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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://pittsburgchallengers.org A. J. Fardella

    Let’s be fair.
    The rules state that Eberhardt, Lawrence and Rollenn can make these decisions at the dollar level of this case without approval or notification to the rest of the Board. I believe that’s exactly what happened.
    Then let them be held responsible for it.
    Let’s be fair.

  • Anon

    KTVU http://www.ktvu.com/news/news/mt-diablo-school-district-appeal-judgment-bus-drop/nGF2Q . . . Rolen claims child was dropped off close to a residence in the company of other children and other adults . . . really?

  • Theresa Harrington

    According to the district’s legal response to the lawsuit, Isabelle was dropped off “with other district students who had parents/guardians waiting.”

    “Her stop was just down the road, approximately 100 (sic) down Fieldgate Drive,” the district’s response states. “Isabella (sic) was not met by her day care provider. Instead, according to parents’ claims, Isabelle was left unattended in her neighborhood for 45 minutes until she was found with an ‘elderly woman’ by her mother and one of her day care providers.”

    Della Rocca told me that Isabelle may have initially thought she recognized the neighborhood (she lives in a tract sort of development where many homes look similar). However, after she got off the bus, she realized she was not near her home and she did not know where her house was. Although she may have been dropped off with other children and adults, no one was there to meet her or to help her find her way home.

    The bus driver told the judge that she watched Isabelle walk down the street by herself and later learned the girl was lost.

    Rolen says on the newscast that the district did nothing wrong. Yet, he told the judge the district had changed its policy as a result of this incident. The judge described this is “subsequent repairs.”Is it necessary to make subsequent repairs if you have done nothing wrong?

  • Wait a minute

    With Rolen so apt to put his foot in his mouth I don’t see why some hot shot private attorney/litigator doesn’t try and get several victims together and try and certify a class-action lawsuit.

  • School Teacher

    I like how Whitmarsh was sure to mention in her comment that it was a “general education” student that was left unattended. I guess that makes it not so bad. And, was the student really left “just a few houses from where she lives?”

  • Doctor J

    When the school board gets an earful about not paying a paltry $1,085 judgment that potentially could escalate to $7,500 plus a $1,000 for a frivilous appeal, they will probably decide to try and settle for the original judgment. I hope that both AJ and Lisa have the courage to tell the Board: “That train already left the station.” The irony of Rolen appealling is that the Fardellas could not appeal, but now that Rolen filed the appeal, the can of worms is open. I hope those Board members who disagree with Rolen’s abhorent behavior in this case will state that publicly at the Board Meeting on Monday. NO MORE SILENCE FOR WRONGFUL BEHAVIOR !

  • School Teacher

    Maybe she should have been sure to add it was a “5 year old general education student”. That really will make it OK.

  • Theresa Harrington

    School teacher: The district claims that Isabelle was left “about 100 feet from her normal bus stop location.”

    However, the day care provider who was waiting for her told the judge that she never saw the bus or Isabelle while she waited at her stop.

    The district’s response includes a drawing marked “Exhibit B,” which shows an intersection of two unlabeled streets, with a dotted arrow going around the corner. It is unclear from this hand-drawn diagram how far away Isabelle was dropped from her original stop or from her house, since her house is not labeled and the stop is not labeled.

    Dr. J: It’s unclear if the board will get an earful. No one at the PAC questioned the superintendent about this incident.

  • g

    So ‘Tangient’ Rolen is actually saying that since she was dropped off near ‘a’ residence, and there were some people around that everything was just fine!

    Which residence Greg? Who were the people that were ‘around’? There are 30 people in Bay Point alone on the Megan’s list. Are there any living close to ‘a’ residence?

  • Doctor J

    If anyone else other than a school bus driver dropped off a 5 year old unattended in a strange neighborhood, they would be arrested for Child Endangerment. Why isn’t CPS or the police investigating this ? I agree with Lisa, this little girl could very well have become the next Jaycee Dugard. Thank God and Heaven she didn’t.

  • vindex

    BTW Theresa.. Fine reporting. You do the 1st amendment proud.

  • Theresa Harrington

    Thank you. I have just sent Rolen a PRA asking for the district’s engagement letter and contract with Crosby and Rowell.

  • School Teacher

    I’m going to split hairs again with wording. One version is “a few houses from where she lives”, the other is “100 feet from her normal bus stop.” Does it look like both can be right? On the surface they don’t seem to be super compatible, I’m not implying necessarily that they can’t be. Maybe at some point in time Mr. Rolen can have one of his kids dropped off in a similar fashion and see how he would respond to that.

  • g

    It wasn’t even stated as 100ft. It may have been 100 yards. In a Seeno neighborhood, where all the houses look very alike, either one is very far away when you’re only about forty inches tall.

