Friday, May 22, 2009

Judge delays Hartnett decision even though SDCOE's Superintendent Randy Ward admitted there was no investigation

To see all Rodger Hartnett v. SDCOE posts, click HERE.
See also Michelle Fort-Merrill story in Voice of San Diego.

It really should be a simple concept, but San Diego County Office of Education Superintendent Randolph Ward doesn't get it: employers should investigate before they fire employees who are whistle-blowers. Randy Ward protested in March 2009, when Hartnett won the right to reinstatement, that "in all cases, the hearing is the investigation." But serious wrongdoing isn't alleged in all cases, is it, Mr. Ward?

The necessity of investigating serious allegations is great, particularly since the hearings generally result in putting a rubber-stamp on whatever decision the public agency wants. The hearing is most certainly NOT an investigation. Virtually all hearing officers assume that public agencies behave lawfully. Randy Ward should have investigated this accusation, as well as other serious accusations that have been made.

Voice of San Diego reports: " he "discovered and reported a culture of corruption within my department involving conflicts of interest and interpersonal relationships" that led to legal business being sent to friends and spouses of employees. He alleges that [Michelle] Fort-Merrill orchestrated his firing "because I had further discovered, exposed and reported what I reasonably believed to be conflicts of interest in her husband [Woody Merrill] acting as general counsel."

Furthermore, it would hardly have been proper for SDCOE to investigate itself, Mr. Ward. You should have brought in outside investigators. But it's not too late. You can still do that.

Somehow Randy Ward's lawyer Steven Cologne has convinced a judge to delay his own tentative decision to deny Randy Ward a new trial.

Cologne argued that the court can find that SDCOE actually did do an investigation if the court simply reconsiders what the meaning of "is" is. No, wait a minute. Cologne wants the court to reconsider what the meaning of "investigation" is, after his client already publicly admitted that he didn't do an investigation.

It is very unusual for a judge to delay his decision. Maybe Judge Denton will change his mind and grant a new trial. A new trial might be interesting. At any rate, Denton has shown more courage than most judges in demanding that SDCOE follow the law. It's no surprise that so few judges have courage. They fear they'll be targeted by powerful interests at election time if they demand that public officals obey the law.

Here is Voice of San Diego's update on the situation:

Judge Delays Decision in Hartnett Case

Superior Court Judge Steven Denton held off ruling today whether the San Diego County Office of Education can get a new trial in the case of Rodger Hartnett, a former employee who alleges he was fired for blowing the whistle on conflicts of interest in the agency. (Check out this article for more information on the allegations.) Denton had issued a tentative ruling yesterday that would have denied a new trial to the office, which would have been a win for Hartnett.

In March, Denton ruled that Hartnett was entitled to his job and back pay because the county office had failed to properly investigate his claims. But today attorney Steven Cologne, who represents the county office, convinced the judge to give the issue more consideration before issuing his final ruling.

"This court has concluded for some reason that it was not a proper investigation," Cologne said, adding, "That is not my burden, it's [Hartnett's] burden." He argued that Denton needed to hear more evidence about how the office checked Hartnett's claims before ruling that no investigation was done. He also questioned the legal definition of "investigation."

Barry Vrevich, who represents Hartnett, countered that the office had to prove it had done an investigation, rather than forcing Hartnett to prove it had not. "What constitutes an investigation is a matter of common sense," Vrevich said, adding that it would include interviewing witnesses and reviewing documents. He added, "There has been no showing in opposition that an investigation was performed."

Denton did not name a date when he would make a final decision.


Friday, May 22, 2009


Judge Denies New Trial in Hartnett Case
Voice of San Diego
May 22, 2009

A Superior Court judge has tentatively denied a push by the San Diego County Office of Education for a new trial in the case of Rodger Hartnett, a former employee who claims he was wrongfully fired for blowing the whistle on conflicts of interest in the agency.

The same judge, Steven Denton, had earlier ruled that Hartnett was entitled to his job and back pay because the agency had failed to properly investigate his claims. The COE pushed to vacate that ruling or get a new trial. Denton disagreed with its arguments that requiring both a hearing and an investigation for Hartnett would be "absurd."

[Maura Larkins' comment: SDCOE should never have asked for a hearing until it had done a thorough investigation. Judge Denton is dealing with powerful interests here. I hope he continues to insist that Randy Ward but obey the law. This will take the kind of courage with which Supreme Court nominee Sonia Sotomayor is credited: "As a trial judge, she earned a reputation as a sharp and fearless jurist who does not let powerful interests bully her into departing from the rule of law." (from]

The matter goes before the court this morning. Check back for details on how the County Office is responding and whether Hartnett will be reinstated.

No comments: