“You’re not supposed to be able to take board members’ depositions,” Church [Ryan Church, an attorney with Stutz Artiano Shinoff & Holtz] said.
But the court did not agree.
Depositions allowed in lawsuit against Del Mar school district
By Marsha Sutton
Del Mar Times
September 29m 2011
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 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.