  • Theresa Harrington

    According to the legal declaration by Angie Goakey: “Her stop was located just down the road, approximately two houses away.”
    The declaration refers to “Exhibit B,” which does not include street names or a label showing Isabelle’s regular stop. The hand-drawn diagram shows a dotted line going across the street and around the corner, with houses drawn in as boxes along the street. The arrow does not point to a specific house.

  • g

    Went back through some files looking for a laugh. Unfortunately, when this picture was taken, AJ didn’t know who he was dealing with in the new Superintendent, or what was really on their minds for Measure C.

    http://a2.sphotos.ak.fbcdn.net/hphotos-ak-ash2/25312_1449766322381_1179920097_1351123_3265784_n.jpg

  • Doctor J

    G new caption: “AJ Accepts $7500 Settlement for Bus SNAFU” And I use the last word in its true WWII interpretation. :-) Nice pic.

  • Theresa Harrington

    That is not A.J., that is former MDEA President Mike Noce.

    FYI, I have just posted an update related to the $1,000 cap. Rolen says there is no engagement letter or contract related to this case. However, he reiterated that the Crosby and Rowell has agreed to a $1,000 cap.

  • Theresa Harrington

    In San Francisco today, an 8-year-old boy was dropped off at the wrong location by a school bus: http://abclocal.go.com/kgo/story?section=news/local/san_francisco&id=8492231#&cmp=twi-kgo-article-8492231

  • g

    My apologies to all—I thought that was A.J. in the picture, but just carrying a few extra pounds. I’m embarrassed! Can someone please photoshop-fix it for me?

  • Theresa Harrington

    This proposal by Trustee Cheryl Hansen would allow the public to give input into the superintendent’s evaluations: http://esbpublic.mdusd.k12.ca.us/com/print_item.aspx?itemId=4829

  • g

    Poor Cheryl. Bringing this up right after Sherry suggests cutting Board meetings to once a month! The audience may make a whoop, but except for the sound of deep sighs and rolling eyes, I imagine you’ll be able to hear a pin drop on the dais.

  • Wait a Minute

    Great idea actually.

    This proposal if carried out would be an excellent systematic way of ensuring that our elected leaders did more then just pay lip service to the broader people whom they are supposed to serve and not just be beholden to boards who may not have the public good in mind.

    I think this should be required by law for all elected and reviewed by boards public leaders.

    I predict this will fail on a 3 to 2 vote. You can guess who will be part of the 3.

  • Doctor J

    @TH#68 A little photoshop and it will be AJ ! Certainly could end up being the next parody of MDUSD !

  • Flippin’ Tired

    Board meetings once a month? Does that mean we get to cut their benefits and compensation in half as well?

  • Realia

    Silly Flippin’. Only the little people get their benefits and compensation cut.

  • Curious

    I am confused as to why kids are still being bused? I thought that was done away with, except for NCLB. And even in that case, i thought it was school to school transport.

  • Theresa Harrington

    Apparently, some students are still bused to and from Delta View Elementary because it is so far from their homes (but they have to help pay the costs).
    As Whitmarsh said, this service may end as transportation funding is cut more by the state. In most parts of the district, parent-supported busing has already been eliminated due to budget cuts.

  • Alicia M.

    A.J. – Thank you so much for speaking in support of me at the 2010 Measure C special meeting. It meant a lot to me, and I apologize for any resulting backlash.

    On a separate note, thank God your baby girl was safe. The judge was correct in awarding your family compensation, although I think it should have been for more. The district’s appeal appears to be a “slap suit”. It’s another example of why they shouldn’t have control of public funds.

  • http://pittsburgchallengers.org A. J. Fardella

    From my investigation looking purely at the evidence;

    The bus never traveled down Fieldgate that day, there were 3 people with a constant eye on the street or at the bus stop that day. A school bus was never seen.

    When the Spanish speaking woman who Thank God, brought our daughter home that day rounded the corner it was the Northern corner of Havenwood. Everyone concerned was mobilized in the middle of the street at this point ready for police to arrive and start a search for Isabelle (I was still enroute). So several witnesses saw Isabelle and this woman round that corner.

    The other factor in the evidence we do know is the time-line. 45 minutes. That’s how long my daughter was missing, no-where near her stop or the entire street of Fieldgate. So how far can a 5 year old walk in 45 minutes, 3.1 MPH average human walking speed, which I will cut to 1 MPH here considering her 5 year old legs, so Isabelle could, at minimum, have been up to 3/4 of a mile away from the bus-stop.

