What sort of employee is preferrred at a corrupt community college like Southwestern? Court of Appeal decides Poveda case

This Southwestern College employment case has been reversed and remanded by the Court of Appeal. It was argued by school attorneys Atkinson Andelson Loya Ruud Romo. This is the new law firm of Mark Bresee, who has a long history in San Diego and Orange Counties. Mr. Bresee worked closely with school attorney Dan Shinoff in Chula Vista Elementary and other schools.


Mark Bresee

Poveda v. Southwestern Community College Dist.
CA4/1, D062460 (Cal. Ct. App. 2014)
California Courts of Appeal

Date Filed: January 17th, 2014
Docket Number: D062460
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

(Super. Ct. No. 37-2011-00099248- CU-WM-CTL)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

FERNANDO POVEDA,

Plaintiff and Appellant,

v.

SOUTHWESTERN COMMUNITY COLLEGE DISTRICT,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Richard E. L. Strauss, Judge. Reversed and remanded with directions.
v David S. Bristol, Boudreau Williams and Jon R. Williams for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Marlon Craig Wadlington for Defendant and Respondent.

Fernando Poveda appeals the trial court's denial of his petition for writ of mandate filed under Code of Civil Procedure section 1085. He contends that during the 39 months after his former employer, respondent Southwestern Community College District (Southwestern), laid him off for lack of funds, he applied for several positions at Southwestern, but Southwestern filled those positions without granting him the reemployment preference to which he was entitled under Education Code1 section 88117. Southwestern counters that it filled all those positions internally with current Southwestern employees. It interprets section 88117 as requiring it to grant Poveda reemployment preference over only external applicants, that is, those not currently employed at Southwestern.

The issue presented is whether the term "new applicants" used in section 88117 applies only to external applicants or to both internal and external applicants. We agree with Poveda and conclude that the latter interpretation comports with the statute's plain terms and the legislative scheme. Accordingly, we reverse the judgment and remand for the court to grant Poveda's writ petition and determine the appropriate relief under Code of Civil Procedure section 1095.

FACTUAL AND PROCEDURAL BACKGROUND

In an October 2011 verified petition for writ of mandate, Poveda alleged that Southwestern hired him in October 1991 as coordinator for outreach/school and community relations, a classified administrative position that later was elevated to a 2 directorship level. In 1999, Poveda held the position of interim dean of student activities for approximately seven months. Effective June 2009, Southwestern eliminated Poveda's job as director of outreach because of lack of work or funds, and not because of his work performance. Southwestern notified him he was eligible for reemployment preference under section 88117. In July 2011, Poveda applied for three deanships, two directorships, three supervisor positions and all open supervisor or administrative positions at Southwestern.2 Southwestern never interviewed Poveda, but instead filled the vacancies internally. Poveda's writ petition sought damages, including employment in one of the positions he had applied for, back pay and lost benefits.

In opposing Poveda's writ petition, Southwestern did not dispute his factual claims; rather, it argued that section 88117 granted Poveda preference over new external applicants only, and not over internal ones. Southwestern acknowledged that although it is not a merit district, section 88117 applies to it under section 88014. Southwestern argued that, faced with massive budget cuts over several years, it was forced to restructure its operations and therefore eliminated certain positions, reduced the total number of full-time employees, and filled other positions internally as permitted by California Code of Regulations, title 5, section 530213. Southwestern claimed that

3 California Code of Regulations, title 5, section 53021 states: "Except as otherwise provided in this section, community college districts shall actively recruit from both

because it does not use promotional or other employment examinations, it could not have violated section 88117, subdivision (a)(2).

Joseph Quarles, Southwestern's interim vice-president of human resources, explained in a supporting declaration why Southwestern did not grant Poveda the reemployment preference. Quarles stated that approximately 87 percent of Southwestern's expenditures are personnel costs, including salaries and benefits. In 2011, in light of reduced state and federal funding, Southwestern reorganized and restructured its operations and programs. Quarles stated that in filling the challenged positions, Southwestern relied on its internal policy titled, "Recruitment and Hiring Policy and Recruitment and Hiring Procedure (No. 7120)," and reviewed all vacancies "for a determination of the necessity of continuing the position and other means of providing services that were less costly. Only where [Southwestern] determined that an absolute need existed for the services provided by a particular position was the position filled. Because the ultimate goal was a reduction in personnel costs, it was determined that instead of following the normal hiring procedure, the vacancies would first be advertised

within and outside the district work force to attract qualified applicants for all new openings. . . . The requirement of open recruitment shall apply to all new full-time and part-time openings in all job categories and classifications." (Cal. Code Regs., tit. 5, 53021, subd. (a).) However, the regulation creates an exception permitting the community college to conduct " '[i]n-house or promotional only' " recruitment under limited circumstances. (Cal. Code Regs., tit. 5, § 53021, subd. (b)(1).) The regulation specifies: "For purposes of this section, a new opening is not created when: (1) there is a reorganization that does not result in a net increase in the number of employees; (2) one or more lateral transfers are made and there is no net increase in the number of employees; (3) a position which is currently occupied by an incumbent is upgraded, reclassified, or renamed without significantly altering the duties being performed by the individual." (Cal. Code Regs., tit. 5, § 53021, subd. (c).)

