Thursday, April 17, 2014

Witness says Sweetwater officials wanted to bypass the entire list of underwriting firms picked by selection committee and give job to Gary Cabello

Witness: District pushed poor underwriter
The county official says she was told he 'has to be on that list'
By Aaron Burgin
June 14, 2013

Gary Cabello, 54, bond financier, is accused of offering thing of value to a school official and bribery

A former San Diego County investment officer was taken aback when Sweetwater schools officials pushed to have the least qualified bidder selected to market Proposition O construction bonds, she testified to the grand jury.

Michelle Durgy, now the chief investment officer for the city and county of San Francisco, served on a panel to help select the underwriter.

The committee did not select Gary Allen Cabello, who is now charged with bribing officials at Sweetwater and Southwestern College to obtain multimillion dollar underwriting contracts for his company, Alta Vista Financial. He has pleaded not guilty.

Durgy testified that Sweetwater officials told her Alta Vista would have to be selected.

“And I said, 'Oh no, that is not happening,’” Durgy told the grand jury.

South County Grand Jury transcripts Vol. 5 Download .PDF

Her testimony was among the 4,000 pages of grand jury transcripts a judge released last month, amid objections from defense attorneys who claimed the release would prejudice potential jurors against their clients.

Durgy was on the selection committee for the Sweetwater Union High School District’s $644 million bond because the county advises districts on certain financial matters such as bond issuances and investment management.

Following the firms’ interviews, the selection committee picked two major underwriting firms and two minority-owned firms as their recommendations to the board. The list did not include Alta Vista.

When former Sweetwater Chief Financial Officer Dianne Russo saw this, she quickly objected and said that Alta Vista must be included, Durgy testified.

“At that point, Diane spoke up again and said, “Oh, (former Sweetwater Superintendent) Jesus Gandara... is not going to like this,” Durgy said. “And I said, ‘Well, too bad. That’s who we selected.’ She said, ‘No, no, Michelle, you don’t understand. Alta Vista has to be on that list.’”

Of the 10 firms that interviewed, Durgy said that Alta Vista performed the worst. They were admittedly unprepared and she described their presentation as thin.

“They started off by saying, ‘Wow, we are not really prepared today, we kind of pieced this,’” Durgy said. “And I thought, oh, you know, this is not professional at all.

“And I ... came away thinking... I gave them an opportunity to redeem themselves and that certainly was not the case, and I am unimpressed with this. And I scored them the lowest out of all the firms because they were — it was pretty sad.”

Durgy testified that she thought Russo was kidding at first, but then Russo said that not only did Gandara expect them to be on the list — he wanted them to be the lead underwriter.

Durgy said she was eventually overruled by the rest of the selection committee, and Alta Vista was included.

Durgy said that the recommendation was that Alta Vista play a minor role in the underwriting. Ultimately, however, Cabello’s firm participated in underwriting nearly $350 million in bonds at Sweetwater and Southwestern College.

Durgy said she compiled all relevant correspondence in a memo at the request of her boss, County Treasurer Dan McAllister, after Durgy raised concerns about the integrity of the process.

3 school staffers on leave in Vegas cheating probe

3 school staffers on leave in Vegas cheating probe
Associated Press
April 16, 2014

LAS VEGAS (AP) — Three Clark County School District employees are on leave after a state investigation concluded adults altered the answer sheets on standardized tests at a Las Vegas elementary school, leading to skyrocketing scores from one year to the next.

The Nevada Department of Education issued a statement Wednesday saying the 2011-2012 test scores at Kelly Elementary School will be invalidated. A district spokeswoman said Principal Patricia Harris, Assistant Principal Steven Niemeier and Associate Superintendent Andre Denson have been placed on leave and could face disciplinary measures, such as losing their licenses.

"I have no doubt that a testing irregularity occurred at this school and that student answer sheets were altered by one or more adults in the system," state Superintendent Dale Erquiaga said. "Testing-security procedures were also breached. However, the investigation has not yielded the identity of the individual or group of individuals who changed the answers in 2012."

The three administrators could not immediately be reached for comment Wednesday afternoon.

The investigation into Kelly Elementary's suspicious scores began after a tipster submitted an anonymous report in April 2012 alleging that the school's principal coached students to change the answers on a statewide Criterion Referenced Test administered in the spring of 2012. An associate superintendent interviewed the principal in May, asked her whether she had coached the students, and then concluded the investigation when the principal said she hadn't, the state report said.

But scores released in June 2012 showed eyebrow-raising improvement at the low-performing school. State data show that from 2008 to 2011, the number of Kelly Elementary fifth-graders considered proficient in reading never reached 25 percent. That figure leaped to nearly 78 percent for the 2011-2012 school year, and it hovered at 72 percent in 2012-2013.

The results fit neatly into the narrative of reforms transforming a struggling school, the report said: a low-achieving school implemented major changes, test scores turned around and student success was celebrated. When the scores were released, school officials provided no explanation for the dramatic improvement aside from saying students tried hard and reforms were in place, the report continued.

The high scores landed the school a coveted five-star ranking during the first year Nevada started using such a measurement. While the star rankings can boost a school's reputation, a good score doesn't come with a financial award, and no employees have been fired on the basis of their ranking, district spokeswoman Kirsten Searer said.

During the investigation, which also included the Nevada Attorney General's office, an erasure-detection analysis found a disproportionate number of answers were changed from wrong to right.

When the district supervised the test in 2013, scores declined significantly, education officials said. The school's ranking also plummeted to two stars.

The education department deposed or interviewed fifteen witnesses, including teachers who gave the test, the school's office manager and administrators. Investigators also reviewed more than 2,000 pages of documents obtained through subpoenas, officials said.

Clark County School District Superintendent Pat Skorkowsky said he's grateful for the investigation and will review the findings to determine the next steps.

"It is important that our community have faith in the validity of our standardized testing," he said in a statement. "Once I have had a chance to review the department's full report and recommendations, I will take appropriate action so our students, parents and community can move forward."

Wednesday, April 16, 2014

Ex-city manager of Bell, California gets 12 years for corruption

Robert Rizzo

Ex-Calif. city manager gets 12 years for corruption
Michael Winter
April 16, 2014

An astonishing case of small-city corruption ended Wednesday as the longtime administrator of Bell, Calif., was sentenced to 12 years in state prison for paying elected officials lavish salaries and using the public coffers as a piggy bank for himself and other employees.

"Power corrupts, and absolute power corrupts absolutely," Los Angeles County Superior Court Judge Kathleen Kennedy said in sentencing Robert Rizzo and ordering him to pay $8.8 million in restitution. "That is the theme of what happened in Bell. There were no checks and balances to control Mr. Rizzo and those that were in power in the city."

On Monday, a U.S. judge sentenced Rizzo to 33 months in federal prison for income tax evasion. His state and federal terms will run concurrently, and he must surrender to U.S. authorities May 30 to begin his incarceration.

Rizzo managed the working-class city for 18 years before the graft was uncovered in 2010. Though nearly 25% of Bell's 36,000 residents live below the poverty line, Rizzo's pay and benefits totaled $1.5 million a year. Kennedy called his salary and those of council members and other officials "absolutely ridiculous."

"Nobody wanted to upset the apple cart because they were paid so well," she said, describing him as "a godfather of sorts."

The pay packages were part of a larger scandal. A state audit found that Bell had illegally raised property taxes, business-license fees and other sources of revenue to pay the officials' extravagance. By the time it was uncovered, auditors said, the graft had cost the city more than $5.5 million and pushed to the brink of bankruptcy.

At the time of his arrest,, Rizzo was the highest paid city official in California -- and possibly the nation -- and would have been the state's top earning public pensioner had he retired.

Before learning his fate Wednesday, he spoke publicly for the first time since the scandal broke.

"I'm very, very sorry for that. I apologize for that," he said in a soft voice. "If I could go back and make changes, I would. I've done it a million times in my mind."

In an interview with the Los Angeles Times as he walked to his car after his sentencing, Rizzo said he "should have realized the salaries were way out of whack and taken steps to bring them back in line, but it just got away from me."

"There's not much I could do after a period of time," he said.

Under a deal with prosecutors, five former City Council members pleaded no contest to misappropriating city funds, and Kennedy will begin sentencing them in June. Punishments range from probation to four years in prison, and all must make restitution and never again seek public office.

