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Inside the Fight to Make Public School Misconduct Records Public

In November, Voice of San Diego asked every public school district in the county for records involving substantiated instances of employee sexual misbehavior. Twenty districts claimed to have no records, one denied the request outright, three are still gathering records and three more were taken to court by current or former teachers. At the heart of the legal battle is an uncomfortable question: How much does the public get to know about the people educating their children?

Vista High School / Photo by Jamie Scott Lytle

When a 15-year-old Vista High School freshman texted a school math teacher in 2012-13 that he reminded her of her father, the teacher responded, “Or maybe like a boyfriend.”

Three years later, school officials discovered the same teacher texting inappropriate messages to another student.

The teacher texted a student her decision to get the HPV vaccine was a good one since she will be sexually active soon, and in another message, he wrote, “I think you’re a lot like a lot of really pretty, mature and smart young ladies I’ve seen. And I know what’s ahead of you, which includes super hot older guys and mature intelligent friends.”

These are just some of the messages contained in school records that the teacher didn’t want the public to see. He sued Vista Unified School District in court earlier this year to keep the records secret following Voice of San Diego’s public records request for them last November.

The teacher – who was ultimately suspended for five days without pay and transferred to Vista Magnet Middle School, where he continues to teach, in 2016 – is still fighting to keep his identity secret.

Superior Court Judge Ronald Frazier decided May 15 that the teacher’s name and other teacher names on misconduct records at Vista and San Marcos public schools should be released, and gave them 10 days to do so. It is not yet clear whether the decision will be appealed.

In November, Voice of San Diego asked every public school district in the county for records involving substantiated instances of sexual misbehavior and misconduct for employees, agents or volunteers arising in the last 10 years. The records disclosed so far reveal dozens of instances of inappropriate behavior, including sexting, groping and sexual assault, that are newsworthy on their face. But the effort to obtain the records, and the players working to keep them secret has become its own story – one that’s still being written in the courts.

All 43 school districts acknowledged the request and many produced records without issue. Twenty districts claimed to have no such records, one district denied the request outright, three districts are still gathering records and three other districts were taken to court by current or former teachers. Whether their lawsuits are funded by teacher unions remains unclear.

At the heart of the legal battle is an uncomfortable question: How much does the public get to know about the people educating their children?

Some school districts themselves have refused to produce public records. But in several instances – like in the case of the texting teacher at Vista High – the districts are willing to turn over the documents but have been blocked by the teachers involved. Those actions are known as reverse California Public Records Act cases, or reverse-CPRAs. The cases arose after school districts notified employees they planned to release complaints, investigation records and settlements involving the employee. The teachers went to court to get an injunction to stop the release of records.

In another Vista Unified case, a former Roosevelt Middle School teacher is trying to stop the district from releasing records that show he exhibited stalker-like behavior with students. He asked students where they lived, showed up outside one student’s house to check on her and asked another student why she went straight instead of turning on her way home.

Other students reported inappropriate boundaries and touching by the teacher, and one girl said he “grazed his thumb across her breast.”

The Vista district investigated, interviewed 22 students and concluded the Roosevelt teacher “engaged in excessive, inappropriate physical contact with female students by (1) putting his arms around their shoulders and waists, (2) rubbing their backs, and (3) pulling their bodies in close to him while speaking or whispering to them. Such contact caused several female students to feel awkward, uncomfortable, or scared to be in his presence,” redacted district records show. He also has “shown excessive interest in the personal lives of female students” and “attempted to build emotional bonds with students who appear to be particularly vulnerable or may lack strong home environments.”

In September 2013, Vista Unified gave the teacher $30,000 to resign. His name has not been released yet.

VOSD has dug into the particulars of several employee sexual misconduct cases in the region’s public schools in recent months, revealing abuses of power as well as grooming by teachers trying to foster inappropriate relationships with students.

Inappropriate behavior that school officials believe is not criminal is often confidentially documented in employee files, or not documented at all, which can help predators stay in the classroom for years.