4 internally for current employees only. If no qualified current employees were found, then the position would be advertised to non-employees. The positions identified by [Poveda] in his declaration and pleadings were all advertised internally only and only current employees were permitted to apply for the positions."4

The court denied Poveda's petition for writ of mandate. It ruled nothing in section 88117 required Southwestern to grant Poveda reemployment preference over internal applicants, and if the Legislature had intended that result, it would have specified that laid-off individuals were entitled to preference over "other new applicants." It reasoned that section 88117 did not apply to Poveda because he was a laid-off employee, and not a "new applicant."

DISCUSSION

Poveda contends that under a plain reading of section 88117, the term "new applicants," over whom he had reemployment preference, applies to both internal and external applicants. By contrast, Southwestern interprets section 88117 to require it to grant a laid-off employee a reemployment preference only over external applicants...

All statutory references are to the Education Code unless otherwise stated.

I'm shocked! Did attorney Mark Bresee give bad legal advice to the Rio School District board? The District Attorney seems to suspect so

DA says Rio board may have broken open-meetings law
By Cheri Carlson
June 10, 2011

The Rio School District board appears to have broken state law that prohibits trustees from discussing or taking action on issues outside of a meeting, the District Attorney's Office said this week.http://www.blogger.com/img/blank.gif

Special Assistant District Attorney Michael Schwartz said his office received a complaint that the board held a serial meeting to hire its legal counsel. Such an action would violate the state's open-meetings law — called the Brown Act.

But in another letter this week, the DA's Office dismissed a list of other allegations against the Rio board. The allegations, which included charges of bribery and conflict of interest, were brought by two board members against the three-member board majority.

The violation appears to have taken place before the Rio board's Feb. 10 closed-session meeting, according to a letter Schwartz sent to trustees this week.

Attorney Mark Bresee appeared to have acted as an intermediary by getting a consensus from three trustees that he advise them about Superintendent Sherianne Cotterell's termination, the letter states. Bresee has since been hired as the board's general counsel.

"The District Attorney has the authority to bring a civil lawsuit to stop or prevent threatened violations of the Brown Act," Schwartz wrote. He asked the district to respond to the concerns, so the DA's Office can determine if it needs to bring such an action.

Board President Eleanor Torres said Friday that Bresee is expected to provide additional information to the DA's Office soon. She expects that information will clear up any concerns.

However, if it is determined that a violation occurred, the board will make sure the issue is properly addressed and remedied, Torres said.

Bresee declined to comment while the matter is still under review.

Under the Brown Act, a majority of a board members cannot discuss or take action on board business outside of a meeting. That's the case if trustees speak directly to each other or through an intermediary, the DA's Office said.

In this case, Torres had contacted Bresee to discuss issues regarding Cotterell and asked him to come to the Feb. 10 meeting, which he did. Bresee was not the board's attorney at the time, but another lawyer at his firm worked for the district on other issues and referred Torres to him.

Bresee appears to have then confirmed with Trustees Henrietta Macias and Ramon Rodriguez that they also wanted him at the Feb. 10 meeting to discuss the superintendent's contract, officials said.

The Rio board did not take action at a public meeting to hire Bresee as its general counsel until the end of March.

At a March 2 special meeting, Macias, Torres and Rodriguez voted to terminate Cotterell's contract without cause.

Trustee Tim Blaylock voted against the move. And Trustee Mike Barber, who also supported Cotterell, was unable to attend the meeting because of a prior commitment.

Blaylock and Barber brought their concerns to the DA's Office.

In the separate letter to trustees this week, Schwartz addressed eight other allegations the two trustees had brought forward, saying that "no violations have been established that would warrant action by the District Attorney's Office."

On Friday, Torres said that none of the allegations were warranted. "They (Blaylock and Barber) are wasting so much time and effort on a whole lot of different agencies' parts," she said.

Blaylock, who said he wants to make sure the board governs properly, said he appreciated that the DA's Office looked into the concerns. "I think he (Schwartz) took his time. He investigated, and he did a thorough job," Blaylock said.

Blaylock, however, said he continues to have concerns. Other cases could be reopened should more information become available, he said.

Torres said she hopes the board will be able to move forward and work together. "It just comes to a point when it has to stop," she said. "Let's go forward."

"It's quite clear that there are differing opinions of members of the board," Schwartz said Friday.

The DA's Office isn't taking any position on issues such as what trustees should vote for or vote against, who they should hire or fire, he said. "Our concern is that the process be done correctly, and the right for the public to participate be honored."

- vcstar.com

Here is a case in which Mark Bresee gave advice to Chula Vista Elementary School District.

New employer of former SDUSD general counsel Mark Bresee is sued for Brown Act violations

Rio school board sued over alleged Brown Act violations
By Cheri Carlson
Ventura County Star
June 3, 2011

Attorney William Grimm has filed suit in Ventura County Superior Court, alleging the Rio School District board broke state law in several closed-door meetings leading up to Sherianne Cotterell's removal as superintendent.

Grimm, who is married to Cotterell, wants the court to order trustees to follow California's open meetings law — the Brown Act. He also wants the court to declare null and void the split board's March 2 action to terminate Cotterell's contract without cause.

Cotterell was given 60 days' notice of the termination following the board's 3-1 vote that night.

The board majority has demonstrated a complete disregard for laws and policies, Grimm said this week in an email response to questions.

"They have done so because no one stands up to them," he said. "It is time they are held accountable. The court needs to send a message to the board majority that they are not above the law."

Rio officials disagreed. "The district denies that any violations of the Brown Act occurred, and we intend to vigorously contest the lawsuit," said attorney Mark Bresee, who represents the Rio board.