One council member, a preacher, was acquitted.

Last week, Rizzo's deputy, Angela Spaccia, was sentenced to 11 years and eight months in state prison for misappropriating public funds by giving herself enormous raises. When a jury found her guilty in December, her salary was $564,000.

On the witness stand, Spaccia acknowledged that she felt she was earning too much when her salary passed $340,000, but argued that it was not criminal.

New trial begins in electronic document destruction case Allyn v. Fallbrook Elementary Schools; bizarre mistrial had been granted by Judge Stern

Dan Shinoff and Judge Stern must be crossing their fingers, hoping that the new trial goes better for Fallbrook Elementary Schools than the first one did.

The new trial is scheduled for Monday April 21, 2014 (assuming a courtroom is available).

Tuesday, April 15, 2014

Sorry, teenagers. It's not looking so good for marijuana: a new study links casual marijuana use with significant changes to parts of the brain

DEA photo of marijuana; chocolate cake might be a better option since cocoa has antioxidants and phytochemicals.

A lot of kids are going to be unhappy about this news. But there are other things to enjoy. How about some chocolate?

Casual marijuana use linked to brain changes
Karen Weintraub
April 15, 2014

Using marijuana a few times a week is enough to physically alter critical brain structures, according to a new study published Tuesday in The Journal of Neuroscience.

"Just casual use appears to create changes in the brain in areas you don't want to change," said Hans Breiter, a psychiatrist and mathematician at the Northwestern University Feinberg School of Medicine in Chicago, who led the new study.

There is actually very little research on the potential benefits and downsides of casual marijuana smoking — fewer than four times a week on average.

In his study, done in collaboration with researchers at Harvard University, scientists looked at the brains of 20 relatively light marijuana users and 20 people who did not use it at all. All 40 were college students in the Boston area.

The study found volume, shape and density changes in two crucial brain areas — the nucleus accumbens and the amygdala — involved with emotion and motivation and some types of mental illness. "This is a part of the brain you do not want to mess around with," Breiter said.

The more marijuana the students smoked, the more their brains differed from the non-users, the study found.

The brain continues to develop well into the 20s, and even into the 30s, said Breiter, who is concerned about the long-term impacts of marijuana use on the developing brain.

Staci Gruber, an associate professor of psychiatry at Harvard Medical School, who was not involved in the research, said Breiter's findings are consistent with her own, although she has focused on somewhat heavier users.

"There have been a growing number of studies that suggest that marijuana use in emerging adults is associated with differences in brain structure and cognitive abilities," said Gruber, also the director of Cognitive and Clinical Neuroimaging Core at McLean Hospital outside Boston. "I'm not saying (pot smoking) is analogous to shooting heroin or cocaine, but it's also not quite the benign substance people thought it was."

Responding to a study that found a decline in IQ points among people who used marijuana regularly, Francis Collins, the director of the National Institutes of Health, told USA TODAY recently that people should be more aware of these potential brain impacts.

"Perhaps it would be better if ... there was a little bit more recognition of that particular consequence," he said.

Gregory Gerdeman, a biologist and neuropharmacologist at Eckerd College in St. Petersburg, Fla., said he has no reason to doubt the new study's findings but worries generally about marijuana research funded by federal agencies, like the Office of National Drug Control Policy, which is charged with limiting drug use. (The research was supported by grants from the National Institutes of Health as well as the Office of National Drug Control Policy and Northwestern Medicine's Warren Wright Adolescent Center.)

"If you're getting money from the drug czar's office, that money's not going to continue if you don't end up publishing something that at least supports the general story of the danger of drug abuse," Gerdeman said.

He said it doesn't surprise him that heavy pot smoking might make it difficult for students to reach their intellectual potential. But still, he said, "if it were my child, even with this study, I'm more comfortable with young people having a casual marijuana habit than drinking regularly."

Emails show NCTD changed paperwork after info request

How does Investigative Newsource choose which entities it's going to investigate? The news service founded by Buzz Woolley and Irwin Jacobs at San Diego State University seems to work from a rather private agenda. Some public entities are targeted, some are protected by inewsource.

Buzz Woolley and Irwin Jacobs apparently directed their other news outlet, Voice of San Diego, to stop investigating SDCOE (San Diego County Office of Education).

But clearly, Buzz and Irwin feel that North County Transit District is fair game. Perhaps it's closer to home for them?

Emails show NCTD changed paperwork after info request
by Brad Racino
March 27, 2014

The North County Transit District commissioned a $31,200 study without seeking competitive bids, then changed paperwork and attempted to backdate a new contract after inewsource requested the documentation, emails show.

Read this story completely backed up with primary documents.

The study, conducted by the UCSD Rady School of Management on Dec. 20, 2013, details the strengths and weaknesses of NCTD’s leadership team. When the district refused to release it, inewsource sued last week to obtain it.

The public transit agency did release 28 pages of emails in response to another inewsource request that discuss the study’s initial contract and the attempt to alter it retroactively. In the end, according to the emails, the contract type was changed but the date was not.

NCTD has placed at least one employee in its contract department on administrative leave and brought in an outside investigator to look into the process used to contract with the Rady School of Management.

NCTD would not respond to a list of questions inewsource submitted about the contract changes discussed in the emails.

A continuing issue

The Rady School of Management study was not the first time NCTD contracted for services without seeking bids on the work.

In a formal report from September 2012, the private consulting firm SC&H Group observed that the district was using sole-source contracting “without appropriate justification” and possibly as “workarounds” for competitive bidding.

State law requires government agencies to bid out most expensive services, since open competition helps thwart favoritism, fraud and corruption from the acquisition process. But there are exceptions to the law when unique services or specialized skills are required.

doc_graphicRead the SC&H Group’s review.

The SC&H review cautioned NCTD that awarding too many of these sole-source awards, “may result in increased regulatory scrutiny and potential fines.” After the consultant’s report became public, inewsource examined district contracts and found that NCTD’s manager of marketing and communications had recently awarded an unnecessary $50,000 contract to her former colleagues under a sole-source contract.

NCTD later confirmed the award was “not justifiable” in a report to its board of directors and changed district policy to prevent similar occurrences.

A memo inewsource obtained as part of a Public Records Act request indicates the district “discovered” that the new Rady School of Management contract “had been processed in error as a sole source” on Feb. 10, 2014. It did not say how the “error” was discovered or exactly why it was an “error.”

Timeline of past events:

October 2013: NCTD CEO Matthew Tucker and Human Resources Manager Karen Tucholski meet with Rady School of Management representatives to discuss NCTD’s goals and Rady’s offerings.

November 2013: NCTD staff completes online preliminary assessments for the Rady evaluation.

Dec. 9, 2013: Rady sends NCTD an invoice for $31,200 for the leadership program. The invoice notes a due date of Jan. 9, 2014. There is no contract in place.

Dec. 20, 2013: NCTD staff attends the one-day Rady School of Management program at UCSD.

Jan. 9, 2014: Due date for Rady invoice passes.

Jan. 16 – 29, 2014: Three NCTD managers sign and date the Rady sole source agreement.

Feb. 7, 2014: NCTD pays the Rady School of Management for the service. inewsource submits a Public Records Act request for the Rady scope of work and method of contracting.

Current Events

On Feb. 7, a Friday, inewsource submitted a Public Records Act request asking what type of contract NCTD used with Rady.

On Feb. 10, a Monday, at 10:41 a.m., NCTD staff exchanged emails under the subject heading “UCSD — Rady.”

One read:

“There have been a few changes. The sole source is no longer needed.”

Karen Tucholski, NCTD’s Human Resources manager, was told by Fred Knapp, an NCTD management analyst, to scrap the sole-source form — which had already been completed, signed, and used to pay UCSD the $31,200 — and instead use a different method of procurement.

On Feb. 11, Tucholski passed the new form up the ladder for signature. She also sent the Rady agreement to the district’s CEO, Matthew Tucker, to sign and backdate two months. He did not sign the new form. He did sign the agreement but did not backdate.

doc_graphic Read the entire email chain.

The next day, on Wednesday, Feb. 12, an employee in the contracts department expressed concern about a public request for information about the still-unfinished paperwork.

“Getting this completed needs to be a top priority,” she wrote to Tucholski. “There has been a PRA [Public Records Act request] for some of this information and the invoice has already been paid based upon the sole source documentation.“

The agency’s own compliance officer, looped into the conversation that day, appeared confused by what was happening.

