North County Report includes intesting comments about CAB bonds and secretive lawyers

 UPDATE APRIL 9, 2016

Someone complained to Google about the following post, and Google decided to play around with my blog. They moved the post from my home page. So I'm republishing it.

Note to Google:

By the way, Google, who is it exactly that you're doing favors for? I think this is a pretty tame opinion piece. What exactly is it that you don't want the public to see?

Your move, Google. Remember your own motto: don't be evil.


 ORIGINAL POST:

"...Beatty voiced concerns with Shinoff’s work for San Ysidro schools and a recent unsuccessful attempt to get a restraining order against an outspoken Poway Unified resident WITHOUT THE BOARD'S KNOWLEDGE" (emphasis added).

-- from North County Report by Ruarri Serpa, Voice of San Diego April 6, 2016

Maura Larkins' comment:

I applaud Kimberly Beatty's efforts to have the Poway Unified School Board take more responsibility for the district's actions in court.
 
But Ms. Beatty has her work cut out for her if she thinks she's going to be able to get the board to deal with issues that it has traditionally let lawyers deal with.

There's a reason that school lawyers take action without consulting the board. It's the way things are done in most districts. It helps incumbent board members avoid controversial issues. And Beatty might have the courage to deal with hot-button issues, but I think she'll find that most of her fellows on the board will want to leave things as they are.

Sure, the board might decide to discontinue its relationship with Stutz Artiano Shinoff & Holtz law firm. But will the board want to change the way legal business is normally handled?
School board members regularly set up firewalls so they can claim they know nothing about what the lawyers are doing. If Beatty is talking about the Chris Garnier case, then the board can hardly claim ignorance of what was going on. Perhaps Dan Shinoff didn't consult with them ahead of time, and ask for an official decision about how to proceed, but the board must have heard about the case since it was covered in the San Diego Union-Tribune and on Channel 10 News.

If the board had a policy of having school lawyers consult with them before filing any request for a TRO, we would have heard board members howling about the breach of protocol at the very next board meeting. Instead, the board maintained silence through months of news stories. During that time, the board must have been approving payments to Stutz law firm.

Many people know that I've had my problems with school attorneys, but it has become clear to me that legal problems are not entirely the fault of the attorneys.

Attorneys are hired first and foremost to protect school officials, not to protect the public interest. Attorneys are expected to do what needs to be done so the district can present a calm, happy face to the world, and the incumbents can be reelected when it comes time to vote.

We seem to have unique ethics rules for lawyers.

For example, most people would agree that an elected official is supposed to act in the interest of the public that elected him and pays his salary. But this apparently does not apply to the elected City Attorney of San Diego. Remember when San Diego went into paroxysms of outrage when City Attorney Mike Aguirre claimed that his job was to act in the public's interest in regard to the big pension scandal? Even the California Bar Association said that public entity attorneys represent the officials, not the public. Of course, the Bar Association's goal is to advance the careers of attorneys. I do not believe that any court has actually ruled on this question.)

The system is set up to protect board members from responsibility for their lawyers' actions. This set-up ensures that board members have plausible deniability if the district ends up in court. Board members can plead ignorance. In addition, school attorneys fight tooth and nail to keep board members off the witness stand. So when you go to the voting booth in school board elections, you're going to have to choose between incombents who have absolutely nothing to say about the district's legal problems and challengers who are also ignorant of what goes on behind the scenes.

So how does a school district communicate with lawyers on a day-to-day basis? You might think that the superintendent steps in and takes responsibility for communications with the district's legal counsel. Nope, not the superintendent, at least not in my experience at Chula Vista Elementary School District or in many districts I've read about.

Who is the district's contact person for the lawyers? Usually, it's the Human Resources Director. And does the HR director tell the attorneys what to do? Heavens no. The attorneys instruct the HR director.

(I did see an exception to this rule in Grossmont Union High School District in around 2008 when board members Priscilla Schreiber and Larry Urdahl challenged the status quo and asked questions openly in board meetings about what was going on with the lawyers. At that time Superintendent Terry Ryan revealed that Shinoff had a verbal agreement with SDCOE rather than a written one.)