Discussions the board had in closed session were consistent with what was listed on the agendas, he said. "I obviously can't and won't discuss what the board discussed in closed session, because I'm legally bound to maintain the confidentiality of that."

Regarding the March 2 action, Bresee said "public employee discipline, dismissal, release" was listed on the agenda. People commented on the issue, the board took action to dismiss and release the superintendent, and reported that action after the closed session ended, as required by law, he said.

Under the Brown Act, trustees are allowed to meet behind closed doors to discuss a limited number of issues, including personnel. They must, however, disclose on the agenda what they generally will consider in the meeting and allow the public to comment.

Grimm said that didn't happen.

Agendas for closed sessions from Feb. 10 to March 2 included items for the superintendent's evaluation and employee discipline, dismissal or release. But those descriptions were inadequate and misleading, according to the suit.

Trustees did not disclose that they were considering potential litigation and should not have discussed compensation behind closed doors, according to Grimm's complaint.

The day after the Feb. 10 meeting, the board's attorney contacted Cotterell's representative and proposed terms for her to resign in return for about 10 months of salary, about $137,500, the suit states.

Under her contract, the maximum cash settlement for the board to end Cotterell's employment without cause likely would equal 18 months of pay, or about $247,500.

On Feb. 14, Cotterell gave the district a counter-proposal, including an explanation of her position and four potential claims she was considering filing against the district. The complaint did not provide details of that counter-proposal.

The board then met in closed session Feb. 17. According to the suit, the board discussed and rejected Cotterell's settlement offer and proposed compensation package.

The district also made a counter-offer, including a waiver to any claims the superintendent might bring against the district, the complaint states.

Bresee said there were several inaccuracies in the suit. He also disagreed that the board wrongly discussed compensation in closed session. There are times when a board may consider financial settlements in a closed session, he said.

Cotterell's contract specifically addresses the issue of a settlement if her contract is terminated without cause, he said.

To label something as potential litigation, the Brown Act requires a legal opinion that significant exposure to litigation exists, he said. He did not believe that existed at the time.

Bresee said the district will file a response to Grimm's court complaint within 30 days.

Rio trustees met again Feb. 24 and March 2, when trustees announced they had voted 3-1 to exercise the "no-cause" termination clause of Cotterell's contract. Trustee Tim Blaylock voted against the move, and Trustee Mike Barber, who also supported Cotterell, was absent.

Board President Eleanor Torres and trustees Henrietta Macias and Ramon Rodriguez voted in favor of the move. The vote came about three months after four new trustees were sworn in after being elected to the five-member board.

At a meeting last week, Blaylock told other trustees that he plans to bring forward proposals to increase public access regarding board business.

He, too, thinks violations have occurred in open and closed sessions over the past several months, including trustees taking action on issues in closed session that aren't adequately described on agendas, he said. Other trustees have disputed those claims.

It's not the first time a Rio school board has faced a lawsuit over alleged Brown Act violations after firing a superintendent. In 2003, Yolanda Benitez was fired in a 3-2 decision, with Macias as one of the majority votes.

Benitez later sued and won a large settlement from the district after courts ruled the board had broken the Brown Act.

What happened to Mark Bresee, the recently-resigned general counsel for SDUSD?

He's up in Ventura, where the new school board is taking action against a superintendent popular with the old board.

Rio board moves to buy out superintendent's contract
By Cheri Carlson
Ventura County Star
March 2, 2011

Rio School District trustees announced in a split decision Wednesday night that they will buy out schools chief Sherianne Cotterell's contract, which would make her the third consecutive Rio superintendent forced out by a board.

It was the fourth week in a row that trustees scheduled a closed-door discussion for a performance review of the superintendent. The discussions came just three months after four new trustees were sworn in after being elected to the five-member board.

Weeks before the new members took their seats, Cotterell had received excellent ratings in a performance review by the former board.

In a 3-1 vote Wednesday, newly elected board President Eleanor Torres and trustees Henrietta Macias and Ramon Rodriguez voted to exercise a provision of Cotterell's contract that allows the board to terminate the employment agreement without cause. They also announced that Cotterell will be put on paid administrative leave, effective at the end of business Friday.

The board will provide Cotterell with 60 days' written notice of its decision today, board attorney Mark Bresee said. The contract requires written notice before a termination without cause.

Any discussion and the vote itself took place in closed session. Torres declined to comment about why the decision was made.

Trustee Mike Barber, who was absent Wednesday, said he had requested the meeting be held on a different day because of previously scheduled plans. A statement he wrote was read into the record before the closed session.

"I want to be clear and on the record that I am against the action that certain members of the board are taking," Barber wrote in the statement. "I support our current superintendent and the job she is doing for the district."

Trustee Tim Blaylock, the sole remaining member of the previous board, was the only vote against the move Wednesday...

The board's action came amid criticism of the superintendent's misdemeanor conviction on shoplifting charges last year, and a long-strained relationship between the teachers union and district administration.

Torres, Macias and Rodriguez were endorsed by the Rio Teachers Association.

Cotterell's contract was to expire at the end of this June, but the former board met in November and gave her positive performance ratings for the past two years, triggering a two-year contract extension.

A maximum cash settlement for the board to end Cotterell's employment without cause likely would equal 18 months of pay, or $247,500. Cotterell gets a base salary of $165,000 annually, according to her employment contract.In recent weeks, some have lauded her work in Rio. Others have criticized her, as well as former trustees, for extending her contract before the new board was seated...

Rio revolving door

March 2003: Superintendent Yolanda Benitez is suspended.

