Education Matters: Measure MM funds used for legal fees


Revisiting decisions made by voters is never a good idea. Too often people say they would never have voted the way they did had they known … whatever.

Marsha Sutton
(File photo)

Yet, looking back on actions that cannot be undone can prove worthwhile if it means influencing a different decision in the future.

Take the passage by voters of Del Mar Union School District’s Measure MM in 2018, which is providing the district with $186 million through increased property taxes.

DMUSD Superintendent Holly McClurg confirmed on June 11 that the district has used Measure MM money to pay legal fees amounting to just shy of $260,000.

Expenditures through April 30, 2021, she said, totaled $309,905, of which $50,000 was paid through JPA insurance coverage.

Now add $160,000 to that $260,000.

“The court has awarded Save the Field recovery of attorney fees pursuant to Code of Civil Procedure section 1021.5 in the amount of $160,387.30,” said McClurg in the June 11 email.

At that time, she said the payment could be made from either the general fund or Measure MM.

In a June 24 update, McClurg wrote, “The district will pay the attorney fees from Measure MM funds.”

That brings the total amount of taxpayer bond money going toward legal fees, so far, to about $420,000.

At issue is the ongoing Save the Field lawsuit which challenges the proposed rebuild design of Del Mar Heights Elementary School.

The Measure MM bond language approved by voters is specifically limited to “renovation, modernization and repair of existing district schools and school facilities.”

The bond finances were also approved by voters for the land purchase, design and construction of the district’s ninth elementary school, Pacific Sky, in east Pacific Highlands Ranch – scheduled to open in August of 2022 with a projected 375 students in grades K-6.

One of the taxpayer protections, as listed in the voter-approved measure, states, “Bond funds shall be used only for the school facilities projects identified herein, and not for any other purpose.”

There’s no mention of legal fees in this language.

McClurg said the district “sought guidance from our legal counsel regarding such expenditures” and lawyers deemed it acceptable.

“The legal fees associated with environmental litigation related to the Del Mar Heights Rebuild Project are within the authorized expenditures related to the project, and Measure MM funds may be used for such purposes,” she said.

Salary increases

A second taxpayer protection listed in the voter-approved measure states, “Bond funds shall not be used for teacher or non-construction related administrator salaries or other non-construction related operating expenses.”

This provides a second argument which would seem to limit the district’s ability to pay for legal fees with bond money.

But it does something else: It frees up district general fund money to provide salary increases.

Technically, raises and bonuses cannot come from Measure MM funds. However, if the district no longer needs to use general fund money for facility repairs and renovations, then more general fund money is available to use at the district’s discretion.

In June the DMUSD’s school board approved a one-time 4% salary increase for its teachers, retroactive to July 2020, according to a U-T Community Press report.

The agreement also included a $500 increase to health and welfare benefits.

DMUSD teachers received a combined 6% salary increase – a 4% increase in 2018-2019 and 2% in 2019-2020 – which carries forward.

According to the report, the district projects a $1 million surplus for the 2020-2021 school year, and a budget surplus of $1.4 million for 2021-2022 with reserves of $15.2 million (about 22.2% of the total budget).

McClurg’s salary with benefits in 2019 was $346,137, according to Transparent California. This is higher even than Cindy Marten’s when she was superintendent of the San Diego Unified School District which has nearly 30 times the number of students as Del Mar.

Interestingly, Calif. Gov. Gavin Newsom’s earnings (salary and benefits) in 2019 were about $270,000.

According to the 2020 San Diego County Schools Teacher Salary Survey, the DMUSD ranks highest in the county for pay for teachers with a master’s degree and 20 years of experience, at $109,994, with the Solana Beach and Encinitas Union school districts closely behind.

In all other categories, the DMUSD ranks in the top four of all school districts in the county for the highest teacher pay.

Complaints about not being able to afford programs like transitional kindergarten, which district officials have said before, ring hollow when such bonuses and salaries are provided.


The budget is not the only issue of concern to stakeholders.

Community energy for the controversial Heights rebuild project has been waning recently. It’s not only the ongoing legal battles but new demographic studies factor into the lowered enthusiasm.

The latest 2020-2021 projection report by Davis Demographics shows declining enrollment for K-6 students residing west of I-5, in the combined Del Mar Heights and Del Mar Hills school areas – from a high of 603 in 2017-2018 to a projected 462 10 years later.

In 2017-2018, enrollment was 504 students at the Heights and 310 at the Hills, with students from other areas factored in.

For 2022-2023, Davis projects 395 at the Heights and 228 at the Hills.

A bit of radical thinking about the Heights rebuild may be needed, given the declining enrollment projections and unanticipated litigation costs.

If plans were dramatically scaled back, even to the point of simply removing the deteriorating portables and modernizing the existing school, the lawsuits would likely disappear and serious taxpayer money could be saved.

My public wish list more than a decade ago was to combine the Hills and Heights, with one serving students in K-2 and the other with students in grades 3-6. This would unite the communities west of I-5 and consolidate resources.

Perhaps it’s not too late to think differently about the massive Heights rebuild, given the obstacles the project faces.

The budget

Concerned about district finances, DMUSD trustee Katherine Fitzpatrick had asked McClurg a number of clarifying questions about the budget at a public board meeting in May.

In this exchange, heard on the May 26 board meeting recording, board president Erica Halpern said, “I would have to ask Dr. McClurg if spending time addressing those additional questions would divert our resources from other efforts that you have.”

McClurg responded, “It would and we’ve answered a lot of questions … it definitely takes time away from other important work.”

“Erica, I really take issue with that question,” Fitzpatrick replied. “I have a fiduciary responsibility, and understanding budget presentations and being able to ask follow-up questions is well within my right as a trustee. And it’s actually what I should be doing rather than the opposite.”

After the meeting Fitzpatrick said, “We’re seeing things for the first time as they are presented and then we’re frowned upon when we ask follow-up questions.”

In years past, staff complained that questions board members asked at board meetings took them by surprise and requested that trustees ask their questions before public board meetings so staff can be better prepared.

How inconvenient when trustees ask staff reasonable and pointed questions that require time to answer.

Concerns about finances, declining enrollment numbers and the questionable use of Measure MM money might diminish with some fresh eyes and creative thinking about new ways to approach the district’s evolving needs.

Opinion columnist and education writer Marsha Sutton can be reached at