Agency to Investigate County Office of Education Employee

When I saw the title of this article, I thought that I was going to read about Dan Puplava or Diane Crosier. But it seems that investigators prefer to look into small-time shenanigans rather than broad institutional corruption. Those who care about honest government can only hope that this investigation will shed some light on other operations at the risk management office at SDCOE.

January 12, 2011
Agency to Investigate County Office of Education Employee
by Emily Alpert
Voice of San Diego

A state agency that regulates financial conflicts of interest is launching an investigation into whether San Diego County Office of Education employee is illegally enriching her husband and herself.

The investigation stems from concerns that Michele Fort-Merrill advises her boss on whether to retain attorneys for personnel cases, which routinely leads to her husband's law firm getting business from the County Office. Here's how we explained the issue when I first reported on it almost two years ago:

Michele Fort-Merrill, who oversees the agency's human resources department, is married to William Merrill, a partner in Best, Best & Krieger, a San Diego law firm that frequently represents the county office. She has a financial interest in the firm of more than $100,000 annually through his income, according to state forms that disclose her economic interests.

When an employee is disciplined or other problems erupt with employees in the office, Fort-Merrill weighs whether or not an outside attorney is needed to help navigate legal issues, or whether human resources staff can handle the problem, County Superintendent Randolph Ward said in a recent interview. If she believes that lawyers are needed, she makes a recommendation to Ward, who then makes the ultimate decision on whether to hire an attorney.

Public officials are generally barred under California law from making or helping to make government decisions in which they or their spouse have a financial interest. Being involved in the decision can include advising the decision maker, as Fort-Merrill does. Though Ward said Fort-Merrill does not directly assign legal work to any firm, her advice helps him decide whether the office turns to outsiders or its own staff, which impacts the amount of work going to her husband.

We later analyzed which attorneys were granted the work on personnel cases and found that in past years, it was almost guaranteed that those kind of cases would go to her husband's firm. It is unclear, however, whether her husband, dubbed a partner in the firm, profits from the overall success of the firm or solely from his own billings.

Rodger Hartnett, a former employee who is suing the agency for wrongful termination, complained to the state Fair Political Practices Commission that Fort-Merrill has a financial stake in sending work to his law firm. The FPPC sent Hartnett a letter last week saying it would investigate the allegations.

Not all complaints are investigated: The FPPC typically reviews complaints and decides within 14 days whether to investigate them or not, said spokeswoman Tara Stock. The agency bases its decisions whether the alleged actions could be a violation of the state Political Reform Act. Opening up an investigation does not mean that the allegations are valid or that the accused people are guilty.

Hartnett alleges he was fired for blowing the whistle on what he described as "a culture of corruption" at the agency. He is suing not only the office but two of its employees, including Fort-Merrill, as individuals because he claims they personally retaliated against him. The County Office and its employees counter that Hartnett was discharged for misconduct and poor performance that occurred months before he began raising concerns.

His "inflammatory and unsubstantiated claims against [Fort-Merrill] were an eleventh hour smokescreen to obscure the true reasons for his termination," wrote Pamela Lawton Wilson, one of Fort-Merrill's attorneys, in a legal brief.

Michelle Fort-Merrill sends SDCOE work to her husband, while Bonnie Dumanis charges 5 county officials with conflict of interest

What's going on, Bonnie Dumanis? It sure seems that politics controls your decisions about charging people with crimes. You appear to be blind to conflicts of interest when your cronies are guilty.

And it seems that the California Supreme Court disagrees with your charges against 5 county officials.

It seems that BBK partner Woody Merrill is getting some advantages due to his wife's position at San Diego County Office of Education.

Related link: The Schoolhouse Lawyer Who Helped Hire His Overseer (March 2, 2009)


When Wife Advises, Husband’s Firm Almost Always Picked
Michele Fort-Merrill attends a meeting at the County Office of Education. Photo: Sam Hodgson
By EMILY ALPERT
Monday, Oct. 12, 2009

When Michele Fort-Merrill advises her boss that the San Diego County Office of Education should look to outsiders for legal help, it is almost guaranteed that the work will go to her husband's firm, a voiceofsandiego.org analysis has found.

