Part of the Bay Area News Group

MDUSD logs documents related to teacher molestation arrest withheld from Bay Area News Group’s Public Records Act request

By Theresa Harrington
Friday, April 4th, 2014 at 10:56 am in Mt. Diablo school district.

The Mt. Diablo school district’s attorney has responded to a court order to produce logs of documents being withheld from Bay Area News Group’s Public Records Act request seeking “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…”

Martin was placed on administrative leave in April and was subsequently arrested and charged with 150 counts of molestation involving 14 former students while he taught at the Concord campus. His trial has been postponed until May.

The district provided Bay Area News Group, or BANG, with two notices related to the court order.

The first is a Notice of filing, which includes a short list of two documents the district is withholding from Bay Area News Group that are not protected by attorney-client privilege:
https://drive.google.com/file/d/0B6mS2O1_NKceZ2I4OXZCS0Z4amc/edit?usp=sharing

It lists two e-mails from the district’s associate general counsel Deborah Cooksey to Concord Police Detective Tamara Roberts, which discussed criminal charges against Martin. The district claims several privileges that it argues entitle it to withhold the documents from the public, including official information, pending investigation, confidential information, attorney work product privilege and deliberative process privilege.

In its discussion of the documents, the district states that the e-mails contain information regarding an “unfinal personnel decision by the district’s legal counsel.”

“If the district is required to disclose this information, it will commit the district to premature personnel decision and expose the district’s legal counsel investigatory process,” the district argues.

“Said communication also evidences the legal counsel’s work product and impressions. Further, said document may potentially be excluded from the definition of a public record,” according to the district.

It concludes by arguing that the e-mails reveal the district and legal counsel’s “investigatory efforts both as to allegations of wrongdoing and on confidential personnel decisions,” which it argues are expressly excluded from disclosure.

The second item provided to BANG is a Notice of Lodging Privilege Log, which states that a confidential privilege log of documents protected from disclosure due to attorney-client or attorney-work product privilege has been lodged with the court: https://drive.google.com/file/d/0B6mS2O1_NKceWlhqcUdqVW1UUDQ/edit?usp=sharing. It does not include Exhibit A, which is the list of documents being withheld.

Interestingly, the district did not list the letter that was sent home to Woodside Elementary parents when Martin was placed on his leave of absence. It is difficult to imagine how that letter could be construed to be subject to attorney-client privilege or attorney-client work product.

Do you agree with the district’s decision to list only two e-mails as potentially responsive to BANG’s Public Records Act request and to keep the list of “confidential privilege” documents provided to the court secret?

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  • Doctor J

    A press release from the DA is a little short of a perp walk on the nightly news, but I think you will see the pretty face of Jennifer Bernard Sachs on the nightly news and tomorrow’s front page.

  • tmharrington

    It looks like it’s scheduled for page 1 of the Local Section, but I don’t think we have a photo of Sachs.

  • g. de la verdad

    Thinking of the Grisham novel, “A Time to Kill.” The attorney tells a horrifying story of a little girl, and closes his argument saying; “Now imagine that little girl is…white.”
    Then ask Sachs if she would have acted differently if multiple teachers reported that a teacher was behaving strangely toward ‘her’ son, or daughter.
    That question would be good for Mark Peterson to answer too.

  • Doctor J

    Funny how Peterson waited a whole year from when Martin was arrested.

  • tmharrington

    Yesterday, we received a report that an elementary school in WCCUSD saw signs of possible abuse and immediately notified police. This was not related to an employee, however. Still, I was glad to see the school didn’t waste time doing it’s own investigation or try to second-guess what might have happened. Administrators rightly called police and let them investigate.
    Regarding Woodside, it’s also interesting that the DA never even mentioned any investigation into the Woodside teachers who failed to report their suspicions to police or CPS. It seems lack of training from the district gives them a “pass.”

  • tmharrington

    As a clarification, Martin was placed on leave in April, but wasn’t arrested until June.

