Thursday, January 26, 2012

A whole lot of lawsuits in Jurupa Unified School District in Riverside

January 25, 2012
Subject: Ermine Nelson: PERB Case No. LA-CE-5517-E

I attended yesterday’s PERB hearing for Ms. Ermine Nelson [PERB Case No. LA-CE-5517-E].

The hearing went very well from my perspective. What was alarming, however, is what was testified to about the absolute inaction and ignorance of the leadership of the employee unions’ representatives within the Jurupa Unified School District. Based on the fact that I contacted union leadership for the NEAJ and CSEA before then, I can only assume that the disregard of what the District is doing is intentional or you are being union-busted by the District and don’t even know it.

Under Government Code §§ 3540-3543 and related provisions of law, the District had an absolute duty to send any grievances, however old or new, merit or no merit, directly to the Union upon receipt (where the grievance originated from a member or presumed employee). In this particular case and many others I have tried to tell you about, NEAJ was never aware of grievances (as many as 28 in one case alone in July 2010).

Under oath and cross-examination, Tamara Elzig testified to the two following key facts. Her testimony is memorialized and recorded:

1. It is the District’s position that union and employee rights go on leave at the same time the employee goes on medical leave (regardless of whether breaches of the CBA occurred even while on leave – Which would include: breaches of union privacy, keeping information from the union, interfereing with lawful association of union members, and interfering with attorney work-product under CCP 2018, and union busting);

2. It is the District’s position that it does not have to forward grievances to the Unions when it feels that there is no merit to the grievance.

I very quickly, in an objection-response exchange, mentioned to Judge Cu that we have not filed a charge against the District’s unions. I am aware of 150+ grievances that have been filed by my clients alone (both classified and certificated). I am going to very nicely ask you folks to once again review your policies, practices, and procedures to make sure that your members’ rights aren’t being trampled right under your noses. As you know, the Code does confer the right to an individual employee to bring a Superior Court action. We have already mentioned the violation of many of these rights in Archambault v. JUSD, (a First Amendment, Due Process, anti-discrimination, ant-racism, and Equal Application declaratory relief case).

If you all really believe that DFEH, EEOC, USDOE, CTA, NEA, CDOE will take to the position that a disabled employee, on approved medical leave, cannot file any grievances whatsoever, this will be a REALLY BIG PROBLEM not only for the District, but for you. If the lack of attention to grievance processes meant that employees did not know they could even file grievances, there is a bigger problem. Unfortunately, there is plenty of sworn testimony on this issue already.

It makes one wonder about how many other employee problems were kept from you and the CSEA. Worse yet, how many breaches of confidentiality of membership, representative organizations, and counsel have occurred? It is a federal and state crime to monitor union membership communications without adequate notice and without sufficient probable cause. I am reserving all rights my clients have under Section 1983 and to take further action.

The District has already lost a motion under CCP 425.16, rendered damaging sworn testimony on lack of Due Process in the Braden arbitration conducted before Hon. Arturo Morales, and Superintendent Elzig’s performance yesterday was an outright admission of an intention to directly interfere with Union Rights. We already know from the Norman and Gonzalez cases that the District monitors all communications over its electronic wire systems and mail systems (as defined under Federal Law) and is aware of and checks the content of union and legal counsel writings and communications. Employees and union membership are not adequately warned of the tapping.

With regard to Mr. Vigrass, why don’t you have a private e-mail address for Union business? The District has already proven that it knows what you discuss. You have no less than two or three members under fire for what was allegedly found on their classroom computers (including Union business). Some of the horrifically perturbing information was placed on my client’s computer, in the Norman case, after he was already on administrative leave (a literal, figurative, and unconstitutionally sound reality).

Yesterday, your District proved, beyond a doubt, that it doesn’t see your union activities as confidential. Superintendent Elzig and her counsel vigorously argued for a claim to know what you are up to, when you meet with your members, and how many times. This is constitutionally unacceptable and, in my privileged opinion, violates many state and federal laws.

The ALJ also could not rule on whether your discussions with accused union members was/is confidential. I am supposed to brief that issue. I’ve never been to a PERB hearing and didn’t even know what PERB was before this proceeding.

Fortunately for the Union, in this limited case, you were not at the scene of ‘crime’ as it were. The unions had already chosen to ignore Nelson’s case and the District made CBA union representatives look ignorant and ineffective. As you can see from the attached briefing done in CSEA cases and testimony, this isn’t new.

I do know what the law is and basically had to argue it for the unions. It is the District’s position, through counsel and Elzig, that your communications with members are fair game. Worse yet, you have an indemnity provision in your CBA that gives the unions the privilege of paying the District’s bill (at their discretion), win, lose or draw. This is a constitutional and due process disaster of unprecedented proportion. I have many friends who are public employees, in official and elected capacities, and none would approve of this – regardless of politics.