As executive director of human resources, Fort-Merrill advises the county superintendent whether to retain attorneys for personnel issues. She does not choose which firm to employ, but over the past four years, those cases have gone almost exclusively to Best, Best & Krieger, which employs her husband, William Merrill. Fort-Merrill has a financial interest in the firm of more than $100,000 annually through his income, according to her economic disclosure forms...

But a major question was left unanswered: How likely it is that legal business will go to BB&K and to William Merrill specifically if Fort-Merrill advises hiring an outside attorney for a personnel case. The new numbers, culled from public records by voiceofsandiego.org, help shed light on that key question about the relationship. They show it is almost inevitable that personnel cases will go to BB&K, which accounted for 99 percent of the hours attorneys billed for such work since 2005.

That deepens concerns among ethicists about Fort-Merrill giving advice on whether to get legal help...

Public officials are generally barred under California law from making or helping to make government decisions in which they or their spouse have a financial interest. Being involved in the decision can include advising the decision maker.

"The issue is quite simple -- as a public official you shouldn't make decisions based on your financial gain," said Jessica Levinson, director of political reform at the Center for Governmental Studies, a Los Angeles-based nonprofit that helps people participate in their government. "Whether that's her motivation, I can't speak to. But she is financially gaining based on decisions she's making in her professional capacity."

BB&K began receiving almost all of the County Office legal work related to personnel cases four years ago. Its attorneys have billed $234,000 over that time for personnel cases, which averages to $58,500 annually, the voiceofsandiego.org analysis found. The previous firm had billed an average of $17,100 annually in the prior seven years. BB&K both logged more hours and charged slightly more.

BB&K began to be used almost exclusively for personnel cases in July 2005, the same time that Fort-Merrill became executive director of human resources...

Before 2005, the County Office usually turned to Parham & Rajcic, a Laguna Hills firm, to handle cases related to employees. The attorney it often used, Mark Bresee, left Parham in February 2005 for the Orange County Department of Education.

A few months later, the San Diego County Office of Education started sending its personnel cases to BB&K...

BB&K's share of the overall legal business at the County Office of Education has grown over time, from 35 percent in 2000 to 87 percent in 2008...Cases referred by Fort-Merrill's department made up at least 25 percent of its business from 2005 to 2008...

While personnel cases almost always go to BB&K, Merrill himself made up only 7 percent of the attorneys' billing, according to the analysis. But it is unclear whether Merrill and his wife benefit solely from business that goes directly to him as an individual attorney or from BB&K business in general.

Merrill is listed on the firm's website as a partner, a term historically meaning that an employee earns a share of the firm's profits. He filed an economic disclosure form two years ago that listed a partnership in the firm valued between $100,001 and $1 million...

Fort-Merrill's role has been questioned by a former County Office employee, Rodger Hartnett...

But ethicists and attorneys not associated with the case said it was problematic for Fort-Merrill to advise the superintendent on personnel cases that could end up going to her husband or his firm. Some said the new revelations that BB&K is almost always used for those matters only increased their concern.

"She's got a problem. It's an untenable position to be in, and a good law firm would tell her that," said Bob Fellmeth, a professor of public interest law at the University of San Diego.

Derek Cressman, western states regional director for the nonpartisan watchdog group California Common Cause, said he didn't know whether the connection was illegal, but said it raised the appearance that Fort-Merrill was "bettering herself." He said, "If I were a public official that wanted to give voters confidence that I was making decisions based on the public interest, I wouldn't be doing what she is doing."...

"The fact that there is someone in between saying 'yes' and 'no' doesn't mean that this is all fine and dandy," Levinson said. Using the firm on other cases before Fort-Merrill started working "decreases any appearance of impropriety to a certain extent," she said, but does not eliminate the problem...

Government employees and elected officials are generally supposed to recuse themselves from government decisions that could impact their finances, said Roman Porter, executive director of the state Fair Political Practices Commission...

Another code prohibits public officials from having a financial stake in the contracts they make, barring them from preliminary discussions, planning or other involvement...