“Isn’t all of Rady’s work complete?” he wrote to Tucholski that same day. “…I’m not sure I see the value of going through this process.” He then recommended adding a memo to the case file explaining the timing and circumstances of the proposed changes.

According to this month’s board agenda, NCTD is planning to award a $213,000 contract to a different consulting company, called Calyptus Consulting Group, for a Rady-like study of its procurement division. The competitively-bid contract will result in a detailed report and analysis, which the district plans to keep confidential as “attorney-work product.”


inewsource is an independent San Diego State University’s School of Journalism and Media Studies.

Karin Winner is on the board. She was editor and VP/News of the San Diego Union-Tribune 15 years; retired in 2010.

Saturday, April 12, 2014

South Carolina Christian School Fourth Grade Science Quiz

South Carolina Christian School Fourth Grade Science Quiz
by gizmo59
Daily Kos
Apr 26, 2013
The source of this quiz is the father of the student who took it. He will not identify the school until June, after his daughter finishes the school year there, after which she will move to another school. Snopes rates this item as "probably true.

Friday, April 11, 2014

Is the public served when attorneys and litigants do favors for judges? Let's take the politics out of choosing judges

See blog post: Chief Justice John Roberts: Judge Brent Benjamin doesn't have to recuse himself just because of a measly $3 million campaign contribution

Electing judges is a bad idea, but appointing judges is almost as bad. Why not create a pool of highly-rated attorneys, created by the Bar Association (we don't want to eliminate politics completely, right?), and then use a lottery to choose judges from that pool as positions become available?

Seriously, why not? The only reason not to do this is to keep politics in the courtroom.

But for now, we're stuck with judicial elections in San Diego. Let's choose the best candidates. Federal prosecutor Carla Keehn is running against Judge Lisa Schall in June 2014.


The Divide
American Injustice in the Age of the Wealth Gap
Matt Taibbi and Molly Crabapple
April 6, 2014

...On how he discovered 'the divide'

I was covering these gigantic Wall Street white-collar-criminal scandals, and I became interested in the concept of why nobody was going to jail, why we didn't have criminal prosecutions. And then it occurred to me that it's impossible to really talk about the gravity of that problem unless you know who is going to jail in the United States, and how those people go to jail and how that works.

What I ended up finding is that it's incredibly easy for people who don't have money to go to jail for just about anything. There's almost an inverse relationship between the ease with which you can put a poor person in jail for, say, welfare fraud, and the difficulty that prosecutors face when they try to put someone from a too-big-to-fail bank in jail for a more serious kind of fraud.

On media coverage of white-collar crime

Over time I think a kind of Stockholm Syndrome develops, it's kind of the same thing that happens with campaign reporters and candidates: You start to sort of sympathize with the people you cover in this weird subterranean, psychological way.

'A Very Sordid Story'

Matt Taibbi On The Fairfax Financial Case

In this audio clip, NPR's Kelly McEvers asks Matt Taibbi about the most salacious case in his book, The Divide. Taibbi tells and the short-sellers who Fairfax alleges took revenge when a deal didn't go through as expected. The company sued in 2006.

Taibbi says it's a great example of the judicial divide between the rich and poor. It's easy to think hedge fund managers can't be criminals, he says, because they're often seen as polite and refined.

"[But] in many cases, they're really not," Taibbi says. "I mean, in this case, they're just as streety and gross as any other kind of criminal."

I think what ends up happening is these stories get written about, but they get written without outrage, or without the right tone, and they are also not written for the right audiences. They're written for Wall Street audiences who want to find out how this lawsuit turned out. They may not want to see those people thrown in jail, they just might be interested in seeing how far the government is willing to go this week in putting white-collar offenders in jail.

On comparing banks and people

The HSBC case was . This is a bank that admitted to washing over $850 million for a pair of Central and South American drug cartels. They admit to this behavior, they pay a fine, no individual has to do a day in jail. All I really wanted to say was, here are our actors at the very top of our illegal narcotics business who are getting a walk from the government, a complete and total walk ...

I went to court that day, I asked around and said, "What's the dumbest drug case you saw today?" I found an attorney who was willing to put me in touch with a number of people who had been busted and thrown in jail for having a joint in their pocket...


Retired Judge Linda Quinn is working with school attorney Dan Shinoff
of Stutz Artiano Shinoff & Holtz on a fundraiser for Judge Lisa Schall.

See all posts re Judge Lisa Schall.

See all posts re Judge Gary Kreep.

Thursday, April 10, 2014

San Diego Unified: From Charter-Friendly to Charter Acquaintance

San Diego Explained: From Charter-Friendly to Charter Acquaintance
By: Catherine Green
Voice of San Diego
March 21, 2014

School board trustee John Lee Evans once called San Diego Unified “one of the most charter-friendly districts in the nation.”

And based on the numbers, he was right: From 2005 to 2012, charter students in the district jumped by about 40 percent

But all that’s about to change, thanks in part to the board’s decision to up the ante on tough requirements for charters to get funding from a $2.8 billion bond they helped get approved in 2012. The district has also been candid about making it harder to open a charter.

In this edition of San Diego Explained, NBC 7′s Catherine Garcia and Voice of San Diego reporter Mario Koran lay out the changing tides for San Diego charter schools.

Update: An earlier version of this post said San Diego Unified was second in the nation for charter school growth. That number came from a National Alliance for Public Charter Schools report. On March 26, the group said it had miscounted, and amended its report. According to the amended numbers, San Diego Unified ranks 18th for growth in charter school enrollment.

Catherine Green is deputy editor at Voice of San Diego. She handles daily operations while helping to plan new long-term projects.


...Doug Porter

Perhaps there have been some problems with charter schools that could have influenced SDUSD policies. I do seem to remember a couple of dozen tearful students and teachers pleading with SDUSD Board of Trustees a couple of weeks ago about conditions at a charter school.

Or perhaps they're cognizant of the schools around the country that have abruptly just gone out of business, leaving families in a lurch.

Or perhaps what's going on is part of broader policy change aimed at increasing the role of neighborhood schools.

We wouldn't know from this story, which just makes it seem like the big bad SDUSD Board is picking on them. (Oh, lookie! Did you see that union thug?)

I actually think charter schools have a role to play. Many of them provide unique and valuable educational experiences.

But come on.... Give us some depth.

Wednesday, April 09, 2014

English 15-year-olds beat peers from the U.S. and every European nation except Finland

English teenagers are among best at solving a practical problems
Nation's 15-year-olds beat peers from the U.S. and every European nation except Finland
By Laura Clark
Apr 1st 2014

English teenagers are among the best in Europe at solving practical problems, a league table revealed yesterday.

The nation’s 15-year-olds came 11th in the world in a new test – ahead of their peers in the United States and all other European countries except Finland.

The results are welcome news following England’s demotion from the top 20 nations in maths and reading. Could you pass the practical test?

However Singapore, South Korea, Japan and Hong Kong, which all have strong academic records, did better.

The rankings, based on a test taken by 85,000 pupils across 44 jurisdictions, show that English teenagers are better at solving real-life problems – such as adjusting a thermostat or selecting the cheapest rail tickets – than they are at tackling academic subjects.

England is one of only a handful of countries where teenagers are better at problem-solving than maths, reading and science.

Boys did slightly better than girls in the test - a reversal of the picture seen in national GCSE exams taken a year later.

Experts said the finding suggested GCSEs may be ‘unfair’ to boys.

The OECD, which produced the league table, insisted the difference in performance between boys and girls was not statistically significant.

The computer-based 40-minute test was the first of its kind run by the OECD, which regularly examines pupils’ performance in richer nations.

Pupils in England scored 517, against an OECD average of 500.

Wales, Northern Ireland and Scotland didn’t take part.

The highest score was achieved by Singapore, with 562.

Outside East Asia, the highest marks were achieved by Canada, Australia and Finland, with England coming 11th.

‘In England, students perform significantly better, on average, in problem solving than students in other countries who show similar performance in mathematics, reading and science,’ the OECD report said.

‘This is particularly true among strong performers in mathematics, which suggests that these students, in particular, have access to learning opportunities that prepare them well for handling complex, real-life problems.’