It is clear to me that many elected officials and superintendents intentionally abdicate responsibility.

Why? I think they like not having to think about pesky problems like lawsuits. I guess you'd call that laziness. And they don't want the voters to hold them responsible for what goes on in schools. They think that if they keep problems covered up, they will be reelected.

And they are almost always right about that.

North County Report includes intesting comments about CAB bonds and secretive lawyers

......Beatty voiced concerns with Shinoff’s work for San Ysidro schools and a recent unsuccessful attempt to get a restraining order against an outspoken Poway Unified resident WITHOUT THE BOARD'S KNOWLEDGE" (emphasis added).

-- from North County Report by Ruarri Serpa, Voice of San Diego April 6, 2016

Maura Larkins' comment:

I applaud Kimberly Beatty's efforts to have the Poway Unified School Board take more responsibility for the district's actions in court.
 
But Ms. Beatty has her work cut out for her if she thinks she's going to be able to get the board to deal with issues that it has traditionally let lawyers deal with.

There's a reason that school lawyers take action without consulting the board. It's the way things are done in most districts. It helps incumbent board members avoid controversial issues. And Beatty might have the courage to deal with hot-button issues, but I think she'll find that most of her fellows on the board will want to leave things as they are.

Sure, the board might decide to discontinue its relationship with Stutz Artiano Shinoff & Holtz law firm. But will the board want to change the way legal business is normally handled?
School board members regularly set up firewalls so they can claim they know nothing about what the lawyers are doing. If Beatty is talking about the Chris Garnier case, then the board can hardly claim ignorance of what was going on. Perhaps Dan Shinoff didn't consult with them ahead of time, and ask for an official decision about how to proceed, but the board must have heard about the case since it was covered in the San Diego Union-Tribune and on Channel 10 News.

If the board had a policy of having school lawyers consult with them before filing any request for a TRO, we would have heard board members howling about the breach of protocol at the very next board meeting. Instead, the board maintained silence through months of news stories. During that time, the board must have been approving payments to Stutz law firm.

Many people know that I've had my problems with school attorneys, but it has become clear to me that legal problems are not entirely the fault of the attorneys.

Attorneys are hired first and foremost to protect school officials, not to protect the public interest. Attorneys are expected to do what needs to be done so the district can present a calm, happy face to the world, and the incumbents can be reelected when it comes time to vote.

We seem to have unique ethics rules for lawyers.

For example, most people would agree that an elected official is supposed to act in the interest of the public that elected him and pays his salary. But this apparently does not apply to the elected City Attorney of San Diego. Remember when San Diego went into paroxysms of outrage when City Attorney Mike Aguirre claimed that his job was to act in the public's interest in regard to the big pension scandal? Even the California Bar Association said that public entity attorneys represent the officials, not the public. Of course, the Bar Association's goal is to advance the careers of attorneys. I do not believe that any court has actually ruled on this question.)

The system is set up to protect board members from responsibility for their lawyers' actions. This set-up ensures that board members have plausible deniability if the district ends up in court. Board members can plead ignorance. In addition, school attorneys fight tooth and nail to keep board members off the witness stand. So when you go to the voting booth in school board elections, you're going to have to choose between incombents who have absolutely nothing to say about the district's legal problems and challengers who are also ignorant of what goes on behind the scenes.

So how does a school district communicate with lawyers on a day-to-day basis? You might think that the superintendent steps in and takes responsibility for communications with the district's legal counsel. Nope, not the superintendent, at least not in my experience at Chula Vista Elementary School District or in many districts I've read about.

Who is the district's contact person for the lawyers? Usually, it's the Human Resources Director. And does the HR director tell the attorneys what to do? Heavens no. The attorneys instruct the HR director.

(I did see an exception to this rule in Grossmont Union High School District in around 2008 when board members Priscilla Schreiber and Larry Urdahl challenged the status quo and asked questions openly in board meetings about what was going on with the lawyers. At that time Superintendent Terry Ryan revealed that Shinoff had a verbal agreement with SDCOE rather than a written one.)

