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Should Mt. Diablo school district appeal $1,085 small claims judgment?

By Theresa Harrington
Wednesday, January 4th, 2012 at 1:10 am in Education, Mt. Diablo school district.

After A.J. Fardella learned that the Mt. Diablo school district planned to appeal a small claims judgment for $1,085 based on a lawsuit alleging the district was negligent when a substitute bus driver dropped off his daughter at the wrong spot, Fardella sent the following email to the school board:

“Sent: Sat 12/31/2011 10:09 AM

Subject: Message to MDUSD School Board Regarding School Bussing Nuisance/Negligence Case

Esteemed Board Members,

I was appalled to see that the Mount Diablo School District has decided to appeal a judgment of $1,085, which was compensation for the Transportation Department’s losing my five year old daughter on October 5th of 2010. The District has decided to fight this battle using a partner of outside counsel, Crosby and Rowell, the firm is notably a contributor to the Measure C campaign. Strangely, this case never appeared on the District’s meeting agendas for closed session, as all pending litigation is required to be. Is this then a unilateral action on the part of General Counsel Rolen?

In order to conduct this appeal, the District will be paying legal fees that far exceed the negligible judgment amount. As this is a trial de novo, the District will be using school district resources and witnesses, as they already did in the last TWO hearings on this matter. The District’s General Counsel, Greg Rolen, was ALREADY in court on two days in excess of five hours. Isn’t he the District employee who is supposed to be running your transportation department, which is the essence of this suit? As court records submitted by Rolen on behalf of the District, point out Rolen himself conducted the investigation of the incident in question. This is an obvious conflict of interest, and against Administrative procedure concerning IG type investigations. Further, why was he in small claims court in the first place? The judge admonished him for appearing, reminding him of the clear case law prohibiting attorneys to appear on behalf of clients in small claims.

District General Counsel Greg Rolen, after testimony of our witnesses, admitted negligence on the record. Consequently, this appeal was only brought to harass our family, which we have every intention of proving in court. What makes this especially poignant is that the appeal was filed just three days before Christmas and in retaliation for our contacting the school board and the press on December 21st with regard to this matter.

Is this how the District and its General Counsel spend our money? I don’t think the Mount Diablo voters will respond well to (1) this lack of accountability in a potential Jaycee Dugard scenario and (2) waste in an era when our children don’t have enough desks or school supplies!

Sincerely,

A. J. Fardella”

According to the board-approved contract with Crosby and Rowell, partners are paid $185 per hour.

Do you believe the district is spending its time and money wisely fighting this judgment?

JAN. 4 11:10 p.m. UPDATE: We have added video of Della Rocca to our online story: http://www.contracostatimes.com/news/ci_19670621?source=most_viewed.

Also, I spoke to Board President Sherry Whitmarsh and Trustee Lynne Dennler about this issue after tonight’s Parent Advisory Council meeting (no parents asked about it).

Dennler said she didn’t know about the lawsuit or the appeal before receiving Fardella and Della Rocca’s emails and reading about it in the newspaper, but she said she intends to ask district staff about it.

Whitmarsh said she agreed with Rolen’s decision to appeal. She pointed out that the law firm has agreed to cap its costs at $1,000 to “look at” the issue.

“It is a regrettable situation that a general education student was left off a few houses from where she lives,” Whitmarsh said.

Whitmarsh said she has asked Rolen to look at what could be done to improve the busing system. However, with the state transportation cuts, she predicted the district will transport fewer non-special education students in the future.

JAN. 5 UPDATE: After learning that the law firm of Crosby and Rowell had agreed to a $1,000 cap on its fees, I sent a Public Records Act request to Rolen, asking for a copy of the engagement letter and contract related to this case, since the district’s standing contract does not specify any caps.

Rolen responded that there is no separate engagement letter or contract and that the firm has agreed to bill the district at $185 per hour up to $1,000.

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  • http://ohcg.net A. J. Fardella

    Theresa-
    of course they should be online. more people have online access than any other means.
    Shameful that all these meeting agendas etc aren’t available online. The law needs to be modified to keep up with the times.