VOSD’s effort to gain access to the records means Frazier and possibly other judges will weigh at what point the public’s right to know how its government is operating trumps an employee’s right to privacy.

Court Precedent

Personnel records are largely exempt from disclosure under the California Public Records Act. School districts have long invoked that exemption to deny records requests.

But a 1978 court case brought by the American Federation of State, County and Municipal Employees against the Regents of the University of California determined privacy rights can diminish in certain circumstances.

The lawsuit was filed after a UC San Francisco employee facing discipline reported “many acts of alleged financial irregularities” by two superiors. Her claims spurred an investigation, and findings were summarized in an audit report. The employee and union asked for a copy of the audit report, and the university denied the request, claiming its release “would constitute an unwarranted invasion of personal privacy.” The court disagreed.

“Where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes; this is true even where the sanction is a private reproval. In such cases a member of the public is entitled to information about the complaint, the discipline, and the ‘information upon which it was based,’” the appellate court decision says. “Where there is reasonable cause to believe the complaint to be well founded, the right of public access to related public records exists.”

The case provided a new legal standard for governments to use when weighing employee privacy rights against the public’s right to know about alleged wrongdoing. It also made clear cases resulting in even low-level reprimands, not just more severe suspension or dismissal charges, need to be made public.

Two other cases are especially relevant to the current legal challenges over school misconduct records sought by VOSD.

First in 2004, the Bakersfield Californian newspaper sued the Bakersfield City School District for disciplinary records for vice principal Vincent Brothers. Of interest was a 1996 incident that the court said involved “Sexual type conduct, threats of violence and violence.”

The Kern County Superior Court found the “complaint is substantial in nature and that there is reasonable cause to believe the complaint is well founded.” It ruled the records of the incident must be produced – including Brothers’ name.

An appellate court upheld the decision, writing, “Where complaints of a public employee’s wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from baseless or trivial, and there is reasonable cause to believe the complaint is well founded, public employee privacy must give way to the public’s right to know.”

School attorneys sent memos to clients up and down the state following the decision, noting the disciplinary records described by the court included complaints, investigation records and memos related to the misconduct.

In 2007, Brothers was convicted of killing his three children, estranged wife and mother-in-law in 2003.

“Where there is reasonable cause to believe the complaint to be well founded, the right of public access to related public records exists.”

Several years later, in 2012, another records case sent shockwaves through the public school system.

This time, a parent requested investigation records for Santa Monica High School teacher Ari Marken, who was found to have sexually harassed a student in 2008. He was reprimanded but allowed back in the classroom following a school investigation.

Marken was notified by the school district that the investigation report and reprimand were going to be released to the parent, and Marken sought an injunction against the district in court, arguing the release would violate his rights to privacy.

The trial court ordered the records be released, writing, “The public has a significant interest in the competence and misconduct of public school teachers teaching their children, especially allegations of misconduct that have a negative impact on their children. The public also has a significant interest in knowing how a school district responds to allegations of misconduct or improper behavior towards students by teachers.”

Marken appealed the decision and lost.

Even though Marken is not a high-profile public official like a superintendent, “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy,” the appellate court found.

The parent who requested the records tried to argue Marken could not file a reverse-CPRA action, but the appellate court said he’s wrong – setting the stage for the cases happening locally and elsewhere in the state.

When local schools gathered records to release to VOSD’s public records request, they sent out “Marken notices.” The notice alerted the employee about the planned records release and gave them a deadline to sue the district for an injunction to prevent the records from becoming public.

Some teachers in Vista, San Marcos and Oceanside went to court, but three Oceanside teachers dropped their cases when Voice of San Diego offered to forgo pursuing attorney fees against them if they abandoned the legal challenge.

The Vista and San Marcos teachers didn’t take the offer.

What We’re Not Seeking

The standards laid out in earlier court cases only allow VOSD and the public at large to seek records that are both substantial, and have been substantiated, or cases where the employee has been disciplined or reprimanded for the misconduct in any way.

That means there is a whole cache of records that might deal with very serious allegations – but that couldn’t be substantiated by investigators – the public will never see.

VOSD is not pursuing records that don’t meet the legal standard for release.

