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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?

[You can leave a response, or trackback from your own site.]

  • tmharrington

    Apparently, our attorney hasn’t yet received it yet, but she promised to send it to me when she does.

  • g. de la verdad

    I wonder. Putting the BANG PRA request aside, and considering other child molestation cases in the news in the past few years, doesn’t the $10million bail set for Martin seem very high? Reading the accounts from the Woodside students, there seems to be a history of inappropriate “touching” but no reports of Martin going to what we might consider (to put it gently) the “extremes” of sexual abuse.

    I wonder. Once the police got involved, did the report from Woodside merely serve as the straw that finally broke a serial child molester’s back?

    I wonder. Is Martin in jail just for ‘this’ case, or is there far more that we don’t know about.

    Contra Costa County Examples: both in Mar 2013,
    1) Anthony D’Tileo, 23–(preschool teacher!) was arrested and charged with four counts of lewd and lascivious acts against a child under age 14 — bail was set at $5.6million.
    2) Joel Kaufman, area baseball coach, charged with two counts of performing lewd acts on a child under 14, and one count each of performing lewd acts on a child between 14 and 15 and penetration of a drugged or intoxicated person, plus charges of filming/video taping. His bail was only $325K.
    So exactly what charges are listed on the Martin arrest report?

  • Phoenix

    It is high, but there are at least 12 victims and, as I recall, 129 felony counts charged by the DA, so that drives up the bail amount. It is not out of line with the D’Tileo case you cite of 5.6 million given the very high number of counts charged and high number of victims.

  • tmharrington

    The state’s charges are included in the BANG lawsuit as an attachment.

  • tmharrington

    Here’s the district’s answer to the BANG lawsuit: https://drive.google.com/file/d/0B6mS2O1_NKceVUItdkp4Vjc0cFU/edit?usp=sharing

  • Doctor J

    The District is stonewalling the TRUTH. The only reason for doing so could be so the extent of the knowledge by district administrators, teachers, and other mandated reporters is not divulged to the public — this is a cover-up of EPIC proportions.

  • Phoenix

    Dr. J, I write this comment to point out what I believe has been a hypocrisy. When Rolen didn’t produce records, he was vilified. He was released, most were happy, and now you have the same lawyering going on. Its LAWYERING, this is what lawyers do. They argue; they litigate. Whatever Rolen did wrong, his “wrongs” weren’t about not producing records, but other conduct. When Jayne Williams was appointed interim, I recall your glowing posts about her experience,. But, in reality, her legal decisions on the production of documents are no different than Rolen’s were. I’m just pointing out facts here. Clearly the board supports opposing the writ of mandate. Have things changed? Yes there are new players, but, this is what politicians and lawyers do.

  • g. de la verdad

    Yes, but district legal counsel should be taking their orders from the district leaders. Unfortunately, you may be right — we are dealing with a board that’s still top-heavy with politicians.
    (Dictionary.com)

    pol·i·ti·cian

    /ˌpɒlɪˈtɪʃən/ Show Spelled [pol-i-tish-uhn] Show IPA

    noun

    1.

    a person who is active in party politics.

    2.

    a seeker or holder of public office, who is more concerned about winning favor or retaining power than about maintaining principles.

    3.

    a person who holds a political office.

    4.

    a person skilled in political government or administration; statesman or stateswoman.

    5.

    an expert in politics or political government.

  • Doctor J

    @PHX – Lawyers give advice, clients make decisions. Jayne Williams’ contract is over soon. The Board, after receiving advice, makes the decision. With the tornado of legal problems staring the district in the face which almost all arising from years before 4 of the Board members were on Board, what will the Board do ? Find a new “in house” General Counsel or seek out experts in the various issues that rise from the graves left by others ?? So PHX, what’s next on the Writ of Mandate ? Who will be first in the deposition chair to be grilled for days — what documents were searched for ? what documents exist but weren’t produced, and why ? Who do you see on the list of witnesses ? Will the judge really review potentially thousands of pages of documents ?