  • Theresa Harrington

    Yet, most of Trustee Cheryl Hansen’s reform proposals died tonight for lack of a second.

  • A. J. Fardella

    Theresa- That Says volumes, She’s the one to hold onto then. Other folks sitting on the other side of the podium want to make it as difficult as Possible for the public to keep them accountable.

    I have time. I plan to live long enough to see many happy changes in the future. I hope.

    Thanks to everyone for their vigilance.

  • Theresa Harrington

    Hansen agreed to postpone discussion of her proposal for public input into the superintendent’s evaluation until the next meeting. Also, there was quite a lengthy discussion about her accountability report proposal, on which I believe trustees will vote at the next meeting.

  • Linda L

    Theresa,
    I could not attend the meeting last night. I am curious about the outcome of 13.5, 13.6, and 13.7. I am also interested in the outcome of 13.8 and 13.9 but it sounds as if both of those will be on the next agenda (or future agenda).
    Were all of these proposals submitted by Ms. Hansen? Did any receive seconds?
    Do you know if there will be an opportunity for public comment at the upcoming board retreat on collaboration?

  • Theresa Harrington

    Linda: Sorry I stopped blogging at that point because I had to file my short story to the Times about the QEIA waiver.
    13.5-13.7 all failed for lack of a second.
    13.8 and 13.9 will appear on the Jan. 23 agenda for action. There was no discussion of 13.8, but there was considerable discussion about 13.9, with Trustees Gary Eberhart, Linda Mayo and Board President Sherry Whitmarsh questioning whether it would be overly burdensome. Whitmarsh suggested a $250,000 minimum. Hansen appeared to be pleased that they were willing to at least discuss it. I don’t believe Dennler commented on it.
    Yes, all of these proposals were submitted by Hansen.
    I don’t know if there will be an opportunity for public comment at the board retreat, but I’ll ask.
    Most notable at the meeting was the solidarity among CST workers who believed the district built up its large reserves based on cuts from their hours and paychecks. Now that the district is no longer facing deep midyear cuts or furlough days, they want pay and hours reinstated. Several stood with “No Confidence” signs, although I don’t believe they have actually voted no confidence.
    I am beginning to hear rumblings from people who are hoping for changes on the board and in top district administration by the end of the year.
    I noticed that Brian Lawrence, who ran and lost in the last election, was in attendance at the meeting last night.

  • g

    Without a copy that was readable (and as required by law), Isom’s shyster schtick power point, punctuated with apologies for it being unreadable…was useless to us, while being invaluable to them. They can again tell the Grand Jury “Oh, but we did present it to the public in open forum”! Damn, what does it take to actually be able to follow along, or have things published online in advance?

  • Theresa Harrington

    g: The district has posted Isom’s presentation online: http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=4828&mtgId=335.

    However, I agree that it would have made more sense for this presentation to be a publicly noticed agenda item, instead of slipping it in under the Superintendent’s Report, with no advance notice to the public.

  • Doctor J

    Funny how it looks like it was part of the noticed Agenda. Vaudville in the 21st Century.

  • g

    Theresa, “slipping it in under the Supt’s Report” was a very polite way to put it.

    Funny, I had the Agenda Open at that item and the report was not there, then I refresh, and voila!

    And, at last the dreaded 2041 pops in. Let’s see; the CUES/board will be doddering old fools (as opposed to just fools), their kids in high school now will be pushing 50, their grandkids will live in cubical sized condos, and yet–all will still be paying for what we call schools now, but will be calling pothole filler by 2041! Good Job!

  • g

    Yes, Dr. J: and I still don’t have a working printer. Theresa, did you happen to capture a copy of the original Item for the 2012 Grand Jury Inquiry?

  • Theresa Harrington

    No, I don’t normally click on the Superintendent’s Report, since it usually doesn’t include any additional information.

  • Doctor J

    The hard copy of the posted agenda maintained by the Board Secretary [Lawrence] should be correct unless they have now substituted it for the revision the day after the meeting.