In one case, Oceanside Unified initially gathered sexual misconduct records for release but later determined the claims involved had not been substantiated. After learning the records had been misidentified for public release, Voice of San Diego abandoned the legal effort to obtain those records.

In the teacher cases still pending, the school districts reprimanded or negotiated departures for the teachers after investigations determined sexual misbehavior claims were credible.

When schools do provide employee misconduct records, student names and identifying information is withheld. VOSD is not asking schools for student names.

Who’s Behind the Reverse-PRAs

Exactly who is paying for the teachers’ privacy fights isn’t totally clear.

Members of the California Teachers Association receive legal services in employment matters “to assure that their contractual, statutory, and constitutional rights are protected” and may receive legal defense costs for some civil or criminal cases.

Claudia Briggs, spokeswoman for the California Teachers Association, declined to say whether CTA was funding educator reverse-CPRA cases locally and elsewhere, but said in a general statement CTA supports the efforts.

“Teachers have every right to enforce their right to privacy,” Briggs wrote. “The law already makes clear that various information in personnel files is private and confidential. The public only has an interest in knowing about very serious findings of substantial employee misconduct, based on well-founded complaints and a neutral investigation, which resulted in significant discipline.”

“Teachers have every right to enforce their right to privacy.”

San Diego attorney Jon Vanderpool often represents local teacher unions, and is representing several educators fighting to keep their records secret.

When asked who his client is and whether unions are paying all or some of the costs, Vanderpool replied in an email, “my clients are personally, financially obligated and committed to defending their and their students’ rights to privacy.”

‘When You Are a Public Employee, You Are Held to a Higher Standard’

In some ways, reverse-CPRA cases turn the system on its head and put school districts – which themselves often fight against disclosing records – in the position of arguing for transparency and records release. How good a job they do varies.

“Even an agency that recognizes that it must release public records under the CPRA may be unwilling to invest the time and resources needed to robustly defend that position in court,” the California News Publishers Association argued in a friend of the court brief for a recent reverse-CPRA case involving the city of Pasadena, a Pasadena police officer and the Los Angeles Times. “In addition, because access to public records ‘makes it possible for members of the public to expose corruption, incompetence, inefficiency, prejudice, and favoritism,’ … the requester’s and the agency’s interests generally will not be aligned. In some cases, the public agency defending a reverse-CPRA action may actually wish to withhold the requested records and will not actually be adverse to the third-party plaintiff.”

Nikki Moore, legal counsel for the California News Publishers Association, said reverse-CPRA cases “do a great job delaying and denying access to public records that should be disclosed.”

That VOSD’s records “request sparked so many legal challenges is troubling itself and really exemplifies the fight it takes to get public records and particularly when you have individuals who are trying to usurp the agency’s ability to release public records, which is its legal duty to do. … It throws a wrench into the whole system of how public records are to be disclosed,” Moore said.

Ultimately, “when someone works for a public agency, they need to know their privacy is less,” Moore said.

Moore also sees a broader effort being made in reverse-CPRA cases.

“These cases represent a larger effort to establish a greater right of privacy for public employees than what the courts have long said they are due,” Moore said. “When you are a public employee, you are held to a higher standard. You have to know if information about your employment rises to a certain level, it’s going to become public and it’s subject to scrutiny. I don’t think we are doing public employees any good saying they can hide bad behavior.”

In the cases spurred by VOSD’s request, the San Marcos and Vista school districts have become transparency advocates in court.

Other districts, like the La Mesa-Spring Valley School District, didn’t even wait for an employee challenge to fight VOSD’s request. An attorney for La Mesa-Spring Valley schools told VOSD releasing employee names on the substantiated sexual misconduct records would invade their privacy, unless we provide the employee names desired.

It’s a Catch 22: The district won’t release employee names unless VOSD asks for the names directly. But without the district disclosing the names to begin with, we don’t know which employees were found responsible for sexual misconduct or whether they are still employed in the district or elsewhere.

The region’s largest public school system, San Diego Unified School District, has yet to produce a single record.

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