  • Doctor J

    And I thought you were going to give us the definition of “top-heavy”. From same source:
    top-heav·y
    /ˈtɒpˌhɛvi/ Show Spelled [top-hev-ee] Show IPA
    adjective
    1. having the top disproportionately heavy; liable to fall from too great weight above.
    2. relatively much heavier or larger above the center or waist than below: a top-heavy wrestler.
    3. Finance.
    a. having a financial structure overburdened with securities that have priority in the payment of dividends.
    b.overcapitalized.
    Remember Linda Mayo was elected in 1997 — her deposition could last for a week with long pauses between the question and the answer. Besides, I think she is a “pack rat” with regard to maintaining all district handouts and communications. It would not surprise me that she has direct information on MartinGATE.

  • Phoenix

    Dr. J, there are no depositions in writ of mandate proceedings. The matter will be set for a court hearing; and each side files motions in support of, and in opposition to, the request for writ of mandate, which usually have declarations attached as exhibits to support the party’s position on the legal issues. Depositions and “paper discovery” will occur in the civil cases, particularly the one filed by Stan Casper. I am not advocating for Rolen and I am not criticizing Williams; I am only pointing out that they provided legal decisions not to disclose public records under certain exemptions, decisions which were supported by the respective school boards at the time the initial advice was given. I do not know everyone who will be deposed; but I do know that all of this litigation will be costly and will take significant time to resolve.

  • Phoenix

    Dr. J, to answer your question on in-house versus outside counsel, I have not researched this specifically, but I am pretty sure that every district the size of Mt. Diablo or larger has in-house counsel and also sends work out to contracted legal counsel. If you check the CDE website, I believe MDUSD is the 16th largest district in the state, and that all of the larger districts do have in-house counsel, starting with the 15th largest, Stockton Unified. IMO, MDUSD should hire a new general counsel after a lot of careful vetting.

  • Doctor J

    PHX, so how does BANG identify which documents have been withheld if MDUSD doesn’t tell them ? How does BANG verify if MDUSD made a thorough search through the electronic archives of all employees and Board members ? Doesn’t someone make a list and then identify why they are not producing them ?

  • Doctor J

    Lots of factors are in play in whether to have “in house” or “outside” counsel, and how many lawyers. In fact, a whole book has been published on evaluating the factors. http://www.nsba.org/SchoolLaw/About/AboutSchoolLawyers.html

  • tmharrington

    When Dan Borenstein asked trustees to reconsider Rolen’s denial, another attorney came in and again asked for documents from district employees and board members, then presented them to the board for a decision about whether or not to release them. Hopefully, the board has asked to see the documents that are being withheld.

    As I mentioned, previously Rolen DID release documents to me that were related to personnel issues. And Cooksey released many documents and emails to me related to Mildred Browne’s departure. So, there is precedent in the district for releasing personnel-related documents.

  • Doctor J

    But Theresa, you never did know for a fact whether or not ALL of the documents were given to you or what the extent of the document search was.

  • Concerned

    Is it true that Ms. Brickell, the second interim Woodside principal, is leaving Woodside already? What is the district thinking?! Woodside students and staff deserve better than this revolving door of principals.

  • Phoenix

    I am going to guess that the personnel documents released to you by Rolen did not put him in a bad light light, whereas the contract extension documents that he refused to produce did potentially put him in a bad light. When Cooksey released documents, I believe Browne already signed a settlement agreement. With the BANG request, you have major litigation pending against the District; these documents have the potential to hugely prejudice the District’s defense, and even poison a jury pool if the civil case does not settle, so the Board has every motivation to invoke the CPRA exemptions and not produce the documents. Based on the answer filed, it has been so advised by its current interim general counsel (and probably insurance defense counsel as well). There are many complex factors and it is not just an issue of past precedent.

  • g. de la verdad

    Maybe the bigger question is who’s actually running the district. Is it the new supt, or is it her “mentor” team? Are legal issues the pervue of the interim Counsel or her “Firm” — Do we have a bunch of follower-leaders, including board, who think “We’re paying them, so they must be smarter than we are and we have to do what they tell us.”
    Oh, rats! I think I just channeled Mayo!