A Department for Education spokesman said: ‘Our young people are strong in problem-solving. This is a skill we should build on.’

Sunday, April 06, 2014


A student reads at a school in New Jersey. One in four black students were suspended in 2009-10, compared to one in fourteen white students. (AP Photo/Jose F. Moreno.)

Punishing Students For Who They Are, Not What They Do
Chloe Angyal
The Nation
April 17, 2013

Until last month, I had never seen a stop-and-frisk happen. Despite the amount of attention devoted to the controversial New York City policy in the last year, despite the protests, and despite having lived in the city for almost four years, I had never witnessed a stop-and-frisk. And then, a few weeks ago, I watched as two policemen stopped middle-aged black man on 98th Street, and frisked him. I wondered, not for the first time, what it would take for those same policemen to stop and frisk me. Controlling for all other factors—location, time of day, behavior—what would it take for the cops to stop and frisk a pretty white lady on the Upper West Side?

Somewhere in America, there’s a politically aware white high school student asking himself the same question, not about stop-and-frisk, but about school suspension. How much would I have to misbehave to run the same risk of suspension as my black classmates?

If you’re a white middle or high school student, and you don’t have a disability, your odds of being suspended from school are one in fourteen. If you’re a black middle or high school student without a disability, your odds are one in four. According to a new study by the Civil Rights Project at UCLA, a quarter of black students were suspended in the 2009-2010 school year. A quarter. For students with disabilities, the odds are one in five. And for black girls, the numbers are a stark demonstration of what happens when two forms of discrimination intersect: Black girls are more likely to be suspended than black boys or white girls. And, to the surprise of absolutely no one, when you add a third axis—disability—the figures get even worse. Black girls with disabilities are suspended at a rate sixteen percent higher than white girls with disabilities.

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Schools, under-funded and over-populated, are suspending students for minor infractions like cell phone use or loitering (or for violating dress codes, which are problematic for a host of reasons), and being suspended dramatically increases your chance of dropping out altogether. One Florida study found that a single suspension in ninth grade doubled dropout rates, from sixteen percent to thirty-two percent. And though suspension rates are unnecessarily high, they’re disproportionately high for those students who are already marginalized.

There are ways to bring down the number of suspensions across the board, as the study notes. Changes to codes of conduct, implementing positive behavioral supports, better training and supporting teachers, and implementing principles of restorative justice, are all ways to reduce the number of suspensions. But that reduction in raw numbers will not be enough unless schools also address the disproportionate punishment of minority students.

Punishment rates in schools mirror the rates in the “real world” – though what could be more real than entrenched discrimination in our schools? – and in fact, contribute to those real world figures. The Civil Rights Project report notes that the abuse and misuse of suspensions can turn them into “gateways to prison.” Even if that were not the case, even absent a school-to-prison pipeline, the situation would be grim enough. What this report reveals is a disregard for the wellbeing of marginalized populations that, were it directed at other groups, would never be allowed to stand. If a quarter of white middle school boys were being suspended every school year, and if pretty white ladies were being frisked on the streets of Manhattan, there’d be uproar.

What would it take for the police to stop and frisk a pretty white lady on the Upper West Side? What would it take for a school to suspend a young white man with no disability? These are important – if upsetting – thought experiments. But the real question is, what will it take for us to fix this system that punishes students and citizens for no other reason but their membership in marginalized groups?


Research Collaborative Identifies Promising Initiatives To Address

Discipline Gaps by Race, Gender, Disability and Sexual Orientation

WASHINGTON, D.C., March 13, 2014 - A group of 26 nationally recognized experts from the social science, education and legal fields - assembled three years ago with the backing of two large philanthropies - has compiled and analyzed a huge body of recent research that challenges virtually every notion behind the frequent use of disciplinary policies that remove students from the classroom.

The group, known as the Discipline Disparities Research-to-Practice Collaborative, found clear evidence that students of color, particularly African-Americans, and students with disabilities are suspended at hugely disproportionate rates compared to white students, perpetuating racial and educational inequality across the country. LGBT students also are over-represented in suspension.

The Collaborative further determined there is no evidence to support the premise that "bad kids" should be removed from the classroom in order to ensure that "good kids" can learn.

"Far from making our schools safer or improving student behavior, the steadily increasing use of suspension and expulsion puts students - especially students of color and other targeted groups - at an increased risk of academic disengagement, dropout and contact with juvenile justice," said Russell J. Skiba, the Collaborative's project director and a professor at Indiana University.

"And we are never going to close the achievement gap until we close this discipline gap," added Daniel J. Losen, a member of the Collaborative and the director of the Center for Civil Rights Remedies at UCLA. "All schools see a wide range of adolescent misbehavior, but school responses vary dramatically. Some schools see an educational mission in teaching appropriate behavior and are successful at improving behavior without resorting to suspension and expulsion."

Citing data from the U.S. Department of Education, the Collaborative said more than 3 million students in grades K-12 were suspended during the 2009-10 academic year, reflecting a steady rise since the 1970's when the suspension rate was half that level. According to the Collaborative, the increase has occurred because school leaders either are so overwhelmed with money and testing demands that they gravitate toward what they perceive as "easy" discipline solutions, or else they really believe that their school environment will improve if they can just get rid of trouble-makers.

"Discipline has become a management strategy for schools pressured by financial constraints, high concentrations of struggling students, substantial numbers of transient teachers/long-term substitutes and severe accountability mandates," the Collaborative wrote. But there are promising alternatives that when embraced by school leaders and teachers, can effectively reduce both the need for discipline and its disparate effects, the group added.

Prevention programs that build "trusting, supportive relationships between students and educators" can be applied school-wide to reduce the likelihood of conflict. And when misbehavior does occur, it can be addressed through constructive and equitable "restorative justice" policies that reduce unnecessary discipline. These strategies focus on problem-solving instead of just handing out penalties.

"Student accountability is achieved when students take responsibility for their actions, recognize the impact of their actions on others and offer ways to repair the harm," the experts added.

The Discipline Disparities Collaborative was launched in 2011 through The Equity Project at Indiana University with funding from the Atlantic Philanthropies and the Open Society Foundations. The Collaborative has met frequently since then around the country to compile and review recent discipline research. It also is funding other researchers to study unexplored aspects of the school discipline problem.

In releasing its findings, the Collaborative published three briefing papers, each addressed to a different audience: policy recommendations for district, state and federal officials; effective discipline alternatives for school personnel, and a description for researchers of recent studies and urgent, unanswered questions that should be addressed. Among the findings:

There is no research support for the theory that schools must be able to remove the "bad" students so the "good" students can learn. "In fact, when schools serving similar populations were compared, those schools with relatively low suspension rates had higher, not lower, test scores."
Disparities in school suspension are worsening, meaning that some students are being pushed out of school more than others. For example, a study published this year found that three out of every four black middle school boys with disabilities in Chicago had received an out-of-school suspension.
Given the extreme differences in suspension rates across different groups, the researchers concluded that unintended teacher bias is a real possibility. "Several studies indicate ... that racial disparities are not sufficiently explained by the theory that black or other minority students are simply misbehaving more."
New longitudinal studies at the state and national levels indicate that suspension is associated with a heightened risk of dropping out of school. Researchers "found that even being suspended out-of-school once was associated with a two-fold increase in the risk of dropout." The increased risk of dropping out, in turn, increases the risk of juvenile delinquency.
There is a dramatic disconnect between educational and juvenile justice systems. Their practices are, at times, even contradictory. For example, in many communities students who have been expelled are by definition violating juvenile delinquency laws and subject to arrest.
Putting police in schools more often than not leads to the criminalization "of what might otherwise be considered adolescent misbehaviors." The best available evidence "suggests that police presence in schools, particularly armed police, should be a very last resort in school discipline strategies."

In addition to the main briefing papers, the Collaborative today published a set of three supporting papers providing research documentation addressing certain key issues:

A focused review of the evidence does not support the commonly held belief that racial disparities in school discipline are due to more serious or severe behavior on the part of black students.
A review is provided of efforts to explore "implicit bias," the subtle and often unconscious beliefs and stereotypes concerning race and difference that may contribute to disparities in school discipline.
A review is provided of common myths regarding the over-representation of students of color in school discipline and the facts that call these common beliefs into question.

