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School District Retroactively OK'd More Than $200K for Foster Investigation

When the San Diego Unified school board opened an investigation into then-trustee Marne Foster, it capped the cost of the probe at $40,000. In the end, the district never made the report public — but it paid $228,000 for the effort.

Last year, when the San Diego Unified school board called for an investigation into one of its members, the board laid out the terms: The investigation would cost no more than $40,000. A full report would be provided within 30 days. And the district would bar whichever law firm it hired to conduct the investigation from doing business with the district and for an “extended period of time” to ensure the integrity of the probe.

In the end, the district held to none of those terms.

The final bill for the investigation came to $228,000. The report DLA Piper was hired to produce was never made public. And a month after the investigation into then-trustee Marne Foster came to a close in February, legal staff drew up a new contract for DLA Piper to train board members in legal and ethical issues.

It was an awkward suggestion after Andra Donovan, the district’s general counsel, had promised not to re-hire the firm doing the investigation. The board didn’t approve the new contract. It did, however, approve a proposal to pay what it owed to DLA Piper and to then terminate its relationship with the firm.

That ended up being an additional $188,000 on top of the money it had originally agreed to spend.

The district says all that money went to pay DLA Piper what it owed for its work on the Foster case.

Steve Berenson, law professor at Thomas Jefferson School of Law, said such an arrangement looks odd considering Donovan’s pledge not to rehire the firm, but would be acceptable so long as DLA Piper got authorization to keep working after it reached the $40,000 cap.

But there was no formal approval of the work until a month after Foster resigned from office and well after the investigation was complete.

“You have to ask: what did $228,000 even get you?” said Gil Cabrera, former chair of the San Diego Ethics Commission. “For the public, it essentially got them nothing because the work DLA Piper did was never released.”

The ordeal started more than a year ago, after VOSD published a series of reports that included allegations that Foster had abused the powers of public office for personal gain. Foster ultimately resigned in February as part of a plea deal.

In July 2015, Voice of San Diego reported that Foster hosted a private fundraiser to raise money for her sons’ college expenses. In September, a high school counselor said she had been suspended for writing an unflattering recommendation letter on behalf of Foster’s son. The same week, the father of Foster’s son told VOSD that Foster pressured him to file a fraudulent complaint with the district seeking $250,000.

School board members couldn’t ignore the public pressure. At a board meeting on Sept. 29, 2015 – the same night the board honored Foster with a proclamation – trustees voted to hire an outside law firm to investigate her actions.

Trustee John Lee Evans, the first to call for the probe, stressed the importance of hiring an impartial firm:

“We’re really looking for an independent investigation, someone who is not currently working for the district, or who has previously worked for the district or has any involvement with the district. The board, by commissioning this, would have no say over the investigator, this would be determined by the general counsel, and she would need to document that this is a fair party that has no interest in the outcome,” Evans said.

Donovan doubled down:

“I’m also going to recommend that the contract with the person retained for the investigation provide that the person will be thereafter disqualified from doing work with the district for an extended period of time, so that there’s no incentive or perception that the person was influenced by a desire to get business,” Donovan said.

The board directed Donovan to hire an independent law firm and provide the board with a full report within 30 days. Donovan recommended the school board approve an amount not to exceed $40,000, but said the final bill would be likely be substantially less.

Donavon turned to DLA Piper, a law firm that specializes in government investigations and white-collar defense. DLA Piper signed a contract that didn’t specify how much work it would perform or how much money it would be paid when it began its work on Oct. 2, 2015.

The 30-day deadline came and went, with no signs of a report.

“The 30-day timeframe for the investigation wasn’t practical,” a district spokesperson said at the end of November. In December, 69 days into its investigation, DLA Piper still hadn’t spoken to crucial sources.

Then, on Dec. 10, the district attorney opened a criminal investigation into Foster. The district directed DLA Piper to suspend its investigation and turn over its findings to the DA’s office.

The fiasco came to a close in February, when Foster quietly pleaded guilty to accepting illegal gifts as a public official and resigned.

That month, VOSD requested DLA Piper’s Foster report.

“There is no report to produce,” said former district spokesperson Linda Zintz. “Much of what was provided is confidential and cannot be released,” she said.

And though Donovan had pledged that whichever law firm investigated Foster would be barred from future work with the district, her department drew up a new $200,000 contract and sent it to the board for approval on March 8. Under the contract, DLA Piper would provide legal and ethical training to board members so the district could avoid another costly mishap.

Evans objected. He said that the district should simply pay what it owed to DLA Piper for the Foster investigation, and be done with it. Donovan could provide the training to the board herself, Evans said. The rest of the board agreed.

And yet, DLA Piper got the money anyway. Between April and June, San Diego Unified issued three payments to DLA Piper totaling $228,821. That’s roughly the same amount as the contract for the legal trainings, which the firm did not end up providing.

All of it went to pay DLA Piper what is was owed for its previous work on the Foster case, said district spokesperson Jennifer Rodriguez.

The new contract, however, says nothing about back fees or about terminating an agreement with the district once it’s paid. It reflects an agreement for DLA Piper “to provide legal services performed in connection with compliance with the warrant served by the San Diego District Attorney’s Office relative to charges related to former Trustee Foster.”

Evans, who earlier this month was re-elected to the San Diego Unified school board, did not respond to questions about payments to DLA Piper.

The Foster ordeal dominated headlines for seven months last year, yet barely came up in this year’s school board races. Both LaShae Collins and Sharon Whitehurst-Payne declined to discuss Foster’s actions, even as they ran to replace her on the school board.

Days before the election, Steph Groce, who lost his bid for a school board seat to Evans, said, “I think (Foster) is a topic that’s been avoided by candidates because none of us want to be the one to go negative. But it’s absolutely a legitimate concern that strikes at the heart of district leaders’ integrity.”

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