  • Phoenix

    Dr. J, the factors listed such as size of the District, number of complex legal issues, and need for proactive legal action all militate in favor of having in-house counsel in a District the size of MDUSD. In-house counsel has direct contact with administrators and access to records and school sites, which is a huge advantage to the District. Every time outside legal counsel places a phone call or sends an email, the District is billed. Consider the Martin case. In a situation such as that, if you are outside legal counsel, you do not have the ability or access to monitor the disciplinary plan as would in-house counsel. There is a financial disincentive for administrators to follow-up with outside legal counsel to confer on these issues. General counsel regularly attends MDUSD K-12 principal meetings at Willow Creek (or did). That alone was an opportunity to follow up with the Woodside principals and ask how things were going and ask if Martin was following the plan. GC has access to school campuses at any time and can check in on problem employees/teachers, because GC is a district employee, and outside legal counsel are not a district employees and do not have that type of access. These benefits and many more are why almost all large school districts in California have gone with an in-house legal counsel model.

  • tmharrington

    I have inquired at the school and was referred to Julie Braun-Martin, whom I have emailed to find out if this rumor is true.

  • Doctor J

    Yesterday Julie B-M posted an opening at Concord High for a VP — wondering if one of the VP’s might be headed to Woodside ? Julene ????

  • Concerned13

    g. de la verdad – As the mother of two of Martin’s victims, I can assure you that his bail and charges are accurate and just.

    I say that NOT because of what’s happened to my children; but by knowing the particular details of what has occured to all of the children. Those details are saved for the criminal trial.

    He has 125 felony counts – as you can see by the other cases you mentioned, most of them had less than 10. In addition, the “special circumstances” are that these counts involved children under 14, and that these acts occured over three or more months (much longer in most all cases).

    Without divulging more, $10 million bail for a serial child molester – with 125 felony counts – is more than just.

  • Concerned13

    Absolutely. HUGE cover-up.

  • g. de la verdad

    Concerned 13: I have no doubt the bail is justified. What I was really wondering: If the news as it was reported early in this case is correct, after two months of investigations and speaking with potential Woodside victims, when Martin was originally arrested his bail was (per police/news reports) set at $3.6million. After he was arrested, search warrants were executed, and bail became $10million. Did they find other evidence — evidence not yet charged?

    Might this be a case of the DA going after the ‘most obvious’ ‘best’ case/125 charges, while there is perhaps evidence that could follow for another case? Maybe the earlier reports of the lower bail amount were inaccurate — Or maybe Woodside was not his only hunting ground.

  • Concerned13

    The original bail was 3.95 million and 91 felony charges, when he was first arrested. The investigation continued, though – and, yes, more evidence and additional victims were found.

  • Phoenix

    Concerned13, as a parent and someone who was sexually assaulted as a child myself, my heart goes out to you for what your child went through and what your family is experiencing. Can you state what persons you believe should have been watching Martin and were not? Do you put it all on the principal(s), or do you feel those in District administration should have been coming out to the site to check on him? Or that the District should have tried to dismiss him earlier? I’m curious to any views you can provide.

  • Concerned13

    Phoenix – Thank you for your kind words, I really appreciate it more than words can convey.

    Seeing your children hurt in any way (much less by sexual abuse) has taken a huge toll on all of us. There are so many details that I wish I could share, but I can’t compromise certain things. I hope that’s understood.

    I’ll tell you what I can. Given the prior allegations that occurred – and all that was found during that internal investigation – there should have never, ever been a “discipline action” in place. A “discipline action” for “potential child abuse” (MDUSD’s words)???

    If someone can tell me how that even makes ANY sense, it would surely help this mom.

    So – you know my position on what “should” have happened, given the facts, etc. But let’s just go with the fact that they did keep him on w/ certain “discipline actions” in place – ie, keeping the door open, not being alone with one child, being “x” number of feet away from certain classrooms, etc. All of it. YES, I feel that every Principal from Sachs to Batesole to Cronan was responsible to ensure that these things were followed. From there – it was up to the District to oversee and make sure that these actions were followed – overseeing Woodside Principals and overseeing Martin.
    When I say “District” – given the details of the initial allegations – I mean everyone – from JBM up to the Board Members, General Counsel, Superintendent.

