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BANG v. MDUSD lawsuit lays out chronology of abuse suspicions, charges, claims and reporting related to Woodside Elementary teacher

By Theresa Harrington
Thursday, October 17th, 2013 at 11:05 am in Education, Mt. Diablo school district.

JOSEPH ANDREW MARTIN

A lawsuit filed against the Mt. Diablo school district last month by The Bay Area News Group provides a comprehensive look at the circumstances that led to Woodside Elementary teacher Joseph Martin’s arrest and the subsequent claims made against the district.

As reported by Times writer Lisa Vorderbrueggen, Bay Area News Group is asking a judge to force the district to release internal records about Martin, 45, who has been charged with 125 counts related to the alleged sexual molestation of 13 young male students between 2006 and April 2013. He was arrested in June and is in jail on $10 million bail. He pleaded not guilty in July. If convicted, he faces life in prison.

The district has refused to produce documents pertaining to Martin, citing personnel and investigatory exemptions in California’s public records law. The news organization argues in its lawsuit filed in Contra Costa Superior Court that the records are not exempt and must be produced.

BANG attorney Duffy Carolan’s 175-page lawsuit includes a 12-page complaint that outlines the chronology of the state’s case against Martin, along with three subsequent claims and a civil rights lawsuit. It also details investigative reporter Matthias Gafni’s attempts to get records related to Martin from the district.

In a June 29 Public Records Act Request, Gafni sought: “Any and all writings pertaining to Mt. Diablo Unified School District teacher Joseph Andrew Martin, 45, relating to allegations of wrongdoing (including inappropriate behavior with students), complaints, investigations, findings, discipline meted out or other action taken against Mr. Martin during his tenure at the district.”

BANG is seeking district investigations into incidents that were allegedly witnessed and reported to district officials by other teachers. For example, one complaint alleges that a teacher walked in on Martin and a male student one evening and saw that they were behind a closet door with their shoes off. Another teacher said older boys who had graduated often returned to the campus and went into Martin’s room alone, with the classroom door locked, according to claims.

In the most recent claim, a 2013 police report is quoted, which cites a 2006 internal district document that found “potential child abuse” by Martin. The police report says no one from the district reported Martin to Child Protective Services or to law enforcement authorities at the time. Instead, the district created new rules for Martin, such as keeping his classroom door open at all times, according to the claim.

Here is the complete lawsuit: https://docs.google.com/file/d/0B6mS2O1_NKceZU5UbDZYenlsdVE/edit?usp=sharing

This is not the first time BANG has requested personnel-related documents from the district. In the past, I have received large files from the district in relation to personnel decisions that led to separation agreements with employees. These files contained numerous memos documenting complaints and meetings to remedy those complaints. No such documents were released to BANG in relation to Martin.

And earlier this year, Times columnist Dan Borenstein asked the school board to review documents that were withheld from his Public Records Act request by then-General Counsel Greg Rolen. Borenstein asked trustees to waive the privilege asserted by Rolen and to release documents related to employment agreements with then-Superintendent Steven Lawrence, Rolen and three other top administrators. As a result of Borenstein’s appeal directly to the school board — which bypassed the general counsel — trustees agreed to release more documents.

In this case, too, the board has the right to override Interim General Counsel Jayne Williams’ denials and release documents that are being withheld, in the interest of public transparency. Trustees Barbara Oaks and Brian Lawrence were elected last November, after pledging to usher in a new era of transparency in the district. They — along with Board President Cheryl Hansen — voted to terminate the previous superintendent’s contract a year early, in part due to mistrust in the district that resulted from secrecy and stonewalling public requests for information.

Further complicating this case is the fact that previous Interim Superintendent Johh Bernard is the father of Jennifer Sachs, who was principal at Woodside Elementary in 2006 and is named in some of the claims. Trustees hired Bernard soon after Martin was placed on a leave of absence. Bernard worked through the end of September, during the time when Martin was arrested and alleged victims began filing claims against the district. He told me that the district would cooperate fully with police and his relationship with Sachs would not affect the investigation.

Newly appointed Superintendent Nellie Meyer, who took the helm Sept. 23, has entered into a contract with Bernard’s employer — Total School Solutions — for nine months of consulting as she transitions into her new role.

Do you believe the district should release documents that it is withholding related to internal complaints about Martin?

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  • Doctor J

    So after placing Martin on Admin Leave on April 25 due to the sexual abuse criminal investigation, the “district” sends a letter to parents saying Martin “returned to Kansas” for a family medical emergency and would not be completing the year. Which District person signed that lie ? Has anyone a copy of that letter that can be posted ? Why wasn’t that letter produced by the district with the others ?

  • g. de la verdad

    But The Tin Man, The Cowardly Lion, the Scarecrow and the legal Wizard himself were left behind in OZ, where the board eventually, after much debate, finally took a cover-up action in an attempt to preserve the last dregs of district dignity—leaving the taxpayers (including the tax-paying victims) to ultimately pay the bill….

  • Phoenix

    I think it is a close call under the Marken case; see link to case below. Williams has a legitimate claim that the documents are exempt from disclosure under the PRA. BANG’s argument that the public’s right to know outweighs the interests protected by the exemptions of the PRA will probably succeed under the Marken case and the cases cited therein:

    http://www.leagle.com/decision/In%20CACO%2020120124042

  • tmharrington

    As previously pointed out, the board could also decide that the public’s right to know outweighs the interests protected by the exemptions, saving a costly court proceeding.

  • Phoenix

    Sure, they can always do that. But it opens the door to the Board being always asked to override a decision to disclose documents exempted under the CPRA, which is a slippery slope. Sometimes the public’s right to know is not outweighed by privacy rights. I also don’t think avoiding the cost of litigation is always the measure by which to make decisions; some legal issues need to be litigated.

  • Doctor J

    In this case, every dollar spent on litigation, deprives children of education. So if MDUSD spends $250,000 [or more] of public taxpayer money on attorney fees for itself and BANG [yes, we will have to pay their fees], that is $250,000 that won’t get to the classroom. My vote is simply tell the truth and produce the documents and let the chips fall where they may. Its time to stop the cover-ups — after all, the cover-ups caused 95% of the problems. Lets try a new tactic — TELL THE TRUTH. Sometimes the doctor has to amputate to save the rest of the leg. Sure, a few administrators and teachers may have egg on their face, hurt their careers, but they made their beds — now let them lay in them. Lets start the healing and put our resources and efforts into reforming education in MDUSD.

  • Doctor J

    Who signed the letter ? Lets see a copy.

  • Doctor J

    Looks like Interim Principal Ava Sudduth didn’t even last the whole first month of school at Woodside, having now been replaced by also experienced Sandy Brickell, now listed on the school website as the “Interim Principal”. Opening for Woodside principal still listed on Edjoin as open, having been first listed on August 9 despite the secret reassignment of Jen Cronan more than a month earlier. Such instability has to be unsettling to the children and parents and staff of Woodside.

  • Phoenix

    Dr. J, I agree with you that in this case, it is best to just produce the documents because you are correct that BANG will probably prevail and MDUSD could be on the hook for their attorneys’ fees [not automatic; court still has discretion not to award fees to BANG even if they prevail]. I want to point out the other side of the argument on producing investigation reports. Investigations are supposed to be confidential, and witnesses are reluctant to tell the truth to investigators for a myriad of reasons if they believe their statements will not be kept confidential. If a school district has a practice of always producing investigation reports pursuant to PRA requests despite the exemption in the Act, it will have a chilling effect on the District’s ability to get witnesses to cooperate and tell the truth during investigations, because they will be afraid their statements will not be confidential. That impedes the District’s ability to investigate employee misconduct and to discipline or dismiss employees where necessary. It’s not a black and white issue of just telling the truth, and there are a number of factors to consider when determining whether or not to release an investigation report.

  • Doctor J

    @PHX, very insightful, thanks. Seems to me that the witnesses giving a truthful and full statement to the investigators early on in the case is more likely to allow quick settlement of the case and avoid the witness having to give “public” testimony in court or depositions. Doesn’t the real problem arise when the statements of co-employees are “contradictory” each pointing the finger at the other ? But there seem to be a whole list of good reasons to settle the case early, and certainly that would be in the best interests of the children victims, the schools, the staffs, etc. — all of which will allow the “healing” to begin quicker and move on.

  • tmharrington

    Also, the district could redact certain information if it believes it would compromise confidentiality. Then, BANG might challenge the redactions, but at least we would have the bare bones of the report.
    As I previously mentioned, I have received personnel-related information — which did not include an investigation — in the past as a result of a CPRA. This included complaints from parents.
    Also, the board has already opened the door to direct requests to waive exclusions based on its handling of the Borenstein CPRA.

