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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

    MDUSD’s credibility is non-existent — in all those years, there are no emails or inside memos or notes about Martin ‘s conduct ? Just because Rolen may have been cc’d on an email or memo does not make it protected. I think the judge will review each document, maybe even let BANG’s lawyer see them under some type of secrecy agreement, and rule in favor of BANG on the majority of documents. The judge might even conduct an inquiry to make sure ALL documents have been disclosed.

  • g. de la verdad

    Maybe I don’t understand “boilerplate” very well, but they both appear “boilerplate” to me.

  • Doctor J

    The judge said no boilerplate and MDUSD gives him boilerplate. I don’t think he will be amused. I hope the judge asks for written testimony of the efforts to look for appropriate documents !

  • g. de la verdad

    I hope Judge Austin asks them to define the word “unfinal.”

  • Doctor J

    Hasn’t Martin since been terminated and therefore any such objection is now irrelevant ? Hasn’t Martin’s teaching credential been revoked ?

  • g. de la verdad

    Administrative Leave can mean many things. I don’t recall “terminated” ever being used. His certificate was “suspended” under Ed Code 44940 according to CTC, and ‘could’ be renewed at some future date. Friends in district high places may have agreed to put him under a mandatory suspension for “mental health” evaluation clause, and I believe that could mean he is still eligible for pay/benefits for up to two years.
    I’m not certain of this, so it would be nice to have the board clarify exactly what “leave status” he was given in April when put on Administrative Leave; what it became after his arrest in June; what his status is today with the district.

  • tmharrington

    I have asked Julie Braun-Martin this question and she says she can’t comment on the case.

  • g. de la verdad

    Perhaps another PRA requesting proper Brown Act disclosure of Actions and votes of Item 4.5 of Closed session on 4/22/13.

    CLOSED MEETINGS

    Closed meetings are the exception and permitted only if they meet defined purposes and follow special requirements (�� 54954, 54954.2, 54954.5, 54957.7).

    EVEN AT CLOSED MEETINGS…

    Special public notice and agenda requirements apply (�� 54954, 54954.2, 54954.5, 54957.7).

    All actions taken and all votes in closed session must be publicly reported orally or in writing within 24 hours (� 54957.1(b)), and copies of any contracts or settlements approved must be made available promptly (� 54957.1(b),(c)).
    As I’ve said many times, merely stating “The Board gave instructions to legal counsel, etc, etc.” is not sufficient. Actions must be clarified.

  • g. de la verdad

    Does anyone else think it is strange that all videos of board meetings between 3/25/13 and 6/23/13 have been “Removed” from Livestream?

  • tmharrington

    Yes, coincidentally, those meetings were about the votes to terminate Superintendent Lawrence and Greg Rolen. In addition, those meetings took place around the same time the Joseph Martin investigation was going on.

  • g. de la verdad

    Exactly. Why delete all of those termination conversations.
    I ‘think’ 4/22 is the one for Martin though.

  • 2busymom

    Anyone else catch the agenda item 12.18 to increase outside legal fees by $460,000? http://esbpublic.mdusd.k12.ca.us/public_itemview.aspx?ItemId=8327&mtgId=454

  • Doctor J

    Just as I predicted, DMA wants 5% increase but WAIT the BIG FOUR want increases by tradition — WTH ? their contracts expire June 30. NO documents attached !!! Very fishy.

  • g. de la verdad

    The board will be provided with a rubber stamp for each hand to get through Wed’s meeting before midnight.

  • Doctor J

    Julie B-M, Rose, Bryan, Kerri, and Larry all negotiated their own separate contracts, so why does TRADITION say they get an increase ? Their contract doesn’t say that ! In fact the law now prohibits it. let them negotiate new amounts starting July 1, if Dr. Nellie is going to keep them.

  • Doctor J

    since there are no attachments how is the Board getting information to justify a half million dollar increase ? Brown Act anyone ?

  • g. de la verdad

    Are we ferrying atty’s out of the area? Where is Case No. N14-0415 being held? Not CCCo. Or is that case # internal mdusd code?

  • g. de la verdad

    I agree. Especially considering the legal costs and contentious nature of the renewals last year for Julie, Rose and Bryan. There should be no Retro-active increases on those contracts!

    Changes to pay for Elected Board Members should stand alone — not be loaded on the back-end of salaried employee wage scale.