  • g. de la verdad

    And apparently the DA’s office waited 10 months to pull everyone’s statements regarding 2006, AND whatever files and memos were left unpurged, on which to base their assumptions of no wrongdoing. Plenty of time….

  • SeekingJustice

    Here’s the input that I can add. I had a 30 min+ phone call w/ Nancy Georgiou yesterday. She’s the Deputy DA and the one that oversees child abuse cases in our county. She was the one that made the decision regarding not to file charges. During these 30 minutes – we went back and forth – and finally concluded that we would meet this coming week to continue our conversation. I’m not accepting her position on this, nor will I walk away quietly.
    Her position, as the Times reported – is that her decision to not file charges has everything to do w/ the “one year” statute of limitations on mandated reporting laws (she is using Penal Code 11166 as her backdrop for said decision). The fact that Nina Pate (the teacher who witnessed the initial incident) and Jennifer Sachs – didn’t actually witness “molestation” – so that changes things to a one year statute of limitations. She was quiet when I asked her how someone walking in on a teacher….alone with a male student, behind a closet door, in bare feet – did not constitute a sexually inappropriate situation. Her response was that if ACTUAL molestation has been witnessed, then the statute of limitations would be from the time of the police investigating the incident (which would have been April, 2013).
    Here’s the thing – I’m tired and haven’t been able (yet) to call all my contacts and resources and prepare for my meeting yet. However – this is what I know: Yes, there is still the criminal trial for Martin. Yes, there are still the various civil claims. But letting people walk away who CLEARLY made criminal mistakes will never be ok in my book and I won’t stop with this until full accountability is given – in some means – by all players. Why? Because if this happened to any of us “common folk” – you can certainly guarantee that we would have the book thrown at us with every possible charge. This is an example of one political entity trying to cover the other’s butt.
    Georgiou tried to assure me that she is a mom and understands my frustrations. Really?? Let her walk in the shoes of a mom that had TWO of her sons victimized in this manner. Not by just Martin but by others that didn’t do the right thing.
    She also tried to assure me that the DA has met with Mt. Diablo School District and PROPER Child Abuse Training will now be occurring. That’s wonderful and hopefully that will help prevent this travesty from ever happening to other family again (NOT just being sexually victimized by a teacher – but having others in positions of TRUST fail to report).
    But what about the 14 (known, and I promise there are more) victims of Joseph Martin? Where is the justice for those children, Ms. Georgiou and Mr. Peterson?? I’ll let you tell me that – in person – next week.
    Never underestimate the power of a mother. A mother who’s children have been hurt at the hands – and lack of actions – of others.

  • g. de la verdad

    As to proper training: Mandatory reporting has been on the job descriptions of no less than 6 certificated job descriptions since at least 2002. The form to file when one has reason to “suspect” child abuse was first published, in its current form in 2002. Where, except in taxpayer supported government jobs can a person flat out ignore both the union requirement and tenets of their Job Description?

  • Annie CSEA

    Mandated Reporting is not in a Union contract it is the LAW. It is in District Policy. The CSEA Union did want proper training and finally got it.

  • Annie CSEA

    Ask Theresa how long I have been talking about Mandated Reporting.

  • tmharrington

    Yes, Annie has been asking for comprehensive training and reminding her members about their responsibility to report — along with the fact that they DON’T need to notify administrators at all.
    And as g points out, perhaps if MDEA had the same level of tenacity as Annie in drumming this message into its members’ heads, the Woodside teachers wouldn’t have sat silently all these years, pointing their fingers at Sachs for failing to report. They SHOULD HAVE reported their suspicions directly to police or CPS themselves.

  • SeekingJustice

    We (Victims’ Families) will be having a Press Conference, on the sidewalk, in front of Woodside – this Wednesday, April 23rd at 11am. I already have confirmed media that will be there. We will be having a couple of speakers to discuss the ludicrous decision to not file criminal charges against Mandated Reporters. You will have an opportunity to see the photographs of those that failed to report…. as well as hear that our DA is soon up for reelection. PLEASE plan on attending if at all possible. There is power in numbers.