  • tmharrington

    Brickell, who retired after serving as principal of Sequoia Elementary for several years, is known for running a tight ship.

    Here’s the website listing her as interim principal: http://www.mdusd.k12.ca.us/woodside/Woodside_Elementary/Faculty_%26_Staff.html

  • Doctor J

    Redaction of student and minor’s names was accepted by Matt Gafni in his original PRA request, a copy of which was attached to the lawsuit.

  • tmharrington

    It’s possible there could be other information the district would want to redact as well.

  • tmharrington
  • Phoenix

    Investigations are focused on the complainant’s allegations; witnesses who support or refute those allegations; and the statements of the respondent/accused. It isn’t a question of people pointing fingers at each other generally; but a question of whether you have unbiased witnesses who corroborate each other to support a finding by a preponderance of the evidence. At the time of the investigation, the issue wasn’t who did or didn’t do a mandatory report; it was what the witnesses saw and heard. Redacting witness statements means taking out their name but leaving the substance of their statements. Many times the substance of what they say reveals their identity, and removing the name alone does not protect their confidentiality. Similar issues come up with reporters’ sources; many would not give information if they knew their identity would be revealed.

  • Doctor J

    @PHX, since you apparently have a legal background from the depth of your understanding, if the internal investigation also revealed that District personnel had knowledge of “potential claims” and these weren’t disclosed to the insurance company at each renewal of the policy, might that jeopardize the validity of the insurance policies, potentially putting the district on the hook for its own lawyers and any settlements ? If so, aren’t we looking at paying perhaps $20 or $30 million in lawyers and settlements ?

  • Phoenix

    It depends on what was known at the time of the renewal. If we are looking back at 2006/2007, because the investigation did not substantiate the allegation(s) of child molestation, there would not be a duty to disclose the matter as a potential claim. After that, it is unclear based on the lack of information about what the District knew between 2006/2007 and 2013. But you raise an excellent point, which is that insurers could try to find an exception to providing a defense to the District in this matter if there any reporting errors. I think it is unlikely that insurers will not provide a defense, as they would risk an insurance “bad faith” claim from the District which could subject them to punitive damages larger than the face of the original policy.

  • Doctor J

    Why PHX do you say the allegations were not substantiated in 06/07 ? I thought that was one of the big questions as to what was known in 06/07 when Jennifer was principal ??

  • tmharrington

    The district has brought forward a new social media policy that discourages teachers from communicating with students via these methods. But, perhaps it should also train administrators to better supervise staff.

  • Doctor J

    No comments on the Agenda for Wednesday ? How many times will it change before Wednesday ?

  • Phoenix

    Dr. J, I am basing it on the portion of the investigation report cited in the CC Times, in which it is stated as I recall, “This report would not be honest, and its conclusions not fully supported, if it did not acknowledge at least the potential of child abuse.” The conclusions that were fully supported were not conclusions that child abuse or molestation had occurred; they were something else; most likely that inappropriate/unprofessional conduct had occurred. The investigator was saying, I suspect there may be child abuse, but I cannot support that conclusion-but I have to say that the evidence suggests the potential of it. That left the District in a position where it did not have enough to dismiss Martin; so they put him on a remedial plan with directives. If the investigator had concluded by a preponderance of evidence that child molestation had occurred, they would have had to file charges against Martin for immoral conduct under the Ed. Code and move to dismiss him. Whoever’s name went on the 45/90 letter to Martin with is remediation plan is the person charged with making sure the plan was implemented.

  • Doctor J

    What I don’t understand, and perhaps PHX you can explain it, is if there was sufficient evidence to justify a 45/90 letter for dismissal, why didn’t anyone “report it” since there was obviously “reasonable suspicion” of child abuse ? And since there was a “remediation plan” that was supposed to be supervised, why wasn’t it supervised AND reported to CPS or the police ? Wouldn’t all of this have been in Martin’s employee file and should have been reviewed by each of the multiple principals at the school ? and known to both of the Asst Supts — Personnel and SASS ?