  • tmharrington

    Here’s info on a teacher dismissal bill that could make it easier for districts like MDUSD to fire teachers like Martin: http://www.contracostatimes.com/news/ci_25497549/agreement-reached-bill-streamline-california-teacher-dismissals

  • tmharrington

    Here’s the agenda for tomorrow night’s meeting: http://esbpublic.mdusd.k12.ca.us/public_agendaview.aspx?mtgId=454

  • tmharrington

    I have confirmed with Julie Braun-Martin that council members refer to the superintendent’s council, not to board members. This includes: Julie Braun-Martin, Bryan Richards, Kerri Mills and Rose Lock. She wasn’t sure if Larry Schoenke would get the raise because he is on a post-retirement contract, so is not a permanent member of the council.
    It’s interesting that Braun-Martin and Richards are presenting this proposal, since they both would get pay raises if it is approved. Note that the language says: “As has always been the practice with pay increases for DMA, council members SHOULD also receive the same increase in compensation.” This is a staff recommendation, which the board could reject.
    Braun-Martin said she and Richards signed the docket item because it had to go through their departments, but the final approval came from the superintendent.

  • Doctor J

    Exactly why the public needs to see all writings concerning the extension of their contracts including but not limited to the notice each of them should have filed. I was hoping those documents had been requested and produced weeks ago.

  • Doctor J

    Note that Schoenke did not approve it — he knows it’s illegal to carry on negotiations with DMA as I have pointed out. I hope someone also requests all emails and writing about the raise to DMA since the Ed Code prohibits it. Note that this request is only through June 30, 2014 and then DMA plans to come back again after June 30 to request additional raises claiming it has a secret agreement of “me too” (illegal) to match the dollar amounts of MDEA’s MDV benefits and other raises — this is despite that that 5% now to DMA is HIGHER than MDEA’s current 2014 raises. This is so underhanded and so many communications with board members under the guise of MDEA negotiations when in fact they were about DMA, violating the Brown act. Where is the Howard Jarvis Association when you need them ??

  • g. de la verdad

    Time to break with “tradition.” They should NOT have last year’s extensions increased retro-actively. The four on superintendent’s council are up for new contracts in less than 90 days. Let them cut their deals individually and/or walk if they don’t like the new offer.

  • tmharrington

    Also, trustees expect to approve layoffs for more than 27 classified employees at the same time they are approving nearly $1.2 million in administrative raises and increasing their budget for outside lawyers by $460,000.
    Interesting that the board docket for the layoffs doesn’t total the FTE amount and it’s slipped in on the consent agenda.

  • Doctor J

    CST workers get the shaft again –raises to the Big Four, raises to already overpaid Dent and site administrators and millions to outside lawyers to keep The Martin smoking guns hidden to protect administrators who didn’t do their jobs causing 13 children to be molested and CST can’t get its hours restored !! Something stinks in Denmark.

  • Doctor J

    $460,000 in outside legal fees from April 10 to June 30 ??? OMG, that is just 2 1/2 months. Has the Board gone nuts in covering up the Martin SNAFU just to protect a few administrators that should have their credentials revoked ?? Oh, I forgot, one is the daughter of our interim supt, and the others are “friends”. Why is the district more worried about keeping the enablers secret rather than helping the children victims with their trauma ??

  • Mary Smith

    Dr. J, I don’t think what is going on is unusual in terms of the nature of the litigation. The board probably doesn’t know yet the details of who did and did not act, and what defenses are available to employees. All of this is going to be fleshed out in the discovery process, and yes, that is going to be very costly, particularly where there are 3 civil suits pending. Let me tell you this: it is not only what these administrators and legal counsel did not do as part of their job to protect the children; it is also the facts of what they were doing instead of monitoring Mr. Martin that will be the most damaging to the district, if these attorneys are good enough advocates to bring out the real facts.

  • Doctor J

    @MarySmith, since you know what past and present administrators were doing instead of monitoring Martin, please put us on the right investigative trail. Even bloodhounds need the scent to track the perps.

  • Mary Smith

    You know of many of these facts yourself due to research and have posted about such activities on the blog. Was Lawrence focused at all on Martin when he was courting Chevron? What about when Eberhardt and Strange were driving out McHenry and he was fighting to keep his job-certainly McHenry was distracted. We have read Teresa’s article on no-bid contracts secured for friends which you have posted about as well; that must have taken work time and energy.

  • Doctor J

    Yes Mary, and let’s not forget an alleged philanderer reputedly involved with a voluptuous principal. If true, that certainly would be a distraction for both.

  • Mary Smith

    Dr. J, are you suggesting there were affairs during the workday? That is a powerful allegation, but, if true, would certainly be a very scandalous situation indeed. Can you imagine, how these parents of the victims would feel knowing that some of the very (well-paid) administrators and high level employees entrusted to keep their children safe, were instead engaged in affairs during the workday instead of doing their jobs?