It is clear to me that many elected officials and superintendents intentionally abdicate responsibility.

Why? I think they like not having to think about pesky problems like lawsuits. I guess you'd call that laziness. And they don't want the voters to hold them responsible for what goes on in schools. They think that if they keep problems covered up, they will be reelected.

And they are almost always right about that.

San Ysidro Schools trustee steps down after all; judge may not have known about section 1770 when ruling that Yolanda Hernandez could stay in office after conviction

Government Code Section 1770 states, “An office becomes vacant” when an elected official is convicted of “any offense involving a violation of his or her official duties.”

Hernandez pleaded guilty to omitting information about gifts from contractors on state disclosure forms, signed under penalty of perjury.

Dan Shinoff, attorney for the San Ysidro and Sweetwater schools, said, "...but you can’t just ignore the judge’s ruling."

San Ysidro trustee steps down after all
By Allison Sampite-Montecalvo
and Ashly McGlone
SDUT
April 30, 2014

San Ysidro schools trustee Yolanda Hernandez stepped down Wednesday evening, a day after her sentencing in the ongoing corruption probe at three South County school districts.

At her sentencing on Tuesday in Chula Vista, Hernandez received community service and probation, but Judge Ana Espana allowed her to stay in office.

On Wednesday, U-T Watchdog raised questions with district officials, attorneys and legal experts across the state — many of whom did not see how Hernandez could remain in office. Confusion ensued, along with meetings among school officials and lawyers.

State law mandates that an elective office be vacated when the official is convicted of any violation involving his or her duties.

The U-T posted a story online about the law, and more than 90 percent of readers in an unscientific online poll said Hernandez should not be in office. Board president Jason Wells then informed the Watchdog that Hernandez, 65, would resign.

“She decided to do what was best for the district and herself, which was to resign,” Wells said. “We are very grateful for her 20 years of service and this was the right move at this time. This is the latest step in a long process that this board has gone through to positively change the climate in the San Ysidro School District.”

Hernandez was one of 15 elected officials and contractors indicted in 2012 in a probe by District Attorney Bonnie Dumanis of pay-to-play allegations at three school districts. She is the 10th defendant sentenced, but the first who seemed poised to remain in office after her case concluded.

Her departure could have implications for two Sweetwater Union High School District board members who pleaded guilty last week and are to be sentenced in June. Neither expected to leave office, and Espana issued a finding that they were authorized to keep their board seats.

“The court came to that conclusion after reviewing the statute pertaining to this particular offense,” Espana said in court, without citing a statute.

Government Code Section 1770 states, “An office becomes vacant” when an elected official is convicted of “any offense involving a violation of his or her official duties.”

Hernandez pleaded guilty to omitting information about gifts from contractors on state disclosure forms, signed under penalty of perjury.

U-T Watchdog discussed the code section with several legal experts on Wednesday — including the San Ysidro district’s lawyer — and they all thought the law was clear:

Michael Colantuono, a municipal attorney who was named Public Lawyer of the Year in 2010 by the California Bar Association: “I do not read that statute to give the court any discretion. It provides that they lose their office upon conviction of a felony or upon a misdemeanor of their official duties.”

Dan Shinoff, attorney for the San Ysidro and Sweetwater schools: “My reading of 1770 is that if you are convicted of a felony or found guilty of wrongdoing relative to your duties in office, that your seat becomes vacant. I don’t think that’s complicated, but you can’t just ignore the judge’s ruling.”

[Maura Larkins' comment: Dan Shinoff, who has represented the San Ysidro School District for many years, has a history of insisting that judges who rule in his favor be obeyed even when he knows perfectly well that a ruling is a violation of law.

For example, Judge Judith Hayes ruled in December 2009 that I could never in my life mention Dan Shinoff's name (even to talk to a lawyer to defend me from the defamation lawsuit filed against me by Dan Shinoff's firm, Stutz Artiano Shinoff & Holtz). This is clearly an egregious and brazen violation of the First Amendment, but Shinoff's law firm argued that Judge Hayes was within her rights to ignore the Constitution.

