Sunday, January 19, 2014

Mistrial declared in Fallbrook Union Eementary School District case regarding electronic document destruction

UPDATE Feb. 26, 2015: A jury awarded Elaine Allyn over $1 million for retaliation by Fallbrook Union Elementary School District when this case was finally allowed to reach a conclusion in February 2015 after more than a year of delays.

UPDATE April 2014: A new trial in the Allyn v. Fallbrook case began on
April 21, 2014 with Judge Jacqueline Stern--and was stopped
after four days and rescheduled for July 25, 2014.

Judge Stern had no need to declare a mistrial in the Allyn v. Fallbrook Schools case in October 2013 (see story below). When one juror couldn't continue with the trial, the judge could have let the remaining alternate juror take his or her place. And Judge Stern could have insisted that school district attorneys expedite their questioning instead of letting it drag on for hours and hours--three times as long as plaintiff's counsel. 


Elaine Allyn claims she was fired in retaliation for her objections to the destruction of district electronic documents.

This reminds me of the recent burning of documents in San Ysidro School District.

Traditional document destruction:
a few bags of shredded documents escaped
the burning spree in San Ysidro

SDCOE board members
Mark Anderson, Susan Hartley, Lyn Neylong, Gregg Robinson and Sharon Jones

The liability insurance carrier for most San Diego County school districts, San Diego County Office of Educuation JPA, is deeply involved in the legal strategies used by districts in lawsuits such as a motion for San Ysidro Schools asking the court to forbid any mention of a cash handoff to the superintendent, destroyed documents or criminal charges. SDCOE doesn't think the court--or the public--needs to know what's going on.

It seems that Fallbrook's legal team wanted a mistrial in the Allyn case so Human Resources Director Dennis Bixler could get his story straight for the next trial.

Fallbrook's Human Resources Director Dennis Bixler

And there might also be another reason Fallbrook Union Elementary School District wanted a mistrial: to create financial pressure on the plaintiff so she'll settle for a small amount and then maintain silence about what happened at Fallbrook.

San Diego County Office of Education JPA has deep pockets so it can keep paying attorneys no matter how many times the case is retried, but I doubt that Elaine Allyn has such deep pockets. Is the district abusing the court system to force her to settle for less? The school district had the nerve to file a motion asking for attorney fees--from the Plaintiff!

Elaine Allyn


"'Ten of the 11 jurors said they felt like it was looking like a case of retaliation (against Allyn),' said Curran. 'They said they felt Bixler and Singh were not credible, and that Singh also came across as rehearsed. They said they felt Price wasn’t believable and they hadn’t seen anything that proved [Allyn] had violated any processes.'

Curran claimed one significant incident during the proceedings was noted by the jurors. 'Bixler impeached himself dozens of times by changing his testimony on a critical issue in the trial.' The matter involved whether or not Allyn had complained to Bixler that she was being asked to delete district archives.

Mistrial declared in Allyn vs. FUESD
Debbie Ramsey
Village News
October 24th, 2013

On Monday, Oct. 21, Judge Jacqueline Stern declared a mistrial in the case of Allyn vs. Fallbrook Union Elementary School District (FUESD) at Vista Superior Court, citing that the proceeds would exceed the time limit previously established for the trial. The trial had just begun its seventh day out of the 10 days slated for it. Allyn, the district’s former information technology director and an employee of 18 years, claimed she was wrongfully terminated by administrators in 2012 in an act of retaliation and that the district violated public policy by misusing public funds.

"The jury in this case had been scheduled through Thursday, Oct. 24, and the court determined that the case would not conclude until Nov. 7, resulting in the judge declaring a mistrial," said FUESD defense attorney Gil Abed of Stutz, Artiano, Shinoff & Holtz, APC.

Allyn’s attorney Michael Curran, of Curran & Curran Law, posted the blame for the mistrial firmly on the defense counsel.

"I think it is reprehensible the way they wasted everyone’s time and resources," said Curran, who claimed FUESD attorneys "intentionally" prolonged examination of their defendants in order to effect a mistrial. Curran said he "repeatedly objected to the defense counsel’s undue consumption of time."