  • g. de la verdad

    This is the tip of the iceberg. While they are set to discuss the mysterious Fisher/Taylor/mdusd case, and 12 other cases tonight, the district is also embroiled in no fewer than at least five other cases that are not on this agenda. They range from cases that will certainly go to expensive jury trials right down to Ron Hansen’s small claims case for $90.75 — with mdusd paying some attorney $200 bucks an hour to decide how to handle that one!!!!!!

  • Doctor J

    It wouldn’t be the first time. I would imagine it could have happened at different times. It’s not that unusual for an administrator to have off campus meetings at Dent or other places. Who keeps track of where they are and when they are supposed to return ? Remember when Theresa busted Lori Amenta for working on Rolen’s divorce at Dent ? There weren’t any repercussions for her.

  • tmharrington

    FYI, according to our salary PRA, here is what the council members earned last year:

    Julie Braun-Martin: $143,500.01 plus $14,694.13 in other income: $158,194.13
    Rose Lock: $148,400.01 plus $7,943.86 in other income: $156,343.87
    Kerri Mills: $147,648.98 plus $2,959.92 in other income: $150,608.90
    Bryan Richards: $144,200.01 plus $960 in other income: $145,160.01

  • Doctor J

    Perhaps Board members should read for themselves Government Code 3543.4 which prohibits the district from MEETING and negotiating with DMA. there were many meetings with Cindy Matteoni, DMA president, and it was even on the agenda of Principal’s meetings conducted by Dr. Nellie and Rose Lock. STOP the RUBBER STAMP, and ask questions about how many meetings, and why the DMA raise is being piecemealed .

  • tmharrington

    It is interesting that the agenda item says: “DMA WILL receive….At this time, the agreement is for 2013/2014…”

    Yet, there is no written agreement attached to the agenda. Where is the agreement?

  • Doctor J

    Theresa, print it ! An agreement is evidence of an illegal negotiation whether it be written or verbal. This also is clear evidence there is a secret agreement to piecemeal the raises –”at this time . . . For 2013/14.” How stupid does Julie B-M think the public is ?

  • Doctor J

    GREEDY: BIG FOUR= $610,306.91 plus benefits. They need a raise when CST members are on Food Stamps ? Shame on you Julie, Rose, Kerri, and Bryan.

  • tmharrington

    At today’s Assembly Education Committee meeting, Concord Police Chief Guy Swanger and MDSUD Teacher Anita Johnson spoke in favor of Assemblywoman Susan Bonilla’s bill to require teachers to sign something verifying that they are aware their mandated reporting duties require them to report suspected abuse to Child Protective Services or police when they renew their credentials. Both cited failure to report in MDUSD as a reason for the bill, saying sometimes failure to report is worst when the perpetrator works for the district.

  • tmharrington
  • tmharrington

    Here’s a new blog post with more details about the testimony of the Concord Police Chief and MDUSD teacher Anita Johnson in support of Bonilla’s mandated reporting bill earlier this week: http://www.ibabuzz.com/onassignment/2014/04/12/concord-police-chief-and-mdusd-teacher-express-support-for-mandated-reporting-bill/

  • Mary Smith

    On Joseph Martin, has anyone looked back at the MDEA collective bargaining agreement from 2006? It may have had a progressive discipline clause, and if Martin had no history of discipline, maybe an improvement plan was the only action that could be taken at that time under the agreement without MDEA filing for grievance. That would not excuse the failure to report the suspicion of abuse or to follow Martin, but thought it was worth mentioning.

  • tmharrington

    Would the improvement plan be in writing?

  • Mary Smith

    Yes, it would be included in Martin’s teacher evaluation(s). It would be interesting to find out what the evaluation cycle was at the time, during what years Martin was evaluated, and what the evaluations show.

  • Doctor J

    BANG files objections today. Theresa can you please post them ? They will give insight into what is being withheld by MDUSD. which administrators are being protected by the coverup ??

  • tmharrington
  • Doctor J

    WOW, Duffy blasts the District cover-up and potential hiding of records. Duffy nailed Crooksey’s inadvertent disclosure of a record that has not been produced or objected to. What concerns me is that there has never been any definitive evidence of what the search process was to uncover records such as emails, the corrective action plans detailed today on the blog, and any documents uncovered during the other investigations. Perhaps one reason is that if BANG gets the withheld records, there will be other records disclosed that MDUSD has kept hidden and secret. thanks Theresa — it was worth the read and worthy of an article. Ironically, the hearing is on the 30th, the same day as the Board meeting. if the records are unveiled that day, certain people with MDUSD may be exposed in time for public comment.

  • tmharrington
  • tmharrington