The Court of Appeal ruled against Judge Hayes and Shinoff.
If Mr. Shinoff truly didn't know that the injunction was unconstitutional, I'm wondering how good his legal advice is. The First Amendment is a pretty simple concept, after all. If Mr. Shinoff did know, yet continued to try to enforce the illegal injunction, then I'm wondering if he has the ethics we expect from a lawyer who is paid to represent public entities.]

Robert Fellmeth, founder and director of the University of San Diego’s Center for Public Interest Law: “It’s not a discretionary statute at all. You are ‘vacant.’ You’re gone.”

One issue may be that no attorneys involved in the case brought the right code section to the judge’s attention.

Fellmeth said if he was still a deputy District Attorney in the courtroom, “I would be sure to raise the issue before the court and insist upon the vacancy... The court did not seem to know anything about 1770 at all.”

For most of the day, Hernandez was not planning to leave office. Her defense attorney, Michael Crowley, said she planned to serve out her term, which would have ended in November.

“Ms. Hernandez pleaded guilty to the lowest misdemeanor available and the DA stated that at the sentencing hearing,” Crowley said. “She will not be running again, but there is no law precluding her from finishing out her term, which will be the culmination of two decades of service.”

District officials were scrambling most of the day to find a course of action.

“We haven’t received any information from the DA’s office with regard to (Hernandez) having to resign or received anything from them in writing regarding any plea,” said George Cameron, interim superintendent. “What we want to do is get access to the court’s decision and we’ll have it reviewed by our legal counsel.”

With Hernandez out of office, attention will now turn to Sweetwater.

Two members of the Sweetwater school board, Arlie Ricasa and Pearl Quiñones, already left office as a result of their convictions. Both pleaded guilty to accepting gifts above state limits, and Quiñones admitted to a conspiracy as well.

Two more school board members, Cartmill and Lopez, pleaded guilty last week to accepting gifts above state limits. Neither expected to leave office, and the judge found they could stay. Cartmill’s term is up in November, and Lopez is in office until 2016.

As with Hernandez, there was no discussion at their hearing of Government Code Section 1770 and its requirement that they leave office. Now that the code section is better known, it may come up at their sentencing. “The court has the discretion to make sentencing decisions, and we will provide our input at the hearing,” District Attorney’s spokeswoman Tanya Sierra said. Jill Galvez, parent of a Sweetwater student, said Lopez and Cartmill should simply resign. “In my opinion, the county board should ask for the resignation of these two board members and they should appoint four interim board members until we have our elections here in Chula Vista,” she said. “Both these board members violated public trust and they should step down from office. I’m shocked the judge didn’t ask them to.” Sharon Floyd, a former 35-year teacher in Chula Vista, agreed. “I think those two folks should resign immediately,” she said. “If my vote counts, they need to go. Now.” Not everyone feels that way. Chula Vista resident and parent Maty Adato said Lopez should remain in office. “I believe that Ms. Lopez is the only one that asks for accountability,” she said. “I don’t think Ms. Lopez should have to resign. She is the only one doing her job.” By the way, it was Talkwalker that alerted me to this story. I have become disappointed with Google alerts. Talkwalker gives me quick alerts on the words I ask them to look for, while Google alerts is often silent on important stories.

Lawyers against bullying: has the San Diego County Bar Association decided to clean up its act? No, it's going after bullies who aren't members

I'm wondering, can the Constitution rein in abuse, deception and intimidation by lawyers?

It's interesting to note that Stutz Artiano Shinoff & Holtz is still golden for the Anti-Defamation League in San Diego, and for Cal Western law school.

SDCBA to host forum on cyber-bullying
Daily Transcript
September 20, 2013

The San Diego County Bar Association (SDCBA) and the Anti-Defamation League are hosting a workshop to discuss cyber-bullying Sept. 24 from 5-7:15 p.m. at the SDCBA's Bar Center.