FUESD’s defendants, Dennis Bixler, Candace Singh, Bob Price, and associate superintendent Raymond Proctor were the individuals under fire by the plaintiff’s counsel. In an earlier interview, Curran said, "This case is really about an abuse of power, a breach of public trust, and a cover up that included retaliation by [Allyn’s] bosses."

Candace Singh, Superintendent

Curran cited examples of what he called the "excessive" time used in the early days of the trial. "We examined Bixler for 2.5 hours, compared to their 6.5 hours; we examined superintendent Singh for 2 hours, compared to their 6 hours; and we questioned the district’s investigator Price for 2.5 hours, compared to their 7.5 hours," he said.

"Then the district and their counsel claimed they need another two weeks to put on their defense case," said Curran. "The judge was forced to declare mistrial after jurors indicated they could not stay longer then the court originally cleared."

"Two jurors would have encountered problems with their jobs; one had to report for military duty on a certain date," Curran explained.

Prior to the mistrial being declared, Curran said in his opinion, "The case was going along very well and we were demonstrating that Ms. Allyn’s termination was wrongful and retaliatory; the evidence was unfolding just as we had planned."

Conversely, Abed said "As officers of the court, neither Mr. Shinoff (law firm partner) nor I will try a case in the press and will only litigate our cases before the court. We are very disappointed that we were not able to complete this trial and show the jury the abundance of evidence justifying the dismissal of a management employee in the district."

Judge Stern ordered a judicial settlement conference be set for Dec. 12 in the case, which will be presided over by Judge Thomas Nugent, to see if the parties can be assisted in resolving the case before scheduling a new trial.

"[The district] could settle with Ms. Allyn and they should," said Curran. "If an acceptable settlement is not reached, then a case management conference will be set for January, after which a new trial date will be ordered."

Following the dismissal of the jurors, Curran said he had an opportunity to speak with 11 of the 12 to gauge their opinion of the case.

"Ten of the 11 jurors said they felt like it was looking like a case of retaliation (against Allyn)," said Curran. "They said they felt Bixler and Singh were not credible, and that Singh also came across as rehearsed. They said they felt Price wasn’t believable and they hadn’t seen anything that proved [Allyn] had violated any processes."

Curran claimed one significant incident during the proceedings was noted by the jurors. "Bixler impeached himself dozens of times by changing his testimony on a critical issue in the trial." The matter involved whether or not Allyn had complained to Bixler that she was being asked to delete district archives.

"That is smoking gun evidence and we knew he was being told to change his testimony," said Curran.
"We showed him what was in his notes and he had to go back to his original testimony."

Abed said his respect continues for the jury trial process. "A trial is a pursuit of the truth to a jury. We look forward to a complete vindication of all the allegations made against the district."

Curran said he felt the situation leading to the mistrial was disrespectful.

"It is a terrible, continued injustice to Ms. Allyn and 12 very conscientious jurors who listened to the evidence/case for seven days only to have their time wasted by the district and their lawyers," he said.

Curran said other matters have come to light during his handling of Allyn’s case that he feels should be investigated.

"We intend on providing a complete report and demanding the San Diego Office of Education and California Office of Education investigate these matters," said Curran.


...Teri Heyneman-Myers

Oct 28, 2013
I wanted to explain about the jury and the question about the availability of the alternates. The first juror was used when a selected juror had conflicts. There was only one other alternate juror available for the trial Well...the trial was going to extend two weeks beyond the original AGREED upon date. By the way...this was not Allyn's attorney's idea. When a poll took place asking which jurors could remain the answer was obvious. This was a shame that the dedicated jurors had wasted their time.

Apparently it is common for the jurors to speak after a trial. As Mr. Curran said in the VN article Ms. Allyn was favored.

My sister, Elaine Allyn (Heyneman) and I have grown up in Fallbrook. The FUESD style of politics need to change. I think a bit of pruning needs to take place and I do not mean trees. Let's begin at the top shall we?!...

[Maura Larkins comment: When you say "begin at the top" do you mean the pruning should start with Diane Crosier and Randy Ward and the board at SDCOE?]


...[by] WasThere

Oct 28, 2013
I observed one day of that trial and it was a joke. The defense legal team so obviously was burning time on the clock, it was painful to watch. I heard about every job Candace Singh ever had, what she did there, why her role(s) were important, who she worked with.........