Contact: Norman Black
The Hatcher Group

Friday, April 04, 2014

Stutz v. Larkins post #111: Oral arguments May 16, 2014 and interesting connections between Daniel Shinoff and now-retired Judge Linda Quinn

Retired Judge Linda Quinn is working with Dan Shinoff
of Stutz Artiano Shinoff & Holtz on a fundraiser for
Judge Lisa Schall. Judge Quinn was involved in the
Stutz v. Larkins defamation suit against this blogger. ORAL ARGUMENTS FOR STUTZ V. LARKINS (defamation suit against
this blogger) have been scheduled for Friday May 16, 2014 at 9 a.m.

(See all posts re STUTZ V. LARKINS.)
This is the appeal that will be argued.


I want to be clear that many cases are legitimately transferred to a new judge for proper reasons and in an appropriate manner. The proper manner is to send the case back "to the wheel". The new judge is chosen randomly, as if the clerk were spinning a roulette wheel. In fact, I have never heard of any other pair of judges doing what Quinn and Hayes were allowed to do. These two judges shared cases like kindergarten teachers share art projects.

I have never heard of any other pair of judges doing what Quinn and Hayes were allowed to do. These two judges shared cases like kindergarten teachers share art projects. But perhaps court executive Michael Roddy permitted other such partnerships. But if the San Diego Superior Court wanted to set up such a system, why not be up front about it? Why not just openly assign a case to TWO JUDGES?

There is a lot of collegiality among judges. Too much, in my opinion.

But I'm not saying that when a new judge takes the same approach to a case as an earlier judge that there was an improper transfer of the case. In fact, in almost all cases the new judge takes the same approach as the earlier judge.

I assume some cases that were properly and randomly transferred from Judge Quinn to Judge Hayes, or vis versa. I am not talking about those cases. I'm talking about a unique and abusive policy that was permitted by Michael Roddy that violated court policies and the impartial administration of justice.

When I started getting absurd rulings from Judge Hayes, I suspected that something peculiar was going on.

Then one day I was sitting in Judge Hayes' courtroom when a large group of people were waiting for a considerable length of time for the judge to appear. Conversations started. The bailiff got to talking with those of us seated in the gallery. He got particularly involved in a conversation with a lawyer who was sitting right in front of him in the first row of the gallery. Their conversation, which I could hear clearly, turned to the transfer of cases between Hayes and Quinn.

The bailiff explained that the two judges directly transferred "overflow cases" to each other.

Michael Roddy wrote that there was "nothing improper" when a court clerk defaulted an appeal in the Stutz v. Larkins case by perpetrating an obvious hoax. She defaulted my appeal because she claimed that three hearing dates that I had included in my Designation of Record were incorrect. I brought in the transcripts from those dates to prove that the dates were correct. Here is the conversation I had with the clerk. It was obvious that she had been ordered to create a false document in order to default my appeal. Somebody with lots of sway had clearly requested that the clerks mishandle my appeal. It was a foolish request, of course, as well as being criminal. Mr. Roddy was unapologetic and unconcerned.

Ironically, Michael Roddy has served (and is possibly still serving) on California's Commission for Impartial Courts Steering Committee.

I understand that it is natural for human beings in charge of institutions everywhere to keeps things running smoothly by bending the rules. Seriously, though. We may need to tolerate a bit of corruption, but do we really want to have such foolish people controlling justice in San Diego? Do all the lawyers feel they have to keep silent to keep the money flowing to them? Isn't there a limit to what the Bar Association will put up with?

It seems that loyalty to the peer group is a stronger human trait than loyalty to the society as a whole. Afterall, judges are former members of the Bar Association.

Would it help if we paid them more? Would people like Hayes and Quinn behave better if their salaries were higher?

And what about Michael Roddy? He makes more than his judges do. But I suspect he feels that he'd lose that income if he quit being a judge's helper when a finger needs to be pressed on the scales of justice. So I think we can't really expect him to be the one to change things.

Fairbanks Ranch Association, the "private residence"
for the Shinoff-Quinn fundraiser

Fundraiser for Judge Lisa Schall


Recently Dan Shinoff and now-retired Judge Linda Quinn decided to work together to organize a fundraiser for Judge Lisa Schall, who is being challenged by prosecutor Carla Keehn:

Link: Private Residence
« The Lion's Club (Gate 6 Guest List Checkin REQUIRED)
Date: April 29, 2014
Time: 5:00 PM - 7:00 PM
Event Category: Appearances
Hon. Susan Huguenor, retired, Hon. Linda Quinn, retired, Mr. Daniel Shinoff, Esq. and Mr. Douglas Brust, Esq.

For years I've been wondering how Judge Judith Hayes came to be the replacement judge in Stutz v. Larkins. (See all posts for Stutz v. Larkins.) The case was originally assigned to Dan Shinoff's apparent pal Judge Linda Quinn.

Judge Quinn did Dan Shinoff's law firm a remarkable favor in 2008 by improperly passing the case to Judge Judith Hayes, who eagerly violated the Constitution and other codes in a failed effort to silence this blogger. But Stutz law firm wasn't the only beneficiary of an unusual and improper arrangement between Judge Quinn and Judge Judith Hayes. As one bailiff described it, Judge Hayes and Judge Quinn had a habit of passing "overflow" cases to each other.


Here's my letter to Mr. Roddy. His response can be found at the bottom of this page.

October 23, 2012
Michael Roddy, Executive Officer
Stephen Cascioppo, Assistant Executive Officer, Central Division
220 West Broadway, Third Floor
San Diego, CA 92101

Dear Executives of San Diego Superior Court:

Following is not necessarily word-for-word accurate, but all the ideas expressed are accurate. Not every word spoken is recorded here, but this transcript contains about 80% of what was spoken. Some parts were repeated.

I spoke to deputy clerk XXX in the Appeals Section on October 22, 2012 about the fact that all three of the dates she used to justify Defaulting my Appeal were, in fact, dates on which hearings had occurred.

Ms. XXX went to her computer and checked all three dates, then came back to me and said, “There were no minute orders on those dates.”

“Were there hearings on those dates?” I asked.

Instead of answering this question, she repeated a couple more times that there were no minute orders on those dates.

“What if the judge took the matter under submission?” I asked. “There wouldn’t be any minute order, even though there had been a hearing.”

Ms. XXX told me that her computer does not show whether a hearing has occurred—unless there was a minute order!!!!

I showed Ms. XXX two Reporter’s Transcript cover sheets for my 2010 appeal in the same case. I had drawn circles around the three dates in question. Ms. XXX made copies of the two cover sheets, and said that this cleared up the problem.

I said, “No, it doesn’t. The fact that this happened is a problem. Someone told you to do this, didn’t they?” She said that no one had told her to do it.

I said, “You’re going to take the fall for this?” I said I didn’t believe she could have made three mistakes like this, and she didn’t have any motive to sabotage my appeal.

When she went to her desk, her supervisor ZZZ came up to her and told her she should leave. Then she said, “It’s your break. I’ ll take care of it.”

Then they both came over to where I was sitting, and XXX explained the situation to ZZZ.

ZZZ said to XXX, “Did you look it up on the V3 system?”

XXX said she did. I said, “So the name of the system you use is V3?

ZZZ waved her hand dismissively, ending the gesture with her palm stationary in front of my face, and said, “It’s nothing for you to worry about.”

I requested that she not stick her hand in my face and asked, “Do you not want me to have information about what system you use?”

ZZZ said she didn’t mind giving me the information, and said that V3 was the system used by the Court.

“Does it show when a hearing has occurred?” I asked.

“Yes,” ZZZ said.

“That’s interesting. XXX said that it didn’t,” I said.

ZZZ: “No, it doesn’t show hearings. It shows the minute orders. The minute orders are printed on yellow paper and placed in the file.”

Maura: “So there’s no record on your computer of hearings at which no minute order was issued?”

ZZZ said, “Well, yes, there’s a little one line notation showing that there was a hearing.” She held up her two index fingers, a short distance apart, to show how small the notation was, apparently to demonstrate how easily it could be overlooked.

I said, “Someone must have told XXX to do this. Was it you?”

ZZZ said, “No.”

ZZZ turned to XXX and told her to leave.

XXX was obviously uncomfortable to be asked to leave. It was clearly not her normal break time. I happen to know that clerks sometimes take their breaks at their desks, so it was not necessary for XXX to leave even if it actually had been her break time. XXX did not feel good to be told to leave; her facial expression and body movements revealed that she was unhappy and anxious.