  • g. de la verdad

    And when those teachers went to Sachs she should have known to direct them to the proper authorities. Rolen and the entire legal team should have known to direct them to the proper authorities. The board members and personnel department should have known…AND all of the complaints should NOT have ended up in a sealed file…waiting for a very short year to pass on the statute of limitations to signal the “Whew, we’re all in the clear. They can’t catch us now!” “Give Martin the go-ahead to ‘carry on’ with the little boys — as long as his class gets high scores!”

  • Doctor J

    Theresa, please toot my horn too. :-) Who informed you of the statute requiring that district file a report with the State Board Education if they did not train all of the mandated reporters ? Didn’t that lead you to do a PRA request to Coach Torlaksen and he disclosed that no district had ever complied with that law ? That was one of the factual basis that led to your great article and survey that exposed the great hypocrisy of districts throughout California ignoring the mandated reporter training law, for which I think you and Matthias deserve a Pulitzer . Hats off to you Theresa for following up on a good tip.

  • Mary Smith

    They knew what to do, they just didn’t do it.

  • Doctor J

    Remember that every mandated reporter can be held individually liable for damages that could have been prevented had a report of misconduct been made. As Schoenke said last meeting, every claim filed results in MDUSD paying the first $250,000 — thats why the Martin case is costing MDUSD millions to defend. 13 victims. Multiple MDUSD employees have the blood of molestation prevention on their hands. Yet, do any of them feel guilt ? They all rationalize their behavior in failing to do their legal duty to report.

  • Doctor J

    Jennifer Bernard Sachs’ photo is prominently displayed on the Pittsburg USD website under Educational Services Department. looks like it is public domain.

  • tmharrington

    Dr. J: I don’t recall that tip coming from you, but if it did, thanks. I recall that reporter Matthias Gafni became aware of that requirement when he was investigating the Moraga cases of failure to report. He called the state and found out that no one had ever contacted the CDE to opt out of the training.
    Thanks for your kind note about our report. While we haven’t won any awards outside our company for that story, I am happy to let you know that I have won two John Swett Awards for Education Journalism – one for beat coverage and one for the story I did about Rolen’s failure to disclose his potential conflict of interest by steering contracts to his girlfriend.

  • Doctor J

    MDUSD filed supplemental opposition on April 23. Theresa, can you please post ? The Day of Reckoning is coming soon.

  • Doctor J

    Theresa, with the hearing coming up in two days, can you please post the April 23 Supplemental Opposition ? What happened at the press conference by the Victim’s Families on April 23 ??

  • tmharrington

    Yes. The press conference was postponed.

  • Doctor J

    Why was the case continued 3 weeks ? @TH, I know that you have been busy, just a friendly reminder to post the April 23 MDUSD supplemental opposition filed with the court. Thanks.

  • tmharrington

    I don’t know the reason, but was told the court continued the hearing to May 21 at 9 a.m.

  • g. de la verdad

    Stall and strategic planning tactic. The various J. Doe cases and the BANG case were assigned to two different courts. They have set a new hearing 5/21 to try to bring all Joseph Martin related cases to one judge.
    The district may have good reason to prefer Judge Austin over Judge Spanos. They’ve presented to Spanos before, and he never forgets a prevaricator.

  • tmharrington

    Here is a new blog post with tonight’s agenda: http://www.ibabuzz.com/onassignment/2014/04/30/mdusd-board-to-hear-proposal-to-create-a-northgate-district/

    Unfortunately, I am unable to attend, but will watch the livestream.

  • Mary Smith

    I tried to tell you this before Dr. J, the wheels of justice turn slowly. You thought this would be done in March. The system does not work that way. Some of us might die before the Martin cases resolve.