    I believe Isabelle was dropped off on OakPoint Drive or Brooktrail, above Fieldgate, or further out in that direction. Over 1/4 mile from our house. This allows time for her to encounter the good Samaritans and walk home.

    Simple deduction. Regardless of the bus drivers testimony the evidence is irrefutable.

  • http://pittsburgchallengers.org A. J. Fardella

    Alicia-

    Thanks for your kind words.

    Remember how I closed my remarks that evening, anyone who acted in a corrupt manner will eventually be held up to the law. I cannot comment beyond that.

  • http://pittsburgchallengers.org A. J. Fardella

    Theresa-

    Absence of a signed written fee agreement is a direct violation of the California Bar Rules except under condition of emergency, which this situation does not meet the requirements of.

    So Rolen admitted this to you?

    More great lawyering. Another reason for his dismissal. It also speaks to his desperation not thinking this out before he opens his mouth.

    There’s another item for my Cal-Bar complaint, I guess now I will have to include the MDUSD attorney and law-firm in my complaint to them.

    Is this amateur hour or one of the biggest School Districts in the Bay Area?

  • g

    A.J.: Thank God your baby was found by a nice person!

    Think of the 400 babies in North Concord who were entirely stranded by the district when they closed Holbrook, and provided NO, NADA transportation for 5-6-7-8-9 year olds. Some of them walk 3/4 of a mile, across Port Chicago Highway to Sun Terrace Elem. AND many have to walk up to 1.72 miles, across Willow Pass Road to Wren Elem. Now that is what many of us call stranded!

  • Doctor J

    Anyone want volumes of complaints about bussing ? Contact or request the emails of Principals Gretchen Jacobs of Sun Terrace or Nancy Baum of Delta View about bus problems. I heard that Gretchen even showed up one morning and rode the bus to see what the problem was. The routes are overloaded and students are missing thousands of minutes of instruction every day and many miss their breakfast which is required by Federal law to be provided. Lets stop the coverups. Lets get the truth in the open.

  • Doctor J

    Hey Board, Action item 4.2 Fardella v. MDUSD, is now $7500 not $1085 because your genuis lawyer “appealed” a nominal small claims action and has it set for “new trial which cancelled the small claims judgment. Rolen is “brillant”. Board, you are getting your full $220,000 worth from that guy — he spent TWO days in court covering up his incompetency. Board, you made your own bed, now you have to sleep in it. Watch out for the bugs.

  • g

    Dr. J. Where do the children come from that are bused to Sun Terrace? I can only think of Clyde, and maybe a couple SpecEd. Are there other neighborhoods being bused? My Holbrook school neighbor walks 1.5 miles with her 2nd grader, pushing a baby in a stroller, with one in the oven, to get to Wren. When she knows she’s going to be late, or the weather is bad, she just calls the child in sick. These are good, caring, one income, one car, homeowners, with limited English. There must be dozens of cases like this in North Concord.

  • http://pittsburgchallengers.org A. J. Fardella

    G-

    I know my 13 year old autistic son Nicolaus had NO transportation at all the first week of school, I had to drive him.

    The first day I was on my way down Leland and saw a brand new MDUSD short bus parked on the corner of Woodhill. I turned around to speak to the driver, she said she was looking for our house to pick up Nicky. I showed her the house and told her I brought him already (I was returning from driving him to Sequoia Middle).

    Never saw her or a District bus again.

    We are very happy now with the Independent Contractor who now provides Nicky’s Transportation.

    The Safety of our kids is alleged priority 1 by the District. From what you tell me here G, sounds like it’s not. It is time for the District to get a real person who knows what they are doing to run the department as it should be.

    It is a shame that the long tradition of Gasoline Alley and what has historically been a strong department of MDUSD, Transportation, has fallen so far under poor leadership and administration.

  • http://pittsburgchallengers.org A. J. Fardella

    Doctor J-

    Again, couldn’t agree more!

  • Doctor J

    I think they are NCLB, Special Ed and some others. Ask Gretchen which route she rode !

  • Anon

    A law firm that would work on superior court litigation for a $1,000 cap must have another reason for that accommodation. Filing fees alone could be more than $1,000. In this economy law firms are going out of business right and left. Crosby & Rowell must make a fortune from MDUSD on other cases, or they have a severe intelligence deficit. In either case they shouldn’t be representing MDUSD on this. The district should pay the judgment which was decided by A JUDGE weighing the facts, take its medicine, and make sure this never happens again to another child. What is the district’s job anyway?!

    MDUSD = where kids are a nuisance

  • Theresa Harrington

    After my story ran, I heard from a special ed parent who said her son was once on a bus for two-and-a-half hours and she didn’t know where he was. When she called the transportation department, she was told: “Six other parents are whining about this too.”