Panelists will include California Western School of Law professor Ruth Hargrove, San Diego County Deputy District Attorney Oscar Garcia, San Diego Unified School District Police Chief Reuben Littlejohn, and Stutz, Artiano, Shinoff & Holtz partner Jeffrey Wade.

U.S. Attorney Laura Duffy will moderate the discussion, titled “Cyber-Bullying – Classroom to Courtroom: Can the Constitution Rein in the Bullies?”

The panelists will explore legal issues and developing case law surrounding the issue of cyber-bullying, a practice that increasingly results in intervention by the judicial system.

The event offers 1.5 CLE general credits and is free for SDCBA law student members. The cost is $45 for SDCBA and Anti-Defamation League members and $65 for non-members.

Law Firm Selected General Counsel to City of San Diego Ethics Commission

Nov 29, 2010
Law Firm Selected General Counsel to City of San Diego Ethics Commission
SAN DIEGO, CA
Marketwire

[WXYZ law firm--which prefers to remain anonymous in these pages] is pleased to announce it has been selected to provide General Counsel services to the City of San Diego Ethics Commission. Beginning January 1, 2011, Associate [CCC] will serve as General Counsel and Partners [AAA] and [BBB] will serve as Associate General Counsel.

[CCC] is a member of the firm's Municipal Law and Government Relations Group and has more than 19 years' experience as a policy advisor to various City of San Diego elected officials, including Mayor Maureen O'Connor, Councilmember Harry Mathis and Council President Scott Peters. In past roles, [CCC] has advised elected officials on the promulgation of regulations related to elections and ballot propositions, open meeting requirements, governmental ethics, major land code updates and project approvals, as well as implementation of bond-financed municipal infrastructure projects.

"We are proud to have been selected to be the Ethics Commission's General Counsel," said Managing Partner [YYY], "and consider meaningful ethical standards in public service to be an important tool in maintaining public confidence in government. Our selection underscores the firm's solid reputation advising public entities."

The San Diego Ethics Commission was established in 2001 and is charged with monitoring, administering, and enforcing the City of San Diego's governmental ethics laws related to elections, lobbying and conflicts of interest. The Ethics Commission also advises and educates city officials and regulated members of the public regarding governmental ethics laws, conducts investigations, audits disclosure statements, and proposes governmental ethics law reforms. The Commission was previously served by in-house counsel...


Current Commissioners of San Diego Ethics Commission:
W. Lee Biddle
Faye Detsky-Weil
Clyde Fuller
Hon. William J. Howatt, Jr.
John C. O’Neill
Larry S. Westfall
Bud Wetzler

Gil Cabrera and Marty Emerald: which one is sneakier?

See all Gil Cabrera posts.

From where I sit, Gil Cabrera and Marty Emerald look like twins. They are politicians careful not to rile the wrong people. But lately I've been feeling that Gil Cabrera is the twin who's hiding more. It's pretty clear what Marty's agenda is. She's a mainstream Democrat, defending the little guy to the extent acceptable to the powers that be. But what's up with Cabrera? What exactly is his agenda?

Why does he just go after small, technical violations of ethics laws, and steer clear of addressing true, deep corruption in our government and legal system?

The Marty Emerald ethics hearing

See all posts about Gil Cabrera, chairman of San Diego Ethics committee.

A Different Report on the Emerald Ethics Hearing
Apr 12, 2010
THERESA QUIROZ
Voice of San Diego

On Thursday, April 8, the San Diego Ethics Commission held a televised meeting to hear an appeal by Councilwoman Emerald of the amount of the penalty assessed against her for two errors made during her campaign. There was no argument that the errors occurred. It was simply a question of how much the penalty should have been.

I watched the event (and it most definitely was an event; the city should have sold tickets!), but what I saw was not what appeared in our local print news.

Perhaps this is a perfect occasion to lament the loss of our unbiased print media, but let's leave that for another time. I want to give you my view of what actually happened at the hearing.