June 2003: The board fires Benitez and appoints Patrick Faverty as superintendent.

September 2003: Benitez files suit against the district and three board members, claiming wrongful termination, breach of contract and intentional infliction of emotional distress.

June 2005: Board decides not to extend Faverty's contract.

November 2005: Faverty says he will resign at end of the school year.

January 2006: State appellate court rules trustees violated state open-meetings law when they fired Benitez.

March 2006: Board settles with Benitez, paying her and her attorneys nearly $1.4 million.

July 2006: Board appoints Sherianne Cotterell as superintendent.

August 2006: Three board members are recalled.

Nov. 2, 2010: Four new trustees are elected to the board.

Nov. 4, 2010: Cotterell gets excellent performance review from board, before new trustees take office.

The interesting relationship between the ACLU and San Diego Unified School District

It's strange that the ACLU left SDUSD out of its lawsuit regarding school fees. I have often wondered if ACLU attorney David Blair-Loy has compromised the ACLU's basic principles in his eagerness to get along with school attorneys. I think Blair-Loy has worked harder to get his "civility" award from the San Diego Bar Association than to defend the Constitution of the United States.


See all posts re David Blair-Loy.

San Diego Unified Not a Defendant in School Fee Suit
September 10, 2010
by Emily Alpert
Voice of San Diego

While schools in San Diego Unified School District have repeatedly gotten in trouble for charging fees for school activities and supplies, the American Civil Liberties Union ultimately decided not to name the district in its lawsuit against the state of California.

The suit, which accuses the state of failing to protect the right to a free public education, mentions school districts across the state that charge for classes. David Blair-Loy, legal director for the local chapter of the American Civil Liberties Union, said unlike others, San Diego Unified has taken significant steps to solve the problem, such as posting information about the law on the school district website.

None of the districts cited in the lawsuit are actually defendants; the ACLU is suing California itself. Blair-Loy said that while schools should not charge illegal fees, the bigger problem is that California has failed to adequately fund schools.

"We know they're getting starved by the state. We sympathize with their dilemma," Blair-Loy said. "The problem would be unlikely to arise if districts were adequately funded to begin with."

Sally Smith, a mother who repeatedly raised the issue of school fees, charging that the practice was illegal, says despite its efforts, San Diego Unified has still failed to explain the law to all parents. Many families lack computer access and need explanations in languages other than English.

School district attorney Mark Bresee said while San Diego Unified is not planning to mail out information about school fees and the law to all parents, the district has provided sample language for schools to use in their own parent newsletters and other communications with families.

"We don't view not being named in the (ACLU) complaint as some sort of vindication," Bresee said. "We had issues in San Diego. We still have issues in San Diego. And we've been working harder than any school district I know of to remedy them."

Here's the letter the ACLU wrote to Bresee explaining why the school district was not named in the lawsuit.

SDUSD General Counsel Mark Bresee made a habit of concealing documents

This story sounds extremely familiar to me. I have personal experience with Mark Bresee's failure to produce documents.

UPDATE:

We’d Never Stand in Auditors’ Way, Says Attorney
December 6, 2010
by Emily Alpert

Last week Andrea Niehaus, who heads up internal audits at San Diego Unified, told financial watchdogs that school district attorneys have hampered her independence, saying that in one instance, she had to wait for a school attorney's approval before examining payments to a school health trust.

Schools attorney Andra Donovan, who was at the same meeting where Niehaus aired her concerns, said she didn't believe lawyers had ever interfered with the auditors. Over the weekend, I also heard from Mark Bresee, the attorney who just left the school district for a new job.

Bresee wrote in an email:

I neither asked nor expected other departments to seek Legal office approval to give documents to auditors/investigators; and 2) in the circumstance Andrea mentioned, when I was asked (unsolicited) whether the documents should be given to the auditors, I told them to give the auditors what they ask for.

The Legal office has not ever, nor will it ever, stand in the way of getting auditors and the investigator information relevant to their work.

Yet that is exactly the complaint that Niehaus raised, saying she had trouble getting documents for the first time in her lengthy career at San Diego Unified. What's even more odd and interesting about this clash between San Diego Unified attorneys and auditors is that the audit department has long been managed by the legal department. So why are conflicts erupting now?...

COMMENT:

John De Beck posted at 10:09 am on Tue, Dec 7, 2010:

I disagree about the statement that the INDEPENDENT internal auditors have been managed by anyone in the district until recently when they were placed under the SUPERVISION of the school's legal department. Supervision implies evaluation and control of the operations. INDEPENDENCE is a requirement for an internal audit department, just like it should be for the school police. Imagine if the school police had to get permission to invenstigate a campus crime, or to follow up on a citizens complaint, or if they had to worry if they made an arrest because it involved a person with board of education influence. That restriction is clearly out of the realm of ANY other district employee, including LAWYERS and that freedom to operate should also be true for INTERNAL AUDITORS. They follow the leads they get from ANONYMOUS employee hot lines. ANY INFLUENCE or threat on their work could be characterised as based on political considerations. When compalints about the police or the internal auditors PROCESSES come up, the facts of the case should not be suppressed. I maintain that Bresee is wrong again. He was judged wrong at least twice before by reputable local attorneys. Being afraid of your supervisors is not INDEPENDENCE, and restrains honest investigation. The board should deal with this immediately. The fraudulent behavior discovered by the auditors is irrefutable, (and even arrogently admitted by the staff) but the behavior of the school system is deplorable.