I will look back in my files to find the e-mail from the CSEA’s Janet Jones telling me to mind my own business. More than one of my certificated clients has/have heard similar threats from others aside from Messrs. Sibby and Vigrass. I believe that you have all the right intentions, but your rights, as well as those of your members, have been trampled to death. Identifying what’s left of those rights will not be cheap, easy, or likely to come through my one-man office. I just got out of the hospital myself, am still being diagnosed and evaluated, and am overwhelmed by what is going on within this District. I am desperately hanging on to my ability to achieve victories for your members, but also don’t have the resources to keep it up if the Unions don’t get involved more visibly and effectively.

The amount of real exposure created for the Unions is beginning to be massive to say the least. I am on your side, but I don’t have the resources or manpower to argue matters directly affecting your leadership. Messrs. Sibby and Vigrass have been upfront with me, pursued what information they could verify, and don’t appear to be neutral on the rights of their members. Even with their efforts, the District has now crossed battlefield lines that will end up with innumerable casualties of failures in applying the Principles of the Constitution.

Should you choose to share this e-mail with Ms. Elzig and Mr. Duchon, if they have not already seen it, please let them know that these are simply my opinions and the hearing transcript speaks for itself. The unions got worked over bad and were made to look very stupid and ignorant – and it wasn’t by me.

Perhaps we should discuss this in a more confidential forum. My clients are very concerned and so am I. If you want to meet with my clients as a group and get your colleagues to join us from the CSEA, it would be appreciated.

Richard D. Ackerman
Law Offices of R.D. Ackerman

Temecula Office:
Madison Executive Suites
27247 Madison Ave., Suite 116
Temecula, CA 92590
(951) 296-2442

Downtown Riverside:
Riverside County Bar Ass’n Bldg.
4129 Main Street, Suite B5
Riverside, CA 92501
(951) 267-7000

Wednesday, January 25, 2012

Appeal of Poway Unified’s God Banner Ban Filed with U.S. Supreme Court

See new posts re David Loy and earlier posts under his former name of David Blair-Loy.
Update: Appeal of Poway Unified’s God Banner Ban Filed with U.S. Supreme Court
The U.S. Supreme Court has been asked to overturn a decision allowing the district to prevent a math teacher from displaying classroom banners about God.
By Shauntel Lowe
Rancho Bernardo Patch
January 24, 2012

A Michigan-based public interest law firm has filed an appeal to the U.S. Supreme Court objecting to a lower court’s decision allowing the Poway Unified School District to prevent a math teacher from displaying classroom banners with messages about God.

The ruling is an unconstitutional restriction on free speech in a public forum because other types of speech—such as another teacher’s poster with the lyrics to John Lennon's Imagine—are allowed, argues The Thomas More Law Center in its appeal filed Jan. 19 and announced Tuesday.

“What you really had was an egregious demonstration of a double standard,” Richard Thompson, president of the law center and chief counsel, told Patch. “The double standard was used again to censor Christian speech.

“There is this agenda that is out there supported by the ACLU, supported by Americans United for the Separation of Church and State, that is trying to cleanse the public square from any kind of Christian message and they’re using the courts to do it.”

In September, the 9th U.S. Circuit Court of Appeals overturned a 2010 decision by a federal judge in San Diego that said the district had violated the First Amendment rights of Westview High School math teacher Bradley Johnson in 2007 by ordering him to take down the banners. They bore messages such as “In God We Trust” and “All Men Are Created Equal/ They Are Endowed By Their CREATOR.”

In September 2010, the ACLU of San Diego and Imperial Counties filed a brief with the 9th Circuit Court supporting the district’s decision to have Johnson take the banners down, saying, “The banners’ repeated emphasis on ‘God’ and the ‘CREATOR’ creates a serious risk that reasonable persons would believe the District is endorsing religion.”

September’s ruling found that the district’s ban upheld the Establishment Cause prohibiting endorsement of religion.

The Thomas More Law Center—which describes itself as a “not-for-profit public interest law firm dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values, and the sanctity of human life”—argues that this is a cherry-picked ban on Judeo-Christian speech. Another teacher displayed Tibetan flags with no recourse, and Lennon’s Imagine promotes an anti-religious point of view but was allowed, showing a bias against Christian speech, the center argues.

But this isn't about clamping down on Christian messaging, said David Loy, legal director for the ACLU of San Diego & Imperial Counties which believes the banners and the Tibetan prayer flags should have been taken down.

"It's our position that both of those were unconstitutional," Loy said. "Public school teachers should not be in the business of promoting religion in the classroom."

The large size of Johnson's banners and that they had been there so long—particularly in a math class and not in a philosophy or literature class—could lead a "reasonable" student to believe that they indicated an endorsement of religion by the school district, Loy said.