  • g

    Theresa, I agree. The public generally doesn’t look for important news or Measure C info to come from the Supt’s Item.

    Realizing this, no doubt that is why it was so carefully camouflaged there, with no copy for the Board, or presentation to the BOC first, or anything proper like that.

    However, I’m pretty sure I clicked on and read every Item this time, and I do not believe that info was under Supt. Report on Fri a.m. thru Sat p.m.. I did not look again after that–so was shocked when Lawrence introduced Isom last eve, after it was too late for those interested in Measure C matters to make it to the meeting.

  • http://ohcg.net A. J. Fardella

    (reposted from Theresa’s live blog from last Board Meeting 1-9-2012)

    As far as the Measure C ‘presentation’

    What is important for Taxpayers to see is that this refund of Bond proceeds in excess of projections, only puts more dollars long term into the Bond issuers pockets. That money properly used would pay down the principle to escape 50 years of the Montel Williams style Bond structure which has us paying 1.8 Billion dollars for borrowing 350 million.
    Since the Board and our Superintendent are in bed with Bond issuers, so goes the action of the District. Of course they sell propaganda to the public as a big boon for the taxpayers…. in the long run, not at all, it just means we’ll pay every penny of this ridiculously conceived bond so the Bond issuers get their money and in the long run Taxpayers are deprived of more of theirs.
    Fiducially irresponsible on the part of the Board and Staff, with our kids suffering the Bondage of this atrocity (every pun intended).

  • Theresa Harrington

    Just to clarify, the post by AJ is a reposting of his own comments at the end of the live blog.

  • g

    Ms Dennler has now had two weeks to borrow an opinion from “staff”. Did she get one yet?

    It really isn’t a hard question Ms Dennler.

    Should the District have simply (and quietly) apologized and paid the $1085. judgement? Or should the District have decided to drag the dead carcass through the streets and cause, yet another, stink at Dent by having to most likely pay the $1085. judgement PLUS another $1000. or so to their campaign donating law firm buddies?

  • Theresa Harrington

    Board President Sherry Whitmarsh reported that trustees did discuss this case during closed session at their last meeting.

    However, trustees often decline to comment on “pending litigation.” I haven’t had a chance to ask Dennler since then if she supports staff’s decision to appeal.

  • g

    However, it was on the Agenda as: Action Item under “Existing Litigation”. We are entitled to a Report of Action Taken.

  • Doctor J

    I think Lynne Dennler’s failure to appear at the County BOE appeal on the charter shows she is losing interest very quickly in being on the School Board which is divided, trying to manage crisis after crisis, and has fire after fire to extinguish. She clearly was not prepared emotionally for the task at hand. At the behest of Linda Mayo, Lynne chooses not to read the blogs to understand what the issues are, and has no interest in finding solutions to the many crisis situations. Yes, even the teachers in the district are losing faith that she would stand for their interests.

  • g

    Double checked, listened to the audio of the meeting. Whitmarsh breezed right over the Fardella case without reporting Action, but reported out the votes taken on the two personnel dismissals.

    An absolute violation of the Brown Act. Whitmarsh needs to be very careful to not fall into the bad habits of Eberhart style cover-up. The Grand Jury is watching.

  • Doctor J

    @G, perhaps we just need to flood the CC District Attorney’s office with Brown Act complaints until they get the hint ! Or perhaps under Robert’s Rules of Order, a citizen needs to stand up in the middle of the meeting and call “Point of Order !” and demand that President Whitmarsh address the issue before moving on.

  • g

    It isn’t just Brown Act. In circumstances where the Brown Act is not clear or sufficient, the County has its “Sunshine Law”.

    For instance:

    Contra Costa County Sunshine Ordinance 25-2.402 (b) (3) Closed sessions: pending litigation–

    (c) Legal advice as to the potential risk of litigation of actions not yet taken, if provided by counsel at a meeting of a policy body, is to be conveyed openly as a matter of public record.

    (d) A closed session may not be held under this section to consider the qualifications or engagement of an independent contract attorney or law firm, for litigation services or otherwise.”