'They Can't Tell Me What to Look At'
December 3, 2010
by Emily Alpert

Schools' internal auditor Andrea Niehaus said today that her independence has been hampered by San Diego Unified attorneys, airing the charge to a school committee that oversees audits.

"They don't seem to understand that they can't tell me what to look at," Niehaus said this morning. She added she had never had such problems getting documents before in her 31-year career at the district.

Niehaus told members of the school district audit committee, which serves as an outside financial watchdog for San Diego Unified, that in one instance, she had had to wait for a school attorney's approval before she could examine payments to a school health trust.

Chief schools attorney Andra Donovan, who recently stepped in to replace Mark Bresee on an interim basis after he took another job, said she didn't believe legal staffers had ever interfered with the auditors. Donovan stopped short of saying more, telling the committee, "It's not appropriately addressed here."

The allegation comes at the same time that Niehaus and her department are being investigated by outside attorneys. San Diego Unified started the investigation after school employees complained about an audit on grade changing at their alternative school, arguing that interviews with faculty and staff were "inconsistent and/or nonexistent."

The investigation has held up the grade-changing audit. It has also highlighted tensions between the school district auditors and its legal department, which manages the auditors.

SDUSD General Counsel Mark Bresee is out; Keenan and Associates

Insurance companies and brokers play a big role in schools. One insurance broker, Keenan and Associates, seems to have triggered recent problems in San Diego Unified School District. (See second story below.)

Schools' Top Attorney Is Out
Voice of San Diego
by Emily Alpert
October 25, 2010

School district attorney Mark Bresee is leaving San Diego Unified to join an education law firm. The school district announced his departure after a dispute over closed meeting rules that led one school board member to publicly criticize his judgment as an attorney and suggest Bresee should step down.

The school district said Breese told Superintendent Bill Kowba that he had decided to leave a week ago, and told the school board Thursday. The press release also stated:

"Mark has provided excellent counsel to the Board and excellent leadership for our legal services office. Through his efforts we realized significant savings in our overall legal expenses," said Richard Barrera, Board President. "Mark is as fine a public servant as I have ever encountered."

Bresee was recently criticized by school board member John de Beck for excluding him from a closed school board meeting over concerns that he had a conflict of interest. An outside attorney later determined that de Beck should not have been excluded from the meeting, de Beck and another school board member said.

Though the school board was informed by email on Thursday that Bresee was leaving, de Beck, who has been traveling in Turkey, issued an email announcement Friday saying he believed Bresee should consider stepping down.

Bresee said he had already decided to leave before de Beck sent his email. He is joining the firm of Atkinson, Andelson, Loya, Ruud & Romo as a partner.



Dual Roles Put School Board Member in Bind
October 21, 2010
by Emily Alpert

School board member John de Beck was outraged.

Weeks ago, he was frozen out of a closed school board meeting. Nobody had told him the meeting was happening at all. And then the school district attorney said he'd been kept out of the loop because he had a potential conflict of interest.

The school board was talking about the co-op that provides its employees medical benefits, the Southern California Schools Voluntary Employees Benefits Association. For almost four years, de Beck has sat on the health trust board. At the same time, he has voted on and discussed issues relating to the health trust as a San Diego Unified school board member.

De Beck said the idea that he has a conflict is ridiculous. He gets no money for serving. The health trust board is supposed to include a school board member.

His role hasn't been publicly questioned before. But in the last few weeks, de Beck has been criticized for his dual roles. Other school board members and the school district attorney have questioned whether de Beck can be loyal to both boards at once. If something is good for the school district and not for the trust — or vice versa — they worry de Beck could be torn.

"I'm not sure how objective you could be," said school board member John Lee Evans.

The issue exploded after the school district started exploring whether it should split from the trust altogether. De Beck has been firmly opposed to leaving the trust.

He said excluding him from the meeting was illegal. And he argued that because the trust is a nonprofit cooperative, not a private company, it poses no conflict for him to serve on its board.

"I serve as a volunteer," de Beck said. "How can I have a conflict of interest?"

The health trust works with medical insurance carriers to provide benefits for employees in school districts across San Diego County and the state. By pooling the resources of dozens of school districts, it argues, it is able to get better deals than if districts go it alone. De Beck has touted those as reasons to stay with the trust.

Because it is a partnership between labor unions and school district management, its board includes labor leaders and school district superintendents. De Beck is one of two elected officials on the board, representing the County School Boards Association.

Although the group is a nonprofit, there is a lot of money involved. San Diego Unified is budgeted to pay the trust almost $157 million this year for health benefits and overhead. The trust spent more than $5.3 million on management and general expenses last year, according to its tax returns.

Scott Barnett, who is running against de Beck for school board, argues that sitting on the health trust board is no different than if de Beck sat on the board of a textbook publishing company.

"This is a major vendor of the school district," Barnett said. He believes de Beck should have recused himself from any talks about the health trust. "If it isn't illegal, it should be."

Health trust board members get iPads on loan to view meeting materials. Barnett argues they amount to a gift. As de Beck vies for re-election, he has also gotten $750 in campaign contributions from George McGregor, who administers the health trust.

The school board recently hired attorneys to analyze whether de Beck has a legal conflict of interest. School board members said they couldn't share the attorneys' conclusions because they met with them in closed session this week.

Ethics experts said the arrangement could pose ethical problems when disputes divide the district and the trust. For instance, San Diego Unified paid $2.6 million to the trust last year to settle a payment dispute.