Johnson, in a 2007 lawsuit against the district, said the banners are not a means to proselytize but represent historical messaging about the country’s origins. Thompson, too, said the banners are just a means of educating students about the role of Christianity in the nation’s development. Taking the banners down and removing Christian messaging from the classroom runs counter to that, he said.

“It really is a way of indoctrinating our students into believing that our nation was founded on principles other than Christianity,” Thompson said.

The school district, in a statement from its attorneys, said it would file a written opposition to the appeal with the U.S. Supreme Court.

"We believe that the Ninth Circuit properly followed the Constitution and Supreme Court precedent in ensuring that all students have a proper environment for learning," attorney Jack M. Sleeth Jr., of Stutz Artiano Shinoff & Holtz, said in a statement. "The Ninth Circuit correctly found that teachers have no First Amendment right to espouse their personal religious beliefs in the classroom."

The issue about the banners in the classroom of Johnson, who had been with the district for three decades, arose when a fellow teacher questioned the school’s principal about them in late 2006. Johnson, according to court files, said he had had the banners up in some way since 1982. In January 2007, district officials had Johnson take the banners down and he soon filed suit against the district and school board, which approved the decision to take down the banners.

In February 2010, Johnson won his suit, arguing that the district had violated his First Amendment rights, but in September 2011 that decision was overturned on appeal. Poway Unified Superintendent John Collins, in a statement at the time, said the decision to overturn Johnson’s victory was “very consistent with the legal and educational rationale the District has used since the very beginning of this case. We are pleased with the outcome after more than four years in the courts.”

Whether the U.S. Supreme Court will hear the case has not been determined. The Court received more than 7,800 requests in the term running from October 2010 to October 2011, but only agreed to hear about 1 percent of the cases.

Wednesday, January 04, 2012

Suit says district liable for athlete's brain injury

The trial is scheduled to be webcast live on Courtroom View Network, a pay website that caters to attorneys and law schools across the country. A spokesman for the network said it chose the Eveland trial because it will feature “top-tier litigators and extensive expert witness testimony, which along with significant outside interest makes it a great candidate for electronic coverage.”

See also: Dan Shinoff's motion for gag order in Scott Eveland case is denied

Suit says district liable for athlete's brain injury
J. Harry Jones
Jan. 3, 2012

SAN MARCOS — On the second play of the second quarter of a high-school football game more than four years ago, Mission Hills High linebacker Scott Eveland limped off the field and collapsed on the sideline.

The 17-year-old’s life would be saved in surgery many hours later, but it would be a life greatly altered.

Now, a Vista Superior Court jury will be asked to determine why Eveland suffered a catastrophic brain injury that night in September 2007.

More to the point, they will be asked to decide if employees of the San Marcos Unified School District bear the brunt of responsibility.

Barring a last-minute settlement, the trial is scheduled to begin Friday and could last eight to 14 weeks. According to court documents, Eveland’s lawyers will ask the jury for roughly $25 million, which is what they say is needed to provide the expensive, 24-hour-a-day care Eveland will need the rest of his life.

Eveland suffered a subdural hematoma — bleeding in the brain. His mind is active, but his is body crippled. He can type out responses to some questions on a keyboard but can barely speak. He’s made some progress physically, but his mobility is very limited.

“He’s going to be severely disabled for the rest of his life,” said his mother, Diane Luth. “But you know what? That kid is motivated. He’s working hard. … He’s doing what he can to get the connection back. He hasn’t given up.”

Eveland will be brought into court in a wheelchair during the trial but will not testify, his attorney said.

Football head injuries have become a hot legal and health topic nationwide in the past few years, with far more attention being paid to signs of concussion because of the long-term effects such incidents can cause.

The trial is scheduled to be webcast live on Courtroom View Network, a pay website that caters to attorneys and law schools across the country. A spokesman for the network said it chose the Eveland trial because it will feature “top-tier litigators and extensive expert witness testimony, which along with significant outside interest makes it a great candidate for electronic coverage.”

Eveland’s lawyers maintain that during the days before the game, Eveland was experiencing worsening headaches. Just minutes before the game, they will argue, Eveland went to the team’s athletic trainer and told him his headache was so bad, his eyes couldn’t focus. They will say that he asked to be held out of the game for at least the first quarter and that the trainer, Scott Gommel, then went to Coach Chris Hauser with the information.

According to one witness, who was a student trainer at the time, Hauser was overheard telling Gommel “You aren’t a (expletive) doctor,” and something to the effect of “These are my players, and I’ll decide who plays and who doesn’t.”

Eveland started the game. Two other young witnesses are expected to testify that in the days after Eveland collapsed, Gommel told them that he had gone to Hauser and told him of Eveland’s health complaints but that the coach put Eveland in the game anyway.