I interpreted the order to leave as ZZZ’s effort to prevent XXX from revealing that ZZZ had told her to create the Notice of Default. This was quite paranoid of ZZZ, since XXX was absolutely steadfast in sticking to the story that the Notice of Default was entirely her own idea.

I asked to speak to Ms. ZZZZ’s supervisor, but Ms. ZZZZ said the supervisor had her door closed and was in a meeting.

I gave ZZZ my 1-page letter with three attachments, addressed to Mr. Roddy, Mr. Cascioppo, and XXXX, and she stamped it received and stamped my copy. I went to Michael Roddy’s office, but it was closed for lunch. I went back and asked ZZZ to put another copy in Mr. Roddy’s mail box. I saw her put the letter in a mail box on the west wall.

It’s worse to force a young, vulnerable person to subvert justice than it is to simply subvert justice oneself. And whoever pressured ZZZ was worse than ZZZ.


Maura Larkins

Thursday, April 03, 2014

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact

Supreme Court Justices, from left, Chief Justice of the United States John Roberts, Associate Justices of the Supreme Court Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan applaud State of the Union Address,12 Feb 2013 (Rex Features via AP Images)

A Blistering Dissent in ‘McCutcheon’: Conservatives Substituted Opinion for Fact
Moyers and Company
April 2, 2014

Central to the Supreme Court’s campaign finance decisions in the John Roberts era is that the government’s only legitimate interest in this area is preventing direct, quid pro quo corruption — a donor demanding that a specific law be passed, or killed, in exchange for cash — or the appearance of direct corruption.

In the McCutcheon decision announced on Wednesday, the court struck down a limit on how much cash an individual could give to all federal candidates during an election cycle. The five conservative justices allowed that the rich showering friendly candidates with unlimited amounts of money might drown out the voices of the majority and distort our fragile democracy, but not blatantly enough to justify the spending limit.

In the majority opinion, Chief Justice Roberts wrote that “government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.”

The conservative majority passed on an opportunity to strike down a limit on how much a donor can give to an individual candidate — perhaps because in Citizens United, they’d accepted the proposition that unlimited donations to “independent” third party groups didn’t lend the appearance of corruption — but Justice Clarence Thomas, in his concurring opinion, wrote that “limiting the amount of money a person may give to a candidate does impose a direct restraint on his political communication,” and moved to strike that provision down as well.

The court’s four-member minority issued a blistering dissent, written by Justice Stephen Breyer. He charged that the majority’s “conclusion rests upon its own, not a record-based, view of the facts.”

Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.

Taken together with Citizens United, Breyer writes that McCutcheon “eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.”

He goes on to dissect the claims on which the court’s ruling rest. He first takes issue with the idea that the government only has an interest in preventing a direct exchange of cash for votes.

In the plurality’s view, a federal statute could not prevent an individual from writing a million dollar check to a political party (by donating to its various committees), because the rationale for any limit would “dangerously broade[n] the circumscribed definition of quid pro quo corruption articulated in our prior cases.”

This critically important definition of “corruption” is inconsistent with the Court’s prior case … and it misunderstands the constitutional importance of the interests at stake. In fact, constitutional interests—indeed, First Amendment interests—lie on both sides of the legal equation.

In reality, as the history of campaign finance reform shows and as our earlier cases on the subject have recognized, the anticorruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest than the plurality acknowledges. It is an interest in maintaining the integrity of our public governmental institutions. And it is an interest rooted in the Constitution and in the First Amendment itself.

Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives….

The First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.

What has this to do with corruption? It has everything to do with corruption. Corruption breaks the constitution­ally necessary “chain of communication” between the people and their representatives. It derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point. That is one reason why the Court has stressed the constitutional importance of Congress’ concern that a few large donations not drown out the voices of the many….

The “appearance of corruption” can make matters worse. It can lead the public to believe that its efforts to communicate with its representatives or to help sway public opinion have little purpose. And a cynical public can lose interest in political participation altogether.

Breyer then wonders how the conservatives could square McCutcheon’s narrow definition of “corruption” with its conclusion, in the 2003 case McConnell v. FEC, that money — and the access it purchases — has a pernicious influence on the political process.

The Court in McConnell upheld these new contribution restrictions under the First Amendment for the very reason the plurality today discounts or ignores. Namely, the Court found they thwarted a significant risk of corruption—understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.

In reaching its conclusion in McConnell, the Court relied upon a vast record compiled in the District Court. That record consisted of over 100,000 pages of material and included testimony from more than 200 witnesses. What it showed, in detail, was the web of relationships and understandings among parties, candidates, and large donors that underlies privileged access and influence. The District Judges in McConnell made clear that the record did “not contain any evidence of bribery or vote buying in exchange for donations of nonfederal money.”

Indeed, no one had identified a “single discrete instance of quid pro quo corruption” due to soft money. But what the record did demonstrate was that enormous soft money contributions, ranging between $1 million and $5 million among the largest donors, enabled wealthy contributors to gain disproportionate “access to federal lawmakers” and the ability to “influenc[e] legislation.”

“We specifically rejected efforts to define ‘corruption’ in ways similar to those the plurality today accepts,” writes Breyer.

He then takes on the conservatives’ second rationale: that the problem the aggregate limit was supposed to address — huge donors funneling money indirectly to a candidate in order to get around the limit on contributions to a single campaign — isn’t an issue today.

The plurality is wrong…. In the absence of limits on aggregate political contributions, donors can and likely will find ways to channel millions of dollars to parties and to individual candidates, producing precisely the kind of “corruption” or “appearance of corruption” that previously led the Court to hold aggregate limits constitutional. Those opportunities for circumvention will also produce the type of corruption that concerns the plurality today. The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers.

He offers three concrete examples of how a wealthy donor might be able to get millions of dollars to a single candidate without running afoul of the law under McCutcheon.

But perhaps the dissent’s most withering criticism of the ruling is that, as in Citizens United, it was decided according to the majority’s beliefs, rather than the factual record.

In the past, when evaluating the constitutionality of campaign finance restrictions, we have typically relied upon an evidentiary record amassed below to determine whether the law served a compelling governmental objec­tive. And, typically, that record contained testimony from Members of Congress (or state legislators) explaining why Congress (or the legislature) acted as it did….

If we are to overturn an act of Congress here, we should do so on the basis of a similar record….

Determining whether anticorruption objectives justify a particular set of contribution limits requires answering empirically based questions, and applying significant discretion and judgment. To what ex­tent will unrestricted giving lead to corruption or its appearance? What forms will any such corruption take? To what extent will a lack of regulation undermine public confidence in the democratic system? To what extent can regulation restore it?

… For another thing, a comparison of the plurality’s opinion with this dissent reveals important differences of opinion on fact-related matters. We disagree, for example, on the possibilities for circumvention of the base limits in the absence of aggregate limits. We disagree about how effectively the plurality’s “alternatives” could prevent evasion. An evidentiary proceeding would permit the parties to explore these matters, and it would permit the courts to reach a more accurate judgment. The plurality rationalizes its haste to forgo an evidentiary record by noting that “the parties have treated the question as a purely legal one.” But without a doubt, the legal question—whether the aggregate limits are closely drawn to further a compelling governmental interest—turns on factual questions about whether corruption, in the absence of such limits, is a realistic threat to our democracy….

The justification for aggregate contribution restrictions is strongly rooted in the need to assure political integrity and ultimately in the First Amendment itself. The threat to that integrity posed by the risk of special access and influence remains real. Part III, supra. Even taking the plurality on its own terms and considering solely the threat of quid pro quo corruption (i.e., money-for-votes exchanges), the aggregate limits are a necessary tool to stop circumvention. And there is no basis for finding a lack of “fit” between the threat and the means used to combat it, namely the aggregate limits.

The plurality reaches the opposite conclusion. The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

Tuesday, April 01, 2014

Should schools fire school employees who are found groping each other after hours?

These parents are worried about something important:
teachers sexually abusing students. Sadly, schools
often worry more about relationships between adult employees.

The story below of two female teachers in New York reminded me of a similar event at Chula Vista Elementary School District a few years ago. The two stories developed in dramatically different manners. While the two lesbian teachers in New York were fired, the principal in Chula Vista was given a good-paying job at the district office.