De Beck was absent the day the school board approved the settlement. He said he stepped out of health trust meetings about the issue. But on the health trust board, de Beck ultimately made the motion to approve the settlement with the school district. And he readily says that he talked to the school board about the dispute in closed session before the settlement was struck.

He has also voted on health trust issues on the school board, albeit less sensitive ones, such as adding another health plan for retirees and automating billing.

That raises a red flag for Paul Root Wolpe, director of the Center for Ethics at Emory University. He said de Beck shouldn't vote on the health trust or participate actively in discussions about it because its interests could conflict with those of the school board.

The questions about de Beck's roles erupted after a private insurance company, Keenan & Associates, courted San Diego Unified this year. School board members say Keenan argued the district would save money if it separated from the health trust and bought benefits through them. The school board decided to let Keenan get information to evaluate whether it would save money.

Labor unions were wary. San Diego Unified had just signed union agreements for the next three years that included the health trust. Labor leaders were suspicious the district would try to duck those agreements.

De Beck alleged that the school district had improperly given Keenan sensitive information about employees' health. Keenan denies that; San Diego Unified says it is investigating whether or not that happened and issued an agreement to protect employees if it did.

De Beck also accused school board member Shelia Jackson, who raised the idea of separating from the trust, of trying to help Keenan and bypass the unions to do it. In an email to Keenan employees, Keenan consultant Jim Madaffer, a former city councilman, dubbed Jackson their "steadfast and staunch ally." He also said he'd told Jackson they should give the business directly to Keenan without bidding it out.

Jackson said she was just trying to explore their options and had not guaranteed Keenan business.

Nonetheless, the school board was upset by the emails and decided to stop sharing information with Keenan. That stopped Keenan from analyzing whether splitting away from the health trust would save money — but it didn't stop the debate over whether de Beck could keep juggling two boards.

SDUSD and Mark Bresee tell parents that public school is free

September 1, 2010
District message to parents: Public school is free
KFMB

SAN DIEGO, Calif. (CBS 8) - Thousands of San Diego students head back to school next week, and getting a child ready can be expensive. But if your child attends public school, it's supposed to be free. It's a message that the San Diego Unified School District wants parents to know.

Physical Education uniforms are selling fast at De Portola Middle School in Tierrasanta one week before school begins, $22 for a pair of short and a t-shirt with the school's logo. The principal says uniforms are required.

"Having a PE uniform is very important because kids try to come on campus and blend in, so it's a safety issue," principal Elizabeth Gillingham said.

Paying a fee for a school uniform is voluntary under state law. If a parent can't afford to pay, De Portola Middle School will provide a slightly used uniform for free. That's because public school is supposed to be free.

"There are lot of families out there that are struggling. They don't have the money. You have three children that have to purchase these uniforms, that's a lot of money," parent Sally Smith said.

Smith got tired of paying for calculators, school supplies and gym uniforms for her kids.

"Parents need to know that they don't have to pay for school supplies, and they don't have to tell anybody that it's because they can't afford to pay for it. It's their right to send their child to school and get a free education," she said.

Under California law, school districts cannot charge fees for things like cheerleading or sports uniforms, school supplies or musical instruments. On the other hand, districts can charge for things like bus transportation, food, field trips or damaged books. And if you ever feel pressure to pay a school fee, district officials want to hear from you.

"If you are told that you have to pay a fee for your child to participate in something, or take a class, that should be brought to our attention because that's not right," San Diego Unified Attorney Mark Bresee said.

Of course, schools are still allowed to ask for donations, with is perfectly legal.

"We are asking if a parent wants to donate to the class for the entire class, we are welcoming that," Gillingham said.

The San Diego Unified School District has posted school fee guidelines and frequently asked questions on its web site.

Why doesn't SDUSD want the public to see the legal advice it pays for?

"The school district has argued that its decision is legal because it is using stimulus money, not its own ordinary funding, to pay for counselors and graduation coaches at other schools. They believe that the stimulus money does not fall under the same rules that the critics have cited. But while the school district has said the move is legal, it hasn't let us take a look at its legal advice. San Diego Unified attorney Mark Bresee said under California public records law, the school district doesn't have to disclose its attorneys' legal advice. That's true, but the school board could waive that privilege and give it to us anyway. "

See all posts about school attorney Mark Bresee.

Wondering How San Diego Unified Justifies a Controversial Budget Fix?
Emily Alpert
Voice of San Diego
June 14, 2010

San Diego Unified says it has the legal backing to use federal money for disadvantaged students to pay for counselors and graduation coaches at schools with poorer students. But so far, the school district hasn't let the rest of us see the legal advice they're relying on.

The school district paid an outside law firm $5,000 to evaluate whether the controversial idea, which we explored in a recent article, is legal.

Critics and a state official say it appears to be illegal because schools are supposed to provide equal services to all schools with their basic funding. The special federal money is supposed to pay for the extra needs of poor children, not pay for things the district would anyway.

The school district has argued that its decision is legal because it is using stimulus money, not its own ordinary funding, to pay for counselors and graduation coaches at other schools. They believe that the stimulus money does not fall under the same rules that the critics have cited...

The FBI is interested in the SDUSD whiteboard saga

What if all this money had been spent on evaluating and training teachers? You don't need whiteboards to teach. Simply walking around the classroom to look at what kids are doing, or skillfully asking for oral responses, will let teachers know if students are learning the lesson. One of my favorite tricks is NOT to let the smartest kids answer right away. Instead, the teacher waits until quite a few hands are raising before calling on someone. Another technique: ask another student if the first student has answered correctly. Do this even when the first student HAS answered correctly.

