Del Mar Union’s legal battles


By Marsha Sutton

Senior Education Writer

Bowing to the Great Bureaucracy, I reluctantly paid the San Diego County Office of Education $1.52 to receive a piece of paper listing all the legal fees incurred from December 3, 2010 to August 2, 2011 for the Sharon McClain vs. Del Mar Union School District litigation.

Although this information should be made available to the public without having to jump through so many hoops, particularly considering that it was a single, readily accessible page, sometimes it’s easier to give in than stand and fight on principle, when the amount of money is so minimal.

So that’s how we know the cost of this lawsuit is approaching $90,000 so far, excluding the hearings that took place last month and all the hearings and court actions yet to come.

McClain, the former DMUSD superintendent, sued the district last October after she was released in March 2010. In 2010, before the suit was filed, DMUSD superintendent Jim Peabody said the legal fees incurred by the district were $12,762.

Once the suit was filed, the district’s litigation insurance carrier, the San Diego County Schools Risk Management Joint Powers Authority, took over. At that point, all legal fees were covered by the JPA, less a $1,000 deductible and the district’s annual premium of $21,808, Peabody said.

According to information provided by SDCOE on that piece of paper, the insurance carrier paid $74,896.45 — all of it, except about $3,600 — to the district’s law firm on the case, Stutz Artiano Shinoff & Holtz. With the district’s $12,762, this brings the total to about $87,600, to date.

Back in May, I attempted to learn the costs without having to comply with SDCOE’s ridiculous demand for $1.52 to receive the information. But Diane Crosier, SDCOE’s executive director of the San Diego and Imperial County schools JPA, refused to comment, referring me instead to DMUSD attorney, Dan Shinoff.

Shinoff did not reveal specifics but suggested that McClain’s attorney, Dale Gronemeier, was “trying to make it as expensive as possible.”

Gronemeier, last week, objected to this comment, saying that Shinoff’s firm was the one employing delaying tactics and driving up costs.

In Sept. 14 and Sept. 15 emails, Gronemeier wrote, “The Shinoff firm has stonewalled on discovery since last December by filing evasive responses and baseless objections to interrogatories and document demands and by refusing to allow Board of Education members to be deposed.”

He said Shinoff and his team “would not legitimately respond to the most obvious and simple discovery requests” and unnecessarily increased billing hours.

Gronemeier said Shinoff’s firm is paid an hourly rate, while his firm “is a hybrid partial hourly, partial contingent fee arrangement.”

He said his fee structure pays most but not all of his firm’s overhead costs. To be paid personally, Gronemeier said he has to win the case. So billing extra hours, he said, “decrease[s] my firm’s profits from which I get paid rather than increasing them.” He said his firm’s payment structure “disincentivizes me from milking a case.”

The courts validated Gronemeier’s complaints, he said, at a hearing Aug. 19 when the judge ruled that the school district needed to provide documents requested months ago and allow the depositions of specific board members.

Regarding a possible settlement, DMUSD trustee Doug Rafner, in an email to Peabody dated May 17, 2011, wrote, “I personally would like to discuss resolving this case in some way that does not involve running the district through the mud. Would the ‘insurance’ pay for a settlement of a case, or only for judgments?”

Peabody responded to Rafner, writing, “We will get this on the agenda for the next meeting.”

As this case churns through the courts, talk of a settlement seems to have dissipated.

CPRA lawsuit

These McClain-related emails were among those released by the district to Del Mar parent Michael Robertson after he filed a California Public Records Act request May 10 on an unrelated topic: the Week of Action last spring sponsored by the California Teachers’ Association, which was organized to rally parents and teachers to support more funding for education.

Robertson said the material he received was incomplete, and that the district and its lawyers (Stutz Artiano Shinoff & Holtz) were unresponsive to repeated attempts to obtain all requested documents related to the Week of Action.

On Aug. 8 he filed a lawsuit against the DMUSD to force the district to comply with the CPRA request. To date, the district has not responded to the suit, he said.

A letter supporting Robertson from former Del Mar parents John and Susan Miller was entered into the public record at the school board’s July 27 meeting. The letter expressed “concern and disappointment with the district’s apparent reluctance to respond” to Robertson’s CPRA request.

“The community expects our elected and appointed leaders to fully embrace and promote the concept of complete transparency,” the Millers wrote, asking the district to stop “delaying requests for information that belongs to the public.”

Of all the excuses the district gave for denying Robertson’s request (a letter dated May 27, 2011 from DMUSD assistant superintendent of human resources, Tim Asfazadour, offers a number of reasons), none was more outrageous than this one: that the records sought are exempt from disclosure “because the public interest in not disclosing the information clearly outweighs the public interest served by disclosure.”

It’s hard to believe a public employee would actually put a provocative statement like that in print. Makes you wonder what they’re hiding.

Unless the documents contain national security or nuclear secrets, no public interest can be served by suppressing this material. To claim the district can withhold what’s clearly public information to “safeguard the public interest” is patronizing, officious and insults our intelligence.

Meanwhile, taxpayer money is being spent to fight Robertson in court. Don’t expect Robertson to cave. This will drag on until the DMUSD releases those documents.

Marsha Sutton can be reached at