Taxpayer Watchdog Group Sues San Ysidro Superintendent
March 3, 2017
By Eduardo Rueda – Investigative Reporter
A local taxpayer watchdog group has filed a lawsuit against the San Ysidro School District Superintendent alleging he illegally spent school district money.
The local non-profit, San Diegans for Open Government, known as SanDOG, claims Superintendent Julio Fonseca misused public money when he paid $113,433 to a terminated employee back in May 2016. That payment was connected to a settlement agreement with the employee that SanDOG argues was never properly approved by the District’s Board of Trustees.
“At this point, [Fonseca’s] fraud against the taxpayers cannot be ratified by so-called stewards of the public trust — a handful of trustees — who do not care how unethical their soldier is as long as he carries out their will,” said Cory Briggs, SanDOG’s lawyer who filed the lawsuit.
The lawsuit stems from allegations Fonseca wrongfully terminated an employee that had raised concerns over Fonseca having hired a woman he was dating. At the time the woman, Alexis Rodriguez, was hired in December 2015, Fonseca had not yet disclosed his relationship with her to the Trustees.
The terminated employee, referred to as “Whistleblower” in the lawsuit, retained a lawyer after he was fired, but he never filed a tort claim as required by law before someone can sue a public entity.
In two previous La Prensa San Diego articles, the terminated employee has been identified as Enrique Gonzalez. Gonzalez had only been a district employee for a month when he was terminated. After his termination, Gonzalez became the COO of La Prensa San Diego.
Within weeks of his firing, but before he could file a formal tort claim, the District negotiated a “separation agreement” with Gonzalez in an effort to fend off a formal claim that would expose Fonseca’s misdeeds. The agreement was not approved by the school board.
Three Trustees have confirmed to La Prensa San Diego that no formal vote was taken to approve the agreement. Even without a vote, however, Fonseca authorized the payment to Gonzalez.
“Simply put, Fonseca was buying Whistleblower’s silence in order to protect Fonseca’s job and reputation,” the lawsuit claims.
La Prensa San Diego first reported the seemingly illegal payment on February 6, 2017. Although the payment was made in May 2016, the true nature of the District’s actions to conceal the agreement were not known until January 2017.
The lack of a formal vote by the Board of Trustees meant that the agreement, and subsequent payment, were not disclosed to the public at the time they were made. The District also did not forward the case to the County Office of Education’s self-insured risk pool, which would have asked for backup documentation to justify the settlement payment.
“To minimize the potential that his intimate sexual relationship with Rodriguez would become publicly known, Fonseca used the authority of his office as SYSD’s superintendent to cover up his malfeasance as a public official,” the SanDOG lawsuit claims.
During the past two weeks, after news of the illegal payment became public, Board of Trustee President Rosaleah Pallasigue has continued to defend Fonseca.
“As the Board President, I can confidently state that Dr. Fonseca is completely transparent with the board in all aspects and keeps the board fully informed,” Pallasigue wrote in an open letter posted on the District’s Facebook page on February 16.
Two of Pallasigue’s fellow Trustees, however, have emailed her stressing that her letter should not speak for the entire Board. No board action was taken to authorize the open letter on behalf of the Board of Trustees. It appears Pallasigue’s letter only stated her own opinion, but it gave the appearance of a Board united behind Fonseca.
The lawsuit filed this week alleges Fonseca violated his legal duties under Penal Code Section 424, Government Code Section 8314, Code of Civil Procedure Sections 526 and 1060, and the California Constitution, among other provisions of law pertaining to the misuse of public funds.
A case decided by the California Supreme Court last year held former Beverly Hills Superintendent Jeffrey Hubbard criminally liable under Penal Code Section 424, on the grounds that he used his position as superintendent to direct the payroll department to increase the compensation of a female employee, without obtaining the governing board’s approval of the increase.
“There is no meaningful distinction between what the defendant in Hubbard was convicted of doing and what Fonseca did in order to buy Whistleblower’s silence,” the lawsuit claims.
In that case, Hubbard was sentenced to 60 days in jail, three years’ probation, paid a $6,000 fine, and was ordered to return the $23,500 in unapproved payments he had made to a subordinate.
For his part, Fonseca has maintained he did not inappropriately hire any employee, yet his claim is based on his assertion he did not have a relationship with Rodriguez until after he hired her. That claim, however, has been disputed by Gonzalez and several District officials.
Fonseca claims he did not have an exclusive personal relationship with Rodriguez until February 2016.
“The Superintendent clearly knew he was doing something wrong by not telling the Board of Trustees that he was sleeping with a woman he recommended for hire,” Briggs said.
The illegality of the payment hinges both on the fact the Board never voted to approve the agreement, and that it doesn’t appear there was a valid claim for damages in the first place.
“Against the board’s directive, he spent at least $113,433 to cover up behavior he knew was inappropriate,” Briggs said. “The cover-up is always worse than the crime.”
Briggs and SanDOG have sued several other local governmental agencies on behalf of taxpayers in recent years.
In 2014, SanDOG successfully overturned a hotel tax passed to fund the expansion of San Diego’s Convention Center. The Court of Appeals throw out the tax as unconstitutional and in violation of the City’s Charter.
More recently, SanDOG joined Sweetwater Union High School District to sue contractors that had participated in a wide-ranging corruption scheme that led to the indictment of 15 individuals. SanDOG helped recover $8.5 million from three former contractors.
In this lawsuit, SanDOG is suing Fonseca individually, not in his official capacity.