    But again, a “plan” for a probable sexual offender?? Really??

    Just one more thought – and I know this is out there already – but there are many teachers (some still on staff at Woodside) — that saw situations that met or exceeded the “reasonable suspicion” reporting law. It wasn’t just that they thought he was creepy or had a bad vibe about him. They saw compromising situations between him and boys – period – and made decision after decision to not follow proper protocal and report.

  • Phoenix

    Hi Concerned13, I can try to answer your question above about the investigation report. The quote in the article above taken from the civil complaint is that the investigator said, “potential” and not “probable.” While it may seem like semantics, legally “probably” means more likely than not, or 51% v. 49%, while “potential” is something less than that and not enough evidence to get a teacher dismissed. (Permanent teachers like Martin are entitled to a full blown dismissal hearing with witnesses before an administrative law judge and a finding that it is more likely than not that they committed misconduct requiring their dismissal, before they can be terminated.) It appears that when that first investigation report came back in 2006, someone or some persons in the District decided they didn’t have enough to move for a teacher dismissal hearing based on the results of the investigation alone. However, “potential” certainly equates to “reasonable suspicion.” I can’t imagine what the defense could be to not referring the suspicion to CPS at that time to interview potential victims, and after that, watching Martin carefully to make sure he was following the remediation plan. I’m sorry your child and your family are experiencing this awful situation, and I believe justice will be rendered.

  • Doctor J

    Nancy Dasho now listed as third interim Principal at Woodside in just over two months of school — Why the musical chairs ? She is retired principal of Woodside. http://www.mdusd.k12.ca.us/woodside/Woodside_Elementary/Faculty_%26_Staff.html

  • tmharrington

    Julie Braun-Martin said in an e-mail that the district is still searching for a permanent principal at Woodside. She said Brickell had subbed and now Dasho is “subbing.”
    When I googled her, I saw that she was principal of Holbrook Elem. in 2006-07.

  • Theresa Harrington

    Bay Area News Group received a police report that shows Deb Cooksey dragged her feet in response to police request for internal report about Martin: http://www.contracostatimes.com/news/ci_24486569/get-search-warrant-mt-diablo-district-attorney-told

  • Doctor J

    Blockbuster revelations on MartinGATE — I concur with Theresa’s opinion that Cooksey was “dragging her feet” on assisting police in the investigation by requiring a “search warrant”. Incredible that Cooksey says they built a “wall” around Dr. Bernard, interim Supt, since his daughter was one of the Principals implicated in the coverup — yet Bernard made a statement to the press — some wall. Great investigative article by Mathias Gafni. BTW Theresa, your post “Bay Area News Group received a police report that shows Deb Cooksey dragged her feet in response . . . . ” seems to have dropped off the comments. What happened ? Gafni report: http://www.contracostatimes.com/news/ci_24486569/get-search-warrant-mt-diablo-district-attorney-told

  • g. de la verdad

    Wouldn’t you think Cooksey would have learned from Rolen’s example that “building a wall around…” is very much like ‘closing the barn door after…’ and it doesn’t do much to fix the harm that’s already been done.

  • tmharrington

    I typed that comment using the old system instead of Disqus, so I think that’s why it doesn’t show up here. It will also be interesting to find out if Dr. Bernard is the Total School Solutions consultant who is coaching Dr. Meyer. If so, it would appear the wall could have an open gate.

  • g. de la verdad

    Cooksey’s treatment of police inspector Robert’s requests for records is still playing big on the radio. Gil Gross, Newstalk 910 just did a piece on Gafni’s article. It was not difficult (it never is) to know what Gil Gross thinks. His full five minutes of coverage should have the district’s and Cooksey’s ears burning and eyes watering. Hopefully it has Cooksey looking for “other” employment. Maybe as a law clerk someplace out of the East Bay area.