  • Doctor J

    How much does a “Simple” internal investigation cost ? Here’s a glimpse. How much does a much more complicated one like in the MDUSD Martin probe cost ? Maybe its time to find out. http://www.sacbee.com/2013/10/19/5835392/san-juan-unified-costs-mount-as.html

  • Phoenix

    Yes, based on the investigator’s report of “potential child abuse” it should have been reported to CPS under the “reasonable suspicion” standard for mandated reporting. Why wasn’t it supervised? We don’t know; I suspect that is where a lot of finger pointing will occur in discovery of the case. If you are the principal, you need to be keeping a close eye on the teacher. If you are the Asst. Sup. in charge of certificated personnel, you need to make sure the remediation plan is being followed. If you are the Superintendent, you need to make sure your Asst. Sup and your principals are doing their job to make sure the remediation plan is being implemented. Yes, all of the staff you refer to should have been following Martin. I wonder, did they try to move him out of 4th grade to a lower grade where the classrooms were more observable? Did the teacher’s union put up a fight about Martin’s remediation plan or fight to get it whittled down to what it was? Many questions which will be answered in the litigation discovery process.

  • tmharrington

    Shouldn’t the general counsel also bear some responsibility? He should have known the mandated reporting law and have advised district staff to follow it.

  • Doctor J

    What if the General Counsel told the employees they did not need to report it ? Does that “clear them” of wrong doing ? I don’t think so.

  • g. de la verdad

    I think it is highly likely that Rolen told everyone involved that no report was to – or would ever – go beyond his desk, if they did what he told them to do. It is also possible that nothing was ever put into Martin’s personnel file where another principal would see it. That doesn’t necessarily mean Rolen didn’t confide in a board member or two—but I doubt if the AALRR legal opinion ever went to the whole board.
    I’d like to know if there was any ‘hush money’ paid to the first family who made the first accusation, or if that student was moved to a different class/school. Did teachers at that time report their own suspicions, or are the teachers’ accounts that we’ve heard of only from more recent cases? Were any teachers who reported suspicions ‘conveniently’ transferred to different schools?

    Did I miss anything along those lines in the lawsuit?

  • tmharrington

    This topic is scheduled for further closed session discussion Wednesday: http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=7679&mtgId=386.

    The last time this was on the agenda, Board President Cheryl Hansen told me she did not know about the case and would find out about it for the first time during the Oct. 9 closed session.

    Potential litigation related to various J. Doe claims are also up for discussion: http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=7681&mtgId=386

  • g. de la verdad

    And, for the 3rd? or 4th? meeting in a row, they will discuss whether or not the district is going to “initiate” their own litigation against……someone.

  • tmharrington

    It appears that another Woodside Elementary fifth-grade teacher has only worked in the district since August, 2012: http://esb.mdusd.k12.ca.us/attachments/7c556410-a79d-4377-b071-ae16573acae7.pdf

  • tmharrington

    I see that the independent contract for MDHS requires the consultant to immediately contact the principal, designated administrator and the School Linked Services Administrator in the event a CPS or police report is necessary: http://esb.mdusd.k12.ca.us/attachments/a4d3201c-8a4d-4f99-80aa-6f72efcd5cba.pdf

    It does not say that the administrator should make the call, just that the administrator should be informed. It doesn’t specifically say the contractor should make the call either, so it’s a bit vague.

  • Doctor J

    Interesting that this particular contract “form” was adopted in 2009 — wonder what it said prior to that time with regard to mandatory reporting.

  • Phoenix

    I’d go back and read his job duties; it should cover advising employees regarding compliance with all laws applicable to school employees including their duties under PC 11165.7. I’ve heard Rolen and Sachs really disliked each other, and wonder if the alleged strained relationship had any impact on the investigation or implementation of the remediation plan. The facts will come out in the discovery process.

  • Doctor J

    Job duties attached to Board Agenda March 25, 2013, and footer says revised on 12-2-2008. http://esb.mdusd.k12.ca.us/attachments/2e1bf520-fc98-4d68-89f6-d6b16aa72760.pdf

  • tmharrington

    Just in time for tomorrow’s board meeting, the CCT has published an editorial demanding that MDUSD release the records sought in the BANG lawsuit: http://www.contracostatimes.com/walnut-creek/ci_24362937/contra-costa-times-time-mt-diablo-school-district

    Will promised transparency be abandoned in favor of a circle the wagons mentality, which has been evident so often in the past in the district?

  • tmharrington

    The 2013-14 Parent Handbook spells out the mandatory reporting law on page 24: http://www.mdusd.org/Departments/SpecialEducation/Documents/PIP%202013%20-%202014%20FINAL%209-9-13.pdf

    Did previous parent handbooks include this info?