"However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection can be made, the contract is void," states a 1934 court ruling cited in the guidelines.

A letter to the editor about SDCOE's cozy relationships regarding spending

Tenacious Reporting
Letter to editor of Voice of San Diego
By Alice Marquis, La Jolla
Friday, April 24, 2009

Emily Alpert's story about a questionable practice at the County Office of Education: a woman recommends attorneys for labor cases and her husband gets the job.

These cozy relationships occur wherever there are bureaucracies handling money. There is only one barrier to such behavior -- media exposure.

I would bet that half the people in San Diego County aren't even aware that there is a County Office of Education. The activity at that office is rarely reported; it took a disgruntled employee who was unfairly fired to bring the information out into the daylight -- and a tenacious reporter at voiceofsandiego.org to follow up.

Alice Marquis' letter to Voice of San Diego regarding San Diego County Office of Education cronyism

Tenacious Reporting
By Alice Marquis, La Jolla
Friday, April 24, 2009

Emily Alpert's story about a questionable practice at the County Office of Education: a woman recommends attorneys for labor cases and her husband gets the job.

These cozy relationships occur wherever there are bureaucracies handling money. There is only one barrier to such behavior -- media exposure.

I would bet that half the people in San Diego County aren't even aware that there is a County Office of Education. The activity at that office is rarely reported; it took a disgruntled employee who was unfairly fired to bring the information out into the daylight -- and a tenacious reporter at voiceofsandiego.org to follow up.

How Randy Ward chooses San Diego County Office of Education attorneys

Voice of San Diego reporter Emily Alpert has been busy learning about SDCOE lawyers while I've been down here in El Salvador learning about Central America´s justice system.

Advice from Her Can Mean More Work for Her Husband
By EMILY ALPERT
April 23, 2009

An employee at the San Diego County Office of Education advises her boss on whether to retain attorneys for personnel cases, a decision that routinely leads to her husband's law firm receiving business from the agency.

Michele Fort-Merrill, who oversees the agency's human resources department, is married to William Merrill, a partner in Best, Best & Krieger, a San Diego law firm that frequently represents the county office. She has a financial interest in the firm of more than $100,000 annually through his income, according to state forms that disclose her economic interests.

When an employee is disciplined or other problems erupt with employees in the office, Fort-Merrill weighs whether or not an outside attorney is needed to help navigate legal issues, or whether human resources staff can handle the problem, County Superintendent Randolph Ward said in a recent interview. If she believes that lawyers are needed, she makes a recommendation to Ward, who then makes the ultimate decision on whether to hire an attorney.


Neither Ward nor Fort-Merrill specifies which attorney to use, Ward said. But BB&K is routinely used for personnel cases unless its attorneys lack expertise in a specific topic, Ward said. The county office does not have a written policy outlining the process by which attorneys are hired.

"It's been decided by history that Best, Best & Krieger would be used for disciplinary matters," Ward said. He added, "What typically happens is we would ask BB&K whether they have the expertise on a certain issue, and if we didn't feel they did, we would go to a different counsel."

The phenomenon is one in a spate of complaints raised in a recent lawsuit by a former employee, Rodger Hartnett, who alleges he was fired for blowing the whistle on "a culture of corruption" that resulted in government business going to friends and spouses of San Diego County Office of Education employees.


Related Links

The Schoolhouse Lawyer Who Helped Hire His Overseer (March 2, 2009)


While Fort-Merrill does not directly assign legal work to any specific firm, her advice helps determine whether the office turns to outsiders or its own staff to handle difficult issues -- and going to outsiders frequently means going to her husband's firm.

University of San Diego public interest law professor Robert Fellmeth said that the practice would only be acceptable if Fort-Merrill had a much more limited role that involved no independent judgment in deciding when an attorney is needed, such as signing a form to formally request that the agency hire an attorney after an employee filed a lawsuit against them. He cautioned that his opinion relied on the facts supplied by a reporter.

"If she is making decisions to invoke contracts with counsel and she knows that the firm generally hired includes her husband -- there is a problem," Fellmeth wrote in an e-mail. "She influences the volume of business going to law firms -- a substantial part of which inures to her husband's firm."