The important factor in my view is that both events took place after hours and no students were present. I'd urge schools to spend more time observing teachers and principals during school hours, and less time worrying about what they do after hours. I'd also urge schools to be more vigilant about employees who are sexually abusing students.

High school teachers fired for half-naked lesbian classroom tryst get their jobs back
The Daily Caller
March 22, 2014

Rest easy, America, because a state appeals court has ruled that New York City’s Department of Education had no right to fire two female foreign language instructors at Brooklyn’s James Madison High School for getting busy in a classroom one steamy night way back in 2009.

In a decision handed down on Thursday, the appellate judges concluded that the teachers’ behavior “demonstrated a lapse in judgment” but was just “a one-time mistake,” reports CBS New York.

The instructors involved in the raunchy rendezvous are Spanish teacher Alina Brito, 34, and French teacher Cindy Mauro, 38.

Investigators say they had returned to school to see a student musical performance after going out for dinner and a few shots together, explains the New York Daily News.

At some point, they stole away to a dimly lit Room 337 at James Madison High for a quick romp. Specifically, the investigation alleges, one of the teachers was stripped from the waist up. The other one was down on her knees.

An unidentified janitor who had no appreciation for live teacher-on-teacher classroom action caught the couple in the act and made a report to school officials.

After spending time in New York City’s infamous teacher rubber rooms, Brito and Mauro were fired in January 2011.

The teachers defended their actions by saying that Brito, a diabetic, needed candy for her blood sugar. However, nobody – not even the appellate judges – appeared to buy this version of events.

At the same time, the five-judge panel observed that both teachers had otherwise exemplary records and, consequently, a half-naked, consensual lesbian groping session in a classroom did not merit termination.

Calling termination “shockingly disproportionate,” the appeals court remanded the case to city education officials for a more lenient punishment.

Obviously, Brito and Mauro are pleased with the outcome.

“My clients will be happy to be back in the classroom doing a job they love,” attorney Michael Valentine told the Daily News.

“They were both good at what they did,” Valentine added.

It’s not clear if Brito and Mauro will now actually seek to have their jobs reinstated. However, Valentine said, they will definitely seek back pay.

City education officials are mulling an appeal.

“We are disappointed with the decision and are considering our options,” Education Department spokesman David Pena told the Daily News.

Saturday, March 29, 2014

Dan Shinoff applauds ruling allowing school officials to keep private their emails discussing public business

Dan Shinoff of Stutz Artiano Shinoff & Holtz

(Updated) School attorney Dan Shinoff, who is known for working hard to keep secret the actions of school officials, is pleased that the California Court of Appeal took a step toward protecting records of public officials who discuss public business using their private email accounts.

Attorney James McManis isn't so pleased: "When you think about it -- it's just nuts. If they can hide stuff by using their private devices, that's no way to run a railroad."

So exactly how easy is it going to be from now on to hide public business from the public?

Do all public documents become private when they are placed in the possession of private individuals?

In my case, Maura Larkins v. Richard Werlin, Mr. Shinoff made copies of documents created by employees at Chula Vista Elementary School District, and then told those employees to keep the originals in their homes. Later Mr. Shinoff and his partner Ray Artiano said in a deposition that the records couldn't be found at their law office. Since Mr. Shinoff represents 40 of the 42 districts in San Diego County, I'm guessing that there are a lot of public documents stashed away in private homes in the county. This makes me wonder if Mr. Shinoff is keeping evidence from my case squirreled away at his house.

In the City of San Jose emails decision the Court of Appeal followed the logic that if a document is not in the possession of the public entity, then it isn't a public document as far as the California Public Records Act is concerned.

These shredded documents survived a burning spree
in a parking lot at San Ysidro School District

Apparently, a document can be switched at will from public to private. So why is the FBI investigating Manuel Paul of San Ysidro School District for burning documents?

Perhaps public officials aren't off the hook quite yet. An agency may not have to turn over documents that have been converted from public to private, but the court has NOT found that the act of conversion itself is legal. Obviously, it would be extremely difficult to turn over a document that had been incinerated. (Manuel Paul was a client of Dan Shinoff (below), who applauded the Court of Appeal decision.)

I certainly agree that it is burdensome for public agencies to search for public records in someone's private email account. So why do those agencies allow officials and employees to use personal accounts for public business? Apparently, they want to continue certain dealings that they don't want the public to know about.

We clearly need a law forbidding public servants from using private email for public business and from using private storage for public records. Until then, I expect that ethically questionable transactions will take place through private email--and there won't be much reason to request public emails since the important information won't be there. The California Public Records Act won't be worth much.

San Jose court: Government workers can keep messages from personal devices private
By Mike Rosenberg
Mercury News

SAN JOSE -- In a decision that draws a line on public access to government records, an appeals court ruled Thursday that government workers in San Jose and beyond can keep their communications private if they send them on a personal device like a cell phone.

The Sixth District Court of Appeal decision directly affects South Bay counties and sets legal precedent in California that could influence judges in other parts of the state, although the issue is likely to remain unsettled until the California Supreme Court weighs in.

Last year, open records advocates had defeated San Jose City Hall in the lower courts in a case over whether the city's 5,500 workers had to make public messages sent on their private devices. Typically, for instance, emails sent or received on a city's system would be subject to disclosure under the California Public Records Act. But it was not clear whether the same employee could keep a government-related message sent from a personal Gmail account private.

Media groups and open government activists argued officials could skirt the spirit of the landmark 1968 Public Records Act by texting, calling or emailing about government business with their personal devices. But city officials, aided in court by the California League of Cities, said they have no control over the employees' personal accounts and it would be costly and unwieldy to compile the records.

The city emerged victorious Thursday in the 6th District following a hearing in San Jose earlier this month. In a 3-0 ruling, justices Franklin Elia, Conrad Rushing and Eugene Premo said it should be up to the California Legislature to determine which records are public -- not the courts.

The decision reversed a March 2013 ruling from a Santa Clara County Superior Court judge who said "a public agency could easily shield information from public disclosure simply by storing it on equipment it does not technically own."

But James McManis -- the attorney for activist Ted Smith, who first sued to get access to the records -- said "they haven't heard the last from us." His group will petition the state's highest court for a final review, but it's up to California Supreme Court justices to decide whether to accept the case.

"When you think about it -- it's just nuts," McManis said. "If they can hide stuff by using their private devices, that's no way to run a railroad."

City Attorney Rick Doyle said the California records law, passed in an age well before texting or email, "never contemplated" that private devices would be subject to records requests.

"These aren't retained or held by the public agency and individuals aren't the public agencies," Doyle said. "They may work for the public agency, but it's not the same thing."

Doyle said San Jose has among the best sunshine ordinances in the state. Ironically, he noted, the city in 2010 approved a policy that makes messages about public business sent on private devices public, but it only applies to the City Council and their staff. But even then, the rule is tough to enforce.

"They're on the honor system on that," Doyle said. "They're supposed to turn (the records) over."

San Diego school attorney Dan Shinoff, who represents 40 of the county's 42 school districts, applauded the judge's ruling: “It's my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications."

Ruling favors secret Gmail for officials
Appeal court says cities can't be required to disclose personal accounts
By Ashly McGlone
March 28, 2014

A court ruling out of San Jose involving emails of public officials could have implications in San Diego and across the state.

A three-judge appeals panel struck down a March 2013 decision by Santa Clara County Superior Court Judge James P. Kleinberg, who had found that the emails and texts of public officials using their personal accounts or devices become public records if they are discussing government business.

“Politicians read into the law what they want to read into the law in order to keep their secrets secret,” said San Diego attorney Cory Briggs, who has filed a similar lawsuit here. “Gmail is going to get a lot busier with politicians’ communications in light of this ruling. Good day to buy stock in Google, and it’s a sad day for open government and democracy.”

The ruling reversed Kleinberg’s order for the City of San Jose to turn certain messages over to resident Ted Smith, who sought them in a public records request.

The appeals court found that a public official’s Gmail or Yahoo account is not in possession of the city, and therefore can’t be considered public.

“Any control the city has over its employees' behavior is not equivalent to control over, or even access to, the text messages and e-mail sent to and from its employees' private devices and accounts,” Associate Justice Franklin D. Elia wrote. “That city council members may conceal their communications on public issues by sending and receiving them on their private devices from private accounts is a serious concern; but such conduct is for our lawmakers to deter with appropriate legislation.”