  • Hell Freezing Over

    TH – this contract also mentions YVHS – see the services page.

  • Doctor J

    In a recent blog, I gave the link to the 2012/13 Parent Handbook — not sure if its in the “old” or “new” blog.

  • Concerned13

    That’s not exactly how things happened. But it was the Principal that continued this lie – backed by JBM. The “emergency in Kansas” was the first thing told. Subsequent letters were signed by the Principal (Jen Cronan) and, when questioned, she would refer to JBM. ut the “family emergency” was kept up through the end of the year.

  • tmharrington

    Concerned: Do you have letters sent to parents communicating this information? If so, would you be wiling to share them with the CCT?

  • Doctor J

    Penn St. pays $59.7 Million for 26 victims. How much will MDUSD pay for 13 victims of MartinGATE ? http://www.cnn.com/2013/10/28/justice/penn-state-sandusky-settlements/index.html?iref=allsearch

  • Phoenix

    Dr. J, since I ascertain from your posts you are either a District insider, or at least an extremely close follower over many years who knows all the relevant players, in your opinion, whose job was it to follow Martin after the 2006 investigation and make sure he complied with this disciplinary plan referenced in the civil case? I am asking this separate from the duty to report to CPS, which according to the civil complaints filed did not occur.

  • Doctor J

    @PHX Everyone who approved or had knowledge of the disciplinary plan — the names of whom have not yet been made public. Suspicion would probably focus on everyone in the chain of command from the time of the plan’s development until the arrest.

  • tmharrington

    Based on information I received about a different elementary teacher at a different school who was disciplined by the district, it appears that disciplinary plans are documented by the principal and that the SASS Dept. and Personnel Dept. are involved, along with the legal dept. The teachers’ union was also copied on a memo outlining findings and directives, which were issued by the Personnel Director. In that instance, the principal and personnel department planned to follow up to ensure the directives were followed. Later, the teachers’ union president participated in a conference with the teacher, principal, and personnel director to discuss ongoing concerns. Subsequently, a letter of reprimand was issued by the principal, with copies to the personnel director and teachers’ union president. In that instance, the principal followed up promptly and documented the teachers’ failure to adhere to the directives. This school also had a change of principals and the new principal received parent complaints the following year, which led the assistant superintendent of personnel to issue a 45-Day Notice of Unprofessional Conduct, which was copied to the SASS director, principal and MDEA president. The file also included several emails from parents expressing concerns about the teacher. The district eventually entered into a separation agreement with the teacher.
    Based on that case, which did not involve suspected child abuse, it appears that the school principal, SASS assistant supt., personnel assistant supt., MDEA and the legal dept. should have been aware of Martin’s disciplinary plan and there should be a paper trail, which the district appears to be withholding.

  • Phoenix

    TH, just an observation, there is a possibility that in the instance you site, the legal department actually wrote the 45-day notice. In Martin’s case, since the legal department assigned out and managed the investigation, there is a very good to almost certain chance the legal department wrote a 45-day notice and disciplinary plan for Martin, even if the Asst. Superintendent’s name went on the 45-day notice. I suspect MDEA was also well-aware of the situation.
    Let me ask, when suspected individuals were reported near schools, how often did legal show up to monitor and comment on the situation to the press?

  • Doctor J

    Maybe MDEA and MDEA officers who knew about the reasonable suspicion of Martin’s improper actions should also be made defendants and help with the settlements ?

  • tmharrington

    Phoenix, I’m a bit unclear on your question. What do you mean by “suspected individuals” being reported near schools? The legal dept. has sometimes shied away from speaking to the press in general, although Greg Rolen has acted as the district’s spokesman in some instances. In the Martin case, the board voted to terminate Rolen’s contract early the same night Martin was put on administrative leave. But, that closed session had already been scheduled ahead of time, so it’s unclear whether that decision had anything to do with Martin.

  • Phoenix

    This is the kind of thing I am talking about, http://www.fugitive.com/2009/09/11/pleasant-hill-alert-reports-of-gray-haired-man-harassing-12-year-old-pleasant-hill-middle-school-boy/

    If the same level of attention had been given to whether Martin was in compliance with his plan; things may have turned out differently. Following Martin was just diligent, basic hard work, the kind that doesn’t involve positive publicity like the article noted above.

  • Doctor J

    Yesterday, MDUSD filed an “answer” to the lawsuit by BANG — Theresa, can you post a copy ?