  • Flippin’ Tired

    Angie Goakey, transportation, can give you statistics on who gets bus service, how many students, etc. 925-825-7440. I believe it is Special Ed, NCLB, and overflow students who are entitled to free transportation per fed and state laws. I am unsure of any others entitled.

  • Theresa Harrington

    The report Greg Rolen gave to the CAC included some statistics, but does not appear to be a complete overview of the district’s bus service: http://www.ibabuzz.com/onassignment/2011/11/12/more-details-about-mdusd-busing-special-education/
    In fact, Rolen has never presented a report to the board about transportation, as requested by then-Board President Gary Eberhart after one special education parent complained that his son was left stranded with no bus.
    Trustee Cheryl Hansen is proposing that the board adopt an “Accountability Progress Report” that would require the district to report on the progress of board actions: http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=4830&mtgId=335
    This would include reporting on how well the district achieved its money-saving goals that were presented by Rolen as justification for discontinuing the contract with Durham Transportation for bus services. Instead, Rolen presented this spreadsheet, which does not explain the full extent of the changes and current service: http://esbpublic.mdusd.k12.ca.us/reference_library/attachments/19e21fdb-d1e0-4dff-86b6-8b98500f21ca.pdf
    The public deserves a detailed accounting of the district’s bus services and costs, including a written report that explains the district’s charts.
    When you look at the County Office of Education’s agenda report regarding the CVHS charter petition, you can see how a comprehensive staff report should be written: http://www.cccoe.k12.ca.us/supe/12mtgs/CVCHSFindingsofFact.pdf
    There are no gaps in information. It is thorough, yet concise and well-presented, with back-up documentation from the California Department of Education and state Education Code. The public is not required to read between the lines or try to guess what other pertinent information may be missing.

  • g

    Board Action Accountability Progress Report.

    …can the public submit Report requests?

  • Anon

    For anyone else who attended the CCBOE meeting last month … I did. And WOW, I received in the mail a full packet of minutes, and agenda for the next meeting. So thorough, they recap all the public comment, note everyone who signed in, everyone who provided correspondence. Now that is how to run a board.

  • Theresa Harrington

    g: According to Hansen’s proposal, the public wouldn’t have to request the reports because they would be posted online.
    This should also include an accountability report that shows whether the district met its goal of cutting $1.5 million from its budget through school closures, which has never been shown to the board or the public.

    Anon: Yes, the county is very thorough. Also, it posted the agenda materials early — as requested by the board — so that trustees and the public would have six days to review the materials (instead of the minimum 72 hours).
    Trustee Pam Mirabella forwarded emails that she received to the board clerk so that they could be included as part of the public record. MDUSD trustees never do this, although they should. The public has a right to know who is lobbying trustees behind the scenes, as well as what they are saying.
    In fact, one person asked if there was a way to submit comments without having them be part of the public record, saying some parents might not want others in the community to know their views. That is not the way public agencies are supposed to work.

  • Wait a minute

    Well, the CCCBOE is obviously a highly professionalized and well run organization and Cheryl Hansen’s positions and actions as an MDUSD Trustee reflect that inherent professionalism.

    The MDUSD would do well to emulate the CCC Office of Education/MDUSD’s BOE would be equally well served to emulate the CCCBOE’s integrity and transparency and professionalism.

    If they did, then their motto of “Where Children Come First” wouldn’t ring hollow as it does now under the tyranny of the Eberharts and Stevie Lawrences of the MDUSD.

  • Theresa Harrington

    Hansen wrote a letter to the CCCOE board saying that she chose not to speak at the first charter public hearing because she wanted county trustees to hear all the same public comment she has been hearing over the past few months.
    I believe Trustee Linda Mayo and Board President Sherry Whitmarsh spoke against the charter at the last public hearing.
    It will be interesting to see if the district tries to refute the county’s findings and continues to push trustees to uphold their denial.

  • Theresa Harrington

    FYI, the special education Community Advisory Council will meet at 7 p.m. tomorrow, according to the CAC blog: http://mtdiablosped.blogspot.com/2012/01/cac-meeting-new-day-tuesday-january-10.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+MountDiabloUnifiedCommunityAdvisoryCommitteeOnSpecialEducation+%28Mount+Diablo+Unified+Community+Advisory+Committee+on+Special+Education%29

    Unfortuntately, the agenda is not posted on the blog. It is also not posted on the district’s website (or mentioned in the upcoming events calendar): http://www.mdusd.org/Pages/default.aspx

    However, I have been assured by Mildred Browne’s administrative assistant that it was posted outside the district office within the 72-hour notice time frame. Do you think the district should post CAC agendas online?

  • Theresa Harrington