    —–

    In other words, having a general contract with an outside attorney does not mean the district can use them on specific cases without public disclosure of the potential “risks” and “costs” of possible litigation.

    Any decision to pay the law firm of Crosby and Rowell any amount of money must be made in Open Session. They do not have to openly discuss the evidence—just the “risk” and “cost”.

    EVEN IF the Board has permitted the Superintendent to spend up to $25,000.00 for necessary “school related” expenditures. School related costs do not include “Litigation” or attorney engagement.

    Perhaps someone from the County with legal expertise would like to weigh in?

  • frustrated

    Dr. J. If you are so unhappy with MDUSD, why not leave the district office and move on?

  • Anon

    Dr. J should stay as our fox in the henhouse.

  • Theresa Harrington

    g: According to the superintendent’s secretary, no board action was taken on the Fardella case.

  • Theresa Harrington
  • http://ohcg.net A. J. Fardella

    It’s official-

    The MDUSD has dropped the appeal of the judgement in this case. It is a good thing for the District that a REAL lawyer (not Greg Rollen) looked at this case and advised the Board…. Oh NO….
    Evidently according to a letter from MDUSD counsel which accompanied the request to drop the appeal, “the Board decided on January 9th” in closed session to end the appeal in this case.
    There was other palaver from the District’s legal firm’s General Counsel, trying to portray the District as being so compassionate as to not want to “Cross-examine” a 7 year old.
    They misspelled my daughter’s name in this letter, and really were clueless as to the claims and basis for them, even though there was considerable pontification on their part in said letter.

    In any event the case is closed, and our victory stands.

  • Anon

    This is great news for you AJ. I just wish the district would have done this sooner. They can not afford to waste a dime on more attorney fees. I predict after all the blunders that Rolan and Lawrence will be gone soon. Hopefully they take all the other crud with them.

  • Theresa Harrington

    A.J., I will want to do a follow-up story about this.
    FYI, I received a letter from a couple in San Ramon that was so outraged by the district’s actions that they offered to pay your family the $1,085 if you lost on appeal. And they don’t even live in the Mt. Diablo district.

  • Wait a Minute

    Theresa,

    In your follow up I think you should also look at how did the MDUSD Board vote to settle this matter WITHOUT reporting this out at one of their board meetings!

    I believe this is a clear-cut violation of the Brown Act and while I’m very happy for A.J. and his family that they won this case I’m still very concerned at the routine violations of the Brown Act by this board.

  • Theresa Harrington

    WAM: This is a good point. Board President Sherry Whitmarsh merely reported that the board had discussed the case. Since the agenda item stated that action would be taken, I called the superintendent’s secretary after the meeting and asked if there was action taken. She said there was no action taken. Board votes are supposed to be reported out to the public and I will follow up to find out why it wasn’t.

  • Doctor J

    A. J. be sure to add daily interest calcuated at 10% per year but accrues daily until paid — don’t be cheated one cent. You deserve every cent. I hope you take the check and have it blown up to one of those mega checks.

  • Theresa Harrington

    Rolen said the district was right to appeal: http://bit.ly/xyhgpr

  • Doctor J

    Send the check back if they didn’t add daily interest until you received the check ! Rolen can’t accept responsibility for any of the transportation mess he is in charge of.

  • Theresa Harrington

    Another bus mixup happened this morning, when an MDUSD bus driver was apparently told by the district’s transportation department the wrong time to pick up Northgate Jazz Band students for a trip to the Amador Valley HS Jazz Festival in Pleasanton. Due to the lateness of the bus, students nearly missed their scheduled performance and had to forfeit most of their warm-up time. Parents said next time they use an MDUSD bus, they plan to ask the bus driver to call them an hour before the pickup time, so they can be assured a bus is on the way.

  • http://www.bellfolsom.com/ personal injury lawyer kansas

    OMG this is rediculous! We have had SO many problems with the Mt. Diablo Transpotation department! I hope this Mother does not back down and puts up a good fight! More power to ya Momma!