  • Doctor J

    Here’s Gil Gross on Cooksey and MDUSD’s refusal to assist the police in investigating child molestations against students. Starts in Hour 3 at 10:06 and runs about 5 minutes. Worth the listen. http://www.talk910.com/media/podcast-gil-gross-gil_gross/gil-gross-111113-hr3-23959332/

  • g. de la verdad
  • tmharrington
  • Doctor J

    Theresa, can you please post the Complaints so we can read what our taxpayers money has been spent for ? We need to know if Linda Mayo should be asked to resign or if she has a conflict of interest in voting to conceal MDUSD records on MartinGATE . Also, please don’t forget to post the documents you promised us last week. Thanks.

  • g. de la verdad

    I’m a bit surprised the suit doesn’t also name Isserman. Personnel would surely have been involved in reviewing and sealing the records.

  • g. de la verdad

    Mayo wasn’t just ‘on the board’ in 2006. She was President, and likely would have been the first board member notified of the internal investigation.

  • Doctor J

    Linda Mayo was a Mandated Reporter — so she could be held personally liable for failure to report the reasonable suspicion of child abuse by Martin. Mandated Reporters who fail to report can be held personally liable for all damages caused by subsequent molestations — Linda Mayo needs to do the right thing — and RESIGN.

  • tmharrington

    There are certainly more people who could have been named. I agree that personnel should have been involved in reviewing the report and setting up the monitoring plan that was never enforced. Someone should have followed up on the fire marshall’s citation as well.

  • tmharrington

    The complaints are online with the story, listed to the right under “related stories” at http://www.contracostatimes.com/walnut-creek/ci_25114970/concord-nine-victims-file-lawsuits-mt-diablo-teacher

    I will try to get to those other BANG docs today. A reader called to ask whether the report will become public if it is introduced into evidence in the criminal trial. That’s a good question. He also asked whether the district has done anything to negate its insurance coverage through its own negligence. Another good question.

  • Doctor J

    Former Board President Linda Mayo and gang are charged with Fraudulent Concealment and Conspiracy to Commit Fraud “in perpetuity” after failing to report to the police or CPS suspected child abuse — see the 10th and 11th Counts of the “Caspar” complaint. Every one of those who are guilty should resign and lose their educator’s credentials.

  • g. de la verdad

    Brian Lawrence once asked ‘Is there any conflict of interest when our interim counsel firm hires itself as counsel for this [Martin] case?’ And relied on the Meyers Nave attorney’s response — ‘We wouldn’t do anything that created a conflict of interest, and the final decision rests with the board anyway.’

    Our Supt. and our board need to instruct Schoenke to instruct Meyers Nave to push through with Martin, and all cases as quickly as possible. Given free reign, Meyers Nave will drag some of these trials out for years. some are already two years old. Meyers Nave came into the district (we were told it was “just” for this case) and in a matter of 2-3 months, through Jayne Williams, took over control of nearly all other existing cases — leaving only one or two under the same counsel that was working certain cases at the time. They “settled” some (without the board reporting out settlements or costs publicly) and they “took over” some, to move the big bucks into their own pockets. Every month since last summer, Meyers Nave (alone) is raking $75-100K out of the district coffers — and they’ve barely begun this and several other court cases. This is just the tip of the legal expense ice berg.

  • Doctor J

    What is the reaction of the Calif State PTA that Linda Mayo is charged with Fraudulent Concealment and Conspiracy to Commit Fraud “in perpetuity” — after all Linda is the parliamentarian and a Board of Directors member for the State PTA. http://downloads.capta.org/photos/BOD2013-15/LindaMayoBio_FINAL_070813.pdf

  • tmharrington

    Although the general counsel’s office referred me to Meyers Nave for comment, the attorney there never even bothered to respond to my phone calls or emails. A “no comment” would have been nice.

  • tmharrington

    The agenda for tonight’s meeting includes two claims being discussed in closed session: http://esbpublic.mdusd.k12.ca.us/public_agendaview.aspx?mtgId=447

    However, it’s unclear whether they are related to Martin.