, which include both administrators and certificated district employees, receive pensions paid according to a “defined benefit”, which means that a member’s pension is determined according to their creditable salary and years of service and does not depend on the amount paid into the plan.

Typically, CalSTRS members contribute 8% of their salary to STRS, the district contributes 8.25%, and the state of CA kicks in another 2.1%. In this current time of financial crisis and rampant unemployment, one of California’s major issues is paying the pension obligations for teachers and other public employees who are no longer working. The defined benefit structure of CalSTRS makes it particularly susceptible to abuse by members who collect benefits far in excess of their contributions.

Enter Sharon McClain, former superintendent of the Del Mar Union School District. In addition to her salary, McClain’s employment contract with the DMUSD included annual benefits of: 6 weeks of vacation and 24 days sick leave, and a $4,800 automobile allowance. In addition there was $16,000 to be used “to offset her employee contribution to the State Teacher Retirement System or to fund a tax sheltered annuity, or some combination of thereof”.

However well-intentioned that $16,000 retirement benefit was, it has already cost the district far in excess of $16,000 in legal fees and it’s not over yet. Instead of using the $16,000 to offset her 8% contribution to STRS, Sharon McClain did the math and determined that if that money could somehow be classified as salary, it would raise the basis on which STRS calculates her retirement benefit and guarantee her higher retirement payments for the rest of her life.

To show the effect of such a reclassification of income, below is a very rough calculation of how creditable income for McClain might be calculated by STRS. The last two rows of the table show McClain’s income with and without the additional $16,000 added.

	2009-2010	2010-2011	2011-2012
Salary (184 days)	$178,000	$183,000	$188,000
Vacation (6 weeks)	$29.022	$29,837	$30,652
Sick leave (24 days)	$23,218	$23,870	$24,522
Auto allowance	$4,800	$4,800	$4,800
Creditable income*	$182,400	$187,400	$238,370 (incl. vacation)
Creditable income + $16,000 retirement	$198,400	$203,400	$254,70

^*The creditable income was calculated with the following assumptions: Salary + auto allowance + 45 vacation days accrued and paid at end of contract, 30 vacation days from final year and 15 from previous year.

Using the creditable income figures above, a rough calculation of Sharon McClain’s possible retirement benefit was made using the benefits calculator on the STRS website.

	Current Contract	Amended Contract	Gain
Monthly Benefit*	$12,719	$13,689	$970
Annual Benefit*	$152,623	$164,268	$10,645

^* STRS benefits calculated using birthdate Feb 1945, retirement date Jul 2012, creditable service 30 years, unused sick leave 60 days, no service credit or incentive.

From the above figures, it is easy to understand what Sharon McClain’s motivations were for requesting this change, she stated at the February 24 board meeting that the change was worth $200,000 to her, a substantial financial incentive.

If the district were to redirect McClain’s retirement contribution to her salary, she would owe 8% of that amount to STRS, the DMUSD would be responsible for another 8.25%. If she were to be eligible for a performance bonus, her increased salary would increase the basis on which the bonus was calculated.

The exact changes requested by Sharon McClain to paragraph 8E of her contract were:

During the term of this contract or any renewal or extension thereof, the Board shall provide the Superintendent an annual fixed additional salary retirement contributions in the amount of Sixteen Thousand Dollars ($16,000) at no additional cost to the district. At her discretion, the Superintendent may elect to use the retirement contribution payment to offset her employee contribution to the State Teacher Retirement System or to fund a tax sheltered annuity, or some combination of thereof.

In a letter to the board, she gives the following reasons for the change:

I’m asking permission to change this section for three reasons:

• First, I believe the board’s intention was to meet my need to boost my retirement income which is based on the highest year’s salary.
• Secondly, Ricardo Soto, Annette and I agreed that the contribution was to be given annually, and was not specified in the contract.
• Third, having the option to add this amount to my compensation during my first year of employment will make a difference in my STRS calculation for retirement.

Most importantly, it would help me avoid the problem of STRS personnel determining that my salary was spiked.

I will pay the 8% cost of STRS, $1,200 each year so there will be no cost to the district.

This request will not affect my total compensation, there is no additional cost to the district, nor will it affect the annual salary or any increases made to it through the step system in the future. Any increases given will not be calculated on a larger base. The salary schedule outlined in the contract will remain the same unless negotiated differently.