This line of questioning by her own legal team went on for hours!! The judge was useless and could have "overseen" this trial via skype. Every time there was an objection (which was literally about every 30 seconds) she had to go back to the minutes because she had no clue what was objected to.

Elaine Allyn on left
FALLBROOK: Ex-tech director says school district officials ordered her to destroy emails
June 17, 2012

The former director of educational technology for the Fallbrook Union Elementary School District has filed a $972,000 civil lawsuit against the district, alleging she was wrongfully fired after being falsely accused of snooping through emails.

The suit, filed May 31 by Encinitas resident Elaine Allyn, includes allegations of discrimination, harassment, retaliation and wasteful spending. She also claims that a district investigation into a teacher suspected of videotaping students was hampered because an administrator had ordered emails deleted, inadvertently destroying possible evidence.

Besides the $972,000 cited in the lawsuit, Allyn's attorney Susan Curran said her client also will be seeking lost past and future income, lost benefits, attorney fees and punitive damages.

Dennis Bixler, assistant superintendent of human resources, said the school board meet in closed session last month to discuss the claim Allyn had filed as a prerequisite to the lawsuit. Trustees rejected part of the claim and sent other parts back without action because they were untimely, meaning they had happened too far in the past, he said.

In the complaint, Allyn said she had been a district employee for 18 years and was earning about $109,000 a year when she was fired in May.

According to the lawsuit, Allyn had been subjected to six years of harassment from Ray Proctor, associate superintendent of business services at the district, who had become vindictive after learning she had complained that he made an inappropriate comment about her in a Cabinet meeting in 2005.

Proctor declined to comment for this story, directing all inquiries to Bixler.

According to the lawsuit, Proctor had said Allyn must have "slept with the vendor" to get the district its good cellphone contract.

Allyn said in the lawsuit that the human resources department ignored her complaint about Proctor, but her accusation was leaked to him. For the next six years, according to the suit, he was overly critical of her, giving her smaller budgets than her male counterparts and denying her staff assistance.

Also in the lawsuit, Proctor is said to have asked Allyn in early August 2011 to wipe out or cleanse the district's entire electronic data imaging from its archive system and to wipe out all emails that were in the trash bin of the active system.

The district hired Candy Singh as the new superintendent last August. According to the complaint, Singh also requested Allyn delete old imaging and emails, and Allyn said she again refused because it was a violation of state and federal laws.

At Singh's and Proctor's insistence, however, Allyn later hired a consultant to help dismantle the archive system, according to the lawsuit.

Last January, the lawsuit continues, Allyn was asked to assist in the investigation against a teacher suspected of videotaping students. Allyn said she scanned the video camera and found nothing incriminating, but was unable to provide a backlog of the teacher's emails, as requested by private investigator Bob Price, because there were few to read since Proctor and Singh had order a change to the archive system.

According to the lawsuit, Proctor asked Allyn for an administrative password to access additional log files on the computer system.

After she complied, Allyn said she was called in to Proctor's office and accused of illegally accessing and reading employee emails.

Allyn said the accusation was unfounded, as employee emails are not considered private and district policy gives her the right and ability to access emails and electronic files without prior notice or consent.

Bixler, however, said that while the emails are not considered private, and supervisors have the right to look into the emails of subordinates, Allyn was looking into the emails of her supervisors.

According to the lawsuit, Allyn said she was accused of looking into Singh's emails because she knew about complaints against the superintendent, including how $30,000 had been spent on new office furniture and remodeling. Allyn said in the suit that she knew of the complaints about the spending because people in the district were talking about them, not because she snooped in emails.

But according to a district notice outlining existing causes to discipline Allyn, which Bixler signed April 12 and provided to the North County Times, the investigator hired by the district found other indications that Allyn was looking into the superintendent's and other administrators' emails.

In her lawsuit, Allyn denied ever looking into the superintendent's emails.

[Maura Larkins's comment: Maybe the Allyn v. Fallbrook case should be called Falliburton due to its similarities to a case in which a Halliburton manager pleaded guilty to destroying documents after the BP Gulf oil spill.

] See also the early articles from 2012 about this case.

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