I give credit to Commissioner Valdez for handling a very difficult situation. He didn't do it as well as I would have liked, but his hands were somewhat tied.

First, he invited the Ethics Commission attorney to introduce her evidence. She needed to prove that the errors made by the Emerald campaign were so awful that they had to levy the largest fine possible for the infraction. She called both Ms. Emerald and her treasurer to the stand. She then closed her case...

The evidence did show that the treasurer contacted the commission as soon as she realized there could be a problem, that this was an isolated incident and that the Campaign Committee fully cooperated with Ethics Commission staff. (You can find the relevant Municipal Code regarding penalties here, under section 26.0438).

The code does not allow for penalties to be assessed if the commission thinks that there might have been negligence, if they can make innuendo as to the intention to deceive or if the executive director dislikes the candidate -- as she seemed to make an effort to show by her actions at the hearing. There needs to be proof...

The Ethics Commission did not attempt with its witness testimony to put any evidence into the record to prove that this was the most grievous error a campaign could make and therefore deserved the highest possible fine. It was that arrogance, that belief that they needed to make no effort to prove their case, that was the most striking action of the day to me.

So, despite that there had been no evidence given which would have allowed for a penalty, the hearing continued.

Mr. Ottillie was invited to call his witnesses. Immediately, the objections began.

Ms. Fulhorst, the Executive Director of the Ethics Commission had no place objecting -- that was for her attorney to do. And yet, she disrupted any attempt by Mr. Ottillie to put forward his evidence. She objected, sighed loudly into the microphone, tutted and tsked all the way through. Several times, when it appeared the witness might say something she didn't want to come out, she jumped in and actually testified before the witness could. But most of all, she objected to the waste of time it was for Mr. Ottillie to put forward any evidence. It was as if she believed that the outcome of the hearing was a predetermined thing, and the hearing was just a complete waste of her precious time.

I think we can all agree that a lot of the questions asked by Mr. Ottillie seemed somewhat pointless, but he has the right to put forward evidence of his client's innocence and to do so without the constant harassment of the person responsible for the assessment in the first place...

Do ethical lawyers prepare orders for a judge to sign that indicate that their motion was granted when it actually was denied?

Do ethical lawyers sometimes write a proposed order for a judge to sign that doesn't mention that their motion was denied?

I am interested in hypothetical situations. If you figure things out ahead of time, it makes it easier when push comes to shove to make the right decision.

So I've been working on this imaginary scenario in which a lawyer believes he can get a judge to sign an order that is significantly different from the minute order prepared by the judge. In this fantasy, a judge has denied the lawyer's motion without prejudice, and given the opposing party a very specific instruction. But the lawyer never mentions in his proposed order that his motion was denied, and he adds significant details to the judge's instructions.

Is this something an ethical lawyer would do? Hmmm. Do readers have any thoughts on the matter?

Legal ethics and San Diego Unified School District attorneys

Voice of San Diego
by Emily Alpert

"Shortly after we reported on attorney Douglas Abendroth's connections to a pro-life Irvine church today, the webpage describing the attorney's relationship with the church had been removed. Abendroth was selected by San Diego Unified School District to revise a controversial policy that requires school staff to call parents of pregnant students...

"A pdf printout of the page is available here [http://voiceofsandiego.org/pdf/ abendroth.pdf]. (The beginning of the text is obscured by a photo.)

"...CCP is a member of Presbyterian Church in America, which penned a position paper in 1978 stating that "We are convinced Scripture forbids abortion ... We cannot stress too strongly our authority in this matter."

"Abendroth said views within the church differ, and he is not personally "anti-abortion."

"Under California legal ethical guidelines, attorneys must disclose in writing to clients any legal, business, professional or personal interest in a subject they review. District legal counsel Ted Buckley, who selected Abendroth to review the policy, was aware of Abendroth's church involvement and said he was confident that Abendroth would provide sound, unbiased legal advice..."

-- EMILY ALPERT
Friday, December 14, 2007
http://voiceofsandiego.org/articles/2007/12/17/this_just_in/627webpage121407.txt