McClain asked that the increase count as salary, but with differences. This salary would require her to pay the district’s portion of STRS, and this salary would not be a basis for any percentage salary increases. She did not address whether or not unused sick and vacation days would be paid at the higher rate.

So, was Sharon McClain trying to spike her pension? Pension spiking is defined as the intentional inflation of final compensation with the primary purpose of increasing the retirement benefit. McClain’s request seems to fit this definition to a T.

CalSTRS specifically prohibits pension spiking. The problem with such practices is that since salary spikes take place shortly before retirement, the inflated benefit that spiking produces is unfunded, which has an adverse impact on both the funding and credibility of public retirement systems.

By Sharon McClain’s own account, for the cost of an additional $1,200 per year ($3,600 total), she gains an additional $200,000 in retirement benefits, a very respectable and unrealistic rate of return on her investment.

Fortunately, this sort of salary manipulation is available only to an elite few members of CalSTRS, district administration. Classroom teachers are subject to collective bargaining agreements and do not have the power to manipulate their employment contracts individually.

Concerned over such abuses, CalSTRS regulations now specifically disallow:

• Compensation paid for the principal purpose of enhancing a member’s retirement benefit, as determined by CalSTRS
• Compensation paid for a limited period of time
• Compensation for service in excess of 1.000 years of service in a school year
• Compensation with restrictions on how the employee spends the compensation, or where they are required to document how it was spent

CalSTRS controls the practice of pension spiking by auditing school districts, combined with the provision of law that permits the Board to determine whether particular compensation is being paid for the principal purpose of enhancing the pension benefits. A presumption by CalSTRS that spiking has occurred can only be reversed upon receipt of sufficient evidence to the contrary. By auditing school districts, CalSTRS is able to identify circumstances in which the employer reported compensation that appears to CalSTRS to be spiking.

Last June 17, at a special closed meeting, the Board of Trustees unanimously voted to approve Sharon McClain’s request to modify her contract, a decision that is almost impossible to comprehend given that her request sounds like a textbook definition of pension spiking. Had the board just denied her request back in June, we could have nipped this particular piece of drama in the bud and saved the district tens of thousands of dollars.

Upon receipt of McClain’s proposed amendment, Dena Whittington, assistant superintendent of Business Services, sent it to her STRS contact at SDCOE, who in turn passed it on to STRS in Sacramento. Unsurprisingly, STRS responded that any increases in Ms. McClain’s salary resulting from the transfer of funds as written in the contract amendment could not be used for purposes of calculating her retirement income.

Although the Board of Trustees had voted to approve the contract change, they hadn’t signed the amendment and were unsure of how to proceed after the STRS determination. And then the legal wrangling began.

Sharon McClain’s attorney Mr. Gronemeier wrote nine letters to the board on November 19, December 11, 13, 14, 15, 17, 19, 21, and February 3, in an attempt to force them to honor the contract amendment they’d agreed to in June. The board retained their own attorney Mr. Shinoff, and asked McClain for an amendment with different wording that would satisfy STRS. In the February 24 meeting, McClain asserted over and over that she’d “given [the board] the remedy”, but from their discussion it does not appear that “the remedy” included an actual written amendment that could be sent back to STRS for approval.

McClain maintained over and over in the February 24 meeting that this amendment would cost the district nothing, but her proposal as written, even if approved by STRS, would at minimum have cost the district additional pay for sick and vacation days.

But those costs pale in comparison to the legal fees, not to mention the time that both she and the Board of Trustees have expended on this matter, reading and responding to letters in an endlessly circular argument that could only have been resolved by submitting a new amendment to STRS.

If McClain and the Board had managed to come up with an amendment that would be acceptable to STRS, where do any of them think that $200,000 comes from? It is exactly such abuses that have led to the current financial state of CalSTRS. Are we taxpayers and unemployed parents and teachers who share the CalSTRS pension pool so insignificant that our contributions to McClain’s pension don’t count? Why didn’t the board take a stand for their constituents back in June?

It’s inexplicable, and in the long run, it's us, the parents, the constituents, the taxpayers who are left holding the bag for the ongoing posturing and grandstanding by both Sharon McClain and our elected Board of Trustees, who should have just said no.

…All in all, it’s just one more brick in the wall…

- A DMUSD parent (Torrey Hills)

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More information:

• June 17 Special Board Meeting Minutes
• Del Mar School District Power Play in Progress
• Audit finds 2 pensions were hiked
• Judge agrees with auditors