San Jose City Attorney Rick Doyle said of the victory, “I think the court recognizes privacy interests of individuals, including public officials,” adding that the earlier ruling “was too broad and the Legislature hasn’t gone there yet.”

“It’s the reality of technology getting beyond what the law is,” said Doyle, who has served as city attorney for more than 14 years. “Judge Kleinberg was equating ‘you are a public official,’ ‘you are the city’ and that’s just not true.”

Attorney Dan Shinoff, who represents 40 of the county’s 42 school districts, applauded the judge’s ruling.

“It’s my opinion that the Court of Appeal correctly recognized that the reach of the California Public Records Act is limited by the Legislature to records kept by the agency and not private communications,” Shinoff said.

Members of the plaintiff’s legal team said they would seek a review from the state Supreme Court in hopes of appealing the decision that Attorney James McManis calls “dead wrong.”

“We are supposed to have transparency and this is prompting secrecy,” McManis said. “Now they have the green light to put this stuff on private devices with the comfort that no one is ever going to find out.”

“They are supposed to be serving the people and are not supposed to be conducting business behind closed doors and emails.” McManis said, “If they don’t want people looking at their emails then they shouldn’t use private emails. That’s a real simple choice for them to make.”

State public records law says in part, “‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”

Donna Frye, president of the nonprofit Californians Aware and a former San Diego city councilwoman, said the ruling doesn’t comport with a plain reading of state public records law and opens the door to additional legal problems.

“They can essentially conduct full meetings in full view of the public. They can sit up there and form collective concurrences and violate not only the Public Records Act, but the Brown Act,” Frye said. “Just because technology allows people to communicate in different ways, it doesn’t mean the intention about what is a public record has changed… I hope the Legislature will act so that it’s statewide, so that it doesn’t have to be done on a city-by-city or county-by-county basis.”

In the meantime though, Frye’s group is still working with San Diego council members David Alvarez and Marti Emerald to get a city charter amendment onto the November ballot that would require city officials to copy a city email on city-related communications sent from a personal account, require emails to be kept for two years and deem certain records of city contractors public.

The Court of Appeal ruling may buttress the position the city of San Diego has taken in two lawsuits by Briggs seeking personal emails of public officials discussing government business. The City Attorney’s Office has taken the position that the emails are not public. Officials there declined to comment on the ruling. A hearing is scheduled for April 11.


Rex Smith · Top Commenter · College of William and Mary
Has anyone looked into how much Money Cory Briggs is making off of this? Lawyers never do anything for free. There is an angle he is playing here.

Ricky Young· Watchdog Editor at U-T San Diego
The city attorney has been making this point of late. He said this in a news release this evening on another case: “No one wanted to challenge them other than Mr. Briggs, who was in search of recovering attorney fees from the City should he be successful. He hasn't been successful in very many cases, including this one. This is a win for taxpayers.”

Maura Larkins · Top Commenter · UCLA
It's a win for taxpayers only in the short term. The dealings that will remain hidden may cost the taxpayers far more than attorney fees for Cory Briggs.

It's wrong to say that "no one wanted to challenge them other than Cory Briggs." It would be more correct to say that no one else had the courage and resources to take action. Your own survey posted above shows that a large majority of the people responding wanted emails about public business to be available to the public. You asked, "Should officials' emails on personal accounts be public records if they discuss government business?" The results were 65% voting YES to 34% voting NO with 308 people voting as of March 30, 2014.

Rex Smith · Top Commenter · College of William and Mary
Maura: The online poll is not scientific. Far from it. Clear your cookies and vote as many times as you like.

Maura Larkins · Top Commenter · UCLA
Rex Smith You are correct. Do you think that most people want public servants' emails about public business to be secret?

Rex Smith · Top Commenter · College of William and Mary
Maura: No. But I also don't believe in gold at the end of a rainbow. In other words if you want access to their private emails they will just go back to face to face meetings or phone calls.

Maura Larkins · Top Commenter · UCLA
Rex Smith That would be fine. But the law says that if they create a document, then the public has a right to see it. I'm sure that public servants do all sorts of sneaky stuff, but that's no reason to allow private email accounts to be used for the specific purpose of evading the law. There is no excuse for using private emails for public business unless we're all going to accept that public servants should be able to keep secret how they conduct the public's business.

"If you reward bad behavior, you will get more of it." Joel Anderson, Alpine, CA.

If Cory Briggs had lived in Bell, CA, the taxpayers would probably be a lot better off than they are now.

See related post at Role Model Lawyers blog.

Update Mar. 31, 2014: "We are not hiding anything."

I couldn't help thinking of the public agencies in California whose officials and employees use private emails to conduct business when I saw another story about authorities who don't want to release information--but insist that they're not trying to hide information from the public.

Perhaps the Malaysian government gave a wrong quote because one of their lawyers took the recording--and the transcript--home for safe keeping. I think the philosophy might be pretty much the same in both places: keep the truth secret because it might contradict the story we come up with.

MH370: New last words from cockpit: 'Good night Malaysian three seven zero'
By Catherine E. Shoichet, Faith Karimi and KJ Kwon, CNN
March 31, 2014
Source: CNN

They were words heard around the world as investigators searched for the missing Malaysia Airlines plane.

Weeks ago, Malaysian authorities said the last message from the airplane cockpit was, "All right, good night."

The sign-off to air traffic controllers, which investigators said was spoken by the plane's copilot, was among the few concrete details officials released in a mystery that's baffled investigators and drawn global attention since the Boeing 777 disappeared with 239 people aboard mid-flight on March 8.

There's only one problem. It turns out, it wasn't true.

On Monday, Malaysia's Transport Ministry said the final voice transmission from the cockpit of Flight 370 was actually "Good night Malaysian three seven zero."

And authorities are still trying to determine whether it was the plane's pilot or copilot who said them.

The new language is routine and is not a sign that anything untoward occurred aboard the flight, said CNN aviation analyst Mary Schiavo.

But the change in wording weeks into the search for the missing plane raises questions about how Malaysian officials have handled the investigation.

"It speaks to credibility issues, unfortunately," Schiavo said.

"We haven't had a straight, clear word that we can have a lot of fidelity in," said Michael Goldfarb, former chief of staff at the U.S. Federal Aviation Administration. "We have the tragedy of the crash, we have the tragedy of an investigation gone awry and then we have questions about where we go from here."

No matter what the pilots' last words were, it's hard to understand what they mean without more details from authorities about what they said and how they said it, CNN aviation analyst Miles O'Brien told "The Lead with Jake Tapper" on Monday.

"Without the preceding information ... either the transcript or the recordings themselves, it's difficult to know what any of that really means," he said. "And that's the problem with this investigation, which has been so opaque."

Malaysian authorities have defended their handling of the situation.

Acting Transportation Minister Hishammuddin Hussein said Monday that authorities were not hiding anything by declining to release some details of the missing flight. Some details are part of ongoing investigations into what happened to the plane, he said.

"We are not hiding anything," he said. "We are just following the procedure that is being set."...

A culture of silence?? The following article talks about "corporate culture". But I think we're talking about human nature. Reflexive dishonesty seems to be rampant. GM will pay, but I doubt that it will significantly change its corporate culture. Consumers will continue to be in danger.

Why did GM take so long to respond to deadly defect? Corporate culture may hold answer.
By Michael A. Fletcher and Steven Mufson
Washington Post
March 30,2014

The part costs less than $10 wholesale. The fix takes less than an hour. A mechanic removes a few screws and connectors, takes off a plastic shroud, pops in the new switch, and the customer is back on the road.

It’s relatively cheap and easy to replace the flawed ignition switch that has been blamed for at least 13 deaths, including a fatal June 2013 crash in Quebec newly linked to the defect. Yet General Motors waited more than a decade before recalling 2.6 million Chevrolet Cobalts and other small cars.

GM’s failure to alert customers sooner could end up costing the automaker hundreds of millions of dollars in fines and much more in reputational damage. It has already cost the lives of the drivers, who perished at least in part because the faulty switches suddenly shut off their cars, stiffening brakes and power steering and disabling air bags.

With so much at stake, why didn’t GM act sooner?

The answer, according to many people familiar with the automaker, is a corporate culture reluctant to pass along bad news...