Legal Questions on How Schools Chose Their Whiteboard Brand
Emily Alpert
Voice of San Diego
February 25, 2010

...In a recent interview, Grier said he might have said that Promethean boards should be installed in classrooms, but that was a meaningless verbal slip, like the Southern habit of calling every soda a Coke...



Schools' Technology Choice Draws FBI Interest
April 28, 2010
By EMILY ALPERT

The way in which the San Diego Unified School District chose a specific brand of technological tools has drawn the interest of the FBI, according to a local businessman who sued the school district over it.

Pete Spencer, president of a La Mesa company that installs computerized whiteboards, filed a lawsuit against the school district last year alleging it had inappropriately picked a specific brand of boards for its classrooms. Spencer says he was visited this month by the FBI, which is already investigating whiteboard purchases in Florida and Iowa...

San Diego Unified is undertaking a sweeping technological makeover for schools that include classroom sound systems, laptops for each child and computerized whiteboards that can pull up web pages and interactive lessons. Two Promethean resellers, Vector Resources and Logical Choice Technologies, won a $50 million contract to install Promethean whiteboards in San Diego Unified schools last summer under a $2.1 billion bond to renovate and build schools...

After Promethean was chosen, Spencer argued he was unfairly shut out of competing to install the new technology because he didn't have an existing contract to obtain and install Promethean boards. He settled with the school district and the two winning installation companies for $42,000 earlier this year.

Spencer said he was contacted earlier this month by an FBI agent who then visited his office and asked for copies of his legal documents, including the settlement agreement, letters between his attorney and San Diego Unified and the notification the school district published seeking whiteboard installers.

"She said, 'I can't tell you whether we're doing an investigation or not. But I'll take everything you've got,'" Spencer said. FBI spokesman Darrell Foxworth verified that the agent that Spencer named exists, but he could not confirm whether an investigation is taking place.

Former Superintendent Terry Grier, now leading the Houston school system, said he had not received any subpoenas or requests for information about the Promethean boards, which were selected during his tenure in San Diego. Neither has San Diego Unified, said its attorney, Mark Bresee.

Government agencies can only specify a particular brand of products in limited cases that are specified under state law, such as matching other products or coping with an emergency. Doing so can be a quicker alternative to seeking bids for pencils, flooring or other products. But the rules are specific, meant to avoid at least the appearance of favoritism for a chosen company.

The school district argued that it needed to match Promethean to other whiteboards that had already been installed in new schools. Technology chief Darryl LaGace said his staff had earlier evaluated the boards for a smaller installation and found advantages to Promethean over another brand.

But critics say that if all government agencies followed the same reasoning as San Diego Unified, they could simply block companies from competing for business. For instance, the city could equip a few libraries with a chosen product, then insist on matching all other libraries to it...


A reader sent a link to this page:

Montgomery County Councilmember Michael (Mike) Knapp on the Promethean Board purchase made by MCPS COO Larry Bowers: "At a time when we have limited resources, the school system had locked us into certain expenditures we couldn't afford..."

Gazette; Wednesday, September 9, 2009: "3,300 Promethean Boards in Montgomery County Public School buildings. Where did they come from?..."

Is SDUSD general counsel Mark Bresee presiding over the downward spiral of yet another school?

I believe that every teacher who is concerned about possible false allegations should have the right to request a full evaluation and report, conducted by professionals from outside the district. Also, a teacher who doesn't know if the district is pleased with his or her performance should have that right.

Ideally, school would do this for all teachers on a regular basis, but since they don't, it should be done when questions arise.

In 2001 attorney Mark Bresee worked with Asst. Supt. Richard Werlin of Chula Vista Elementary School to hide crimes committed by employees, and to eject the victim of those crimes because she wanted to know the truth. Before they were done, the district had paid $100,000s to lawyers (you never hear of budget cuts for school lawyers, do you?). Castle Park Elementary went through 11 principals in 11 years, and a public brouhaha developed when five teachers were administratively transferred out of the school. The trigger of all this misery? Mark Bresee's decision to cover up the truth. I was involved in the Castle Park fiasco, and through it I learned a lot about school attorneys. Here's a summary of that case.

For his reward, Mark Bresee was hired as general counsel of San Diego Unified.

Now Mr. Bresee seems to be working his magic at Serra High School in the Sally Smith case.

One of the big problems is that school districts have know idea who's teaching at their schools. Evaluations are a joke. Administrators have no idea which teachers are dishonest, which teachers are pulling strings, and which ones are excellent educators.

And both the teachers union (California Teachers Association--CTA) and administrators want to keep it that way. Why? Laziness. They don't want to be bothered with evaluating teachers. They just want the teachers to keep a low profile and a calm surface at each school, and not bother them. Richard Werlin, for example, relied on the eyes and ears of one teacher, Kathy Bingham, to give him information about Castle Park School. Werlin himself spent his time standing in the hallways of the district office, chatting with whomever happened to pass by. Superintendent Lowell Billings continues to boast about this strategy, which he calls site-based management. It lowers administrative costs significantly.

And if there's ever a problem at a school, these hands-off administrators call in a school attorney like Mark Bresee or Daniel Shinoff to get rid of the problem quietly.

This strategy didn't work at Castle Park Elementary, and it's not working at Serra High School.

What is needed is open discussion, not a cover-up.