BB&K received nearly $688,000 in business from the office between July 2005 and July 2008 while Fort-Merrill oversaw human resources, according to documents Hartnett provided to voiceofsandiego.org. Fort-Merrill's husband has decades of experience as an employment and labor law attorney, according to the BB&K website, which lists him as one of only two attorneys in the firm who specializes in school labor relations law.

Ward said that there is no conflict posed by Fort-Merrill making the recommendation because he makes the final decision on whether or not to hire attorneys. He called BB&K "a staple counsel" and said that William Merrill, commonly known as Woody, had been hired by the agency long before both Ward and Fort-Merrill were employed there. He declined to comment on whether Fort-Merrill had ever recused herself from recommending whether to hire attorneys, saying it was too related to the ongoing court case...

Tri-City Health Care District Hospital places CEO on administrative leave and fires school attorney Woody Merrill

To see all posts on Tri-City Healthcare, click HERE.

UPDATE DECEMBER 25, 2008: In my opinion, Burke Williams & Sorenson law firm is no better than former Tri-City lawyer Woody Merrill. Reform is needed, but none
of these lawyers is interested in reform. Maybe the public should sell the hospital (cheap) to employees. (See Logan Jenkins' article.)


Tri-City Medical Center CEO Art Gonzalez has been placed on administrative leave. At a closed-session meeting yesterday Tri-City Health Care District Hospital (Oceanside) placed CEO Art Gonzalez and administrators who worked closely with him on administrative leave.

At the December 18, 2008 board meeting, Michael J. Williams of C.M. de Crinis & Co. in Sherman Oaks was hired to do a forensic audit of hospital books.

At the same meeting the board fired legal counsel William W. "Woody" Merrill, who is also one of the preferred attorneys doing work for San Diego County Office of Education. Merrill works for Best, Best and Krieger, a firm that has many contracts with public agencies in San Diego. Mr. Merrill's wife, Michelle Fort-Merrill, works for SDCOE-JPA, and is currently being sued by Rodger Hartnett, a former SDCOE-JPA employee.

Merrill was replaced by Julie Biggs, a Riverside attorney who works for Burke, Williams & Sorenson.

The San Diego Union-Tribune notes that legal counsel from Musick, Peeler & Garrett was also fired.

The North County Times writes:

...[Kathleen] Sterling and [George]Coulter did say they thought it was time for new legal counsel.

"I think it's important that we give control back to the people and the organization," Sterling said. "The board has by all appearances abdicated their authority to the CEO and it was time to re-evaluate our relationship with Best, Best & Krieger (and) Woody Merrill."

"I feel that these attorneys weren't doing what was right for the board or the public," Coulter said.



A year and a half ago Tri-City trustee Kathleen Sterling objected to financial irregularities at the hospital.

The board has tried for a long time to muzzle Ms. Sterling, and at one time hired a private security firm to follow her. North County Times published various articles about Sterling:
April 27, 2007
Oct. 31, 2005

Sterling was recently reelected.


Channel 6 covered protests in 2004 when Gonzalez and others were given $2 million in bonuses.

On June 1, 2007 Paul Sisson of the North County Times noted that Gonzalez was making $436,000 a year in base salary, and that the governing board had approved two raises:

On a 5-2 vote, with hospital directors Kathleen Sterling and RoseMarie Reno opposed, the board increased Gonzalez's base salary from $436,000 to $457,000. The raise is retroactive to Oct. 3. A second 5-2 vote along the same lines will increase the chief executive's base salary to $483,000 on Oct. 3 this year. Gonzalez's contract with Tri-City requires that his salary be reviewed annually and adjusted to keep his pay in the 65th percentile of hospital chiefs at similar-sized medical institutions nationwide...

Gonzalez earns a base annual salary of $483,000. The board voted recently to pay him a $90,000 bonus for 2008.

Other articles about Tri-City and Woody Merrill:

Opposition statement to Tri-City bond challenged; September 7, 2006

Tri-City sues doctor for breach of contract; July 9, 2007