I believe that every teacher who is concerned about false allegations should have the right to request a full evaluation and report, conducted by professionals from outside the district.

Admit it, Katherine Nakamura: SDUSD is stuffed to the gills with jelly donuts

SDUSD trustee Katherine Nakamura

In San Diego Unified School District, the right people finally got a bite of the jelly donuts. The right people include former San Diego County teacher of the year Guillermo Gomez, who took one salary cut voluntarily to change districts and teach at a school he believed in, but was laid off by SDUSD at a time of budget crisis.

SDUSD trustee Katherine Nakamura was against rehiring 200 laid-off teachers. She said, "It's nice to rehire teachers, but we're facing a heart attack in the state of California. You don't eat a jelly donut in the middle of a heart attack, no matter how sweet it might be."

Oh, come on, Katherine. You've got jelly all over your face. Didn't you yourself recently vote to hire Mark Bresee as your general counsel, and to pay him more than the last general counsel? That was a very big and costly jelly donut, since Mark Bresee has never responded to allegations that he and Richard Werlin led Chula Vista Elementary School District into a series of violations of law, orchestrated a bizarre farce at the Office of Administrative Hearings (OAH) that prolonged dysfunction at Castle Park Elementary School, and triggered costly litigation and increased insurance premiums. What was your thinking on that one, Katherine?

Voice of San Diego
Half a Year Later, Teacher Layoffs Are Canceled
by Emily Alpert

The San Diego Unified school board voted unanimously to cancel the teacher layoffs that were carried out this summer...

..."I believe this budget was balanced the wrong way last year. And what we are doing now, is we are correcting a mistake the board has made," Barrera said. "We're not doing it because it's nice, not because we want a jelly donut, but because it is fair."

[Exactly. I hope Mr. Barrera will continue to do what is fair. I hope he isn't doing this just because the California Teachers Association wants him to do it. He needs to be independent of CTA, which is as much a violator of the fairness rule as the district.]

What are San Diego Unified School District trustees and attorney Mark Bresee thinking?

When you fire your lawyer, but you keep paying him, it looks like you wanted him to do the things that got him fired, but you fired him anyway so that you look good. This appears to me to be indemnification of a public entity lawyer, and it doesn't smell good to me.


EMILY ALPERT provided the following information in a
Voice of San Diego article:

"... [SDUSD] trustees gave the green light to a $217,500 contract that would allow attorney Mark Bresee to keep his paycheck and health benefits for up to a year if he were fired. Bresee's salary is 16 percent higher than the attorney he replaced, Ted Buckley. And like the agreement the school district struck with Buckley, his agreement provides that if San Diego Unified fires him, he will continue to receive his salary and benefits.

"Buckley was contracted to receive his pay for up to 18 months; Bresee would receive his for a year or the remainder of his contract, whichever is less. Buckley said the provision did not apply because he had decided to retire from the school district."

August 6, 2008

Attorney Mark Bresee leaves as a recall effort comes to a vote

See all Terry Grier posts.
See all Mark Bresee posts.

[Photo: SDUSD Superintendent Terry Grier]

Capistrano Unified School District in Orange County has experienced criminal indictments of administrators for using public funds to play politics, and soon it will hold a recall election for two board members.

We have bad behavior by school administrators and board members in San Diego county, too, but our District Attorney, Bonnie Dumanis, seems not to be interested, except in very bizarre circumstances.

Still, events are converging for a possible legal blow-up here.

Orange County Department of Education lawyer Mark Bresee has come back to San Diego. He'll be an in-house lawyer for SDUSD. A few years ago he helped out Chula Vista Elementary School District by submitting phony documents to the Office of Administrative Hearings. What will he do this time? I guess that depends on what SDUSD's new superintendent wants him to do.

What is Terry Grier thinking?

Grier has shown so much courage until now. But it seems that insurance companies, not the education code and the law of the land, control school district legal departments. Perhaps Terry Grier hasn't figured out how much damage these insurance companies and the Council of School Attorneys have done to education. I would advise him to hire a lawyer who has worked for students or employees. That kind of lawyer would give better advice and would be more likely to stay within the law.


I found this article on the KPCC (Public Radio in Southern California) website.
by Susan Valot
June 23, 2008

"Voters in South Orange County will head to the polls on Tuesday. They're deciding in a special election whether to recall two Capistrano Unified School District board members. KPCC's Susan Valot says it's a battle that's been building for a while.

"Susan Valot: Three years ago, a group of parents unhappy with the Capistrano Unified School District board tried to collect enough signatures to recall all seven board members. That effort failed when the number of verified signatures fell short.

"Last year, voters replaced three of the seven board members with candidates supported by the CUSD Recall Committee. Now, that group's trying to recall long-time board members Marlene Draper and Sheila Benecke. Rancho Santa Margarita City Councilman Tony Beall is part of the recall effort.

"Tony Beall: They have created a culture of corruption in our school district..."

Incompetent teachers don't get fired, but watch out if you're in someone's way

Teachers rarely get fired for incompetence. Usually the reasons are political. Readers might be surprised to know how vicously teachers and school administrators can fight when they want power.

The Office of Administrative Hearings tends to rubber stamp whatever districts ask for, especially when the judge is trying to cozy up to an administrator on the panel.

In THIS CASE, teachers and administrators in Chula Vista Elementary School District had committed crimes and were trying to cover them up.

But corrupt attorneys Mark Bresee, Daniel Shinoff and Elizabeth Schulman worked to keep those crimes covered up.