By Eduardo Rueda – Investigative Reporter
Two current Trustees and one former Trustee of the San Ysidro School District dispute the District’s official position that it properly voted to settle an employee settlement last year.
All three Trustees say that no vote was taken to approve a separation agreement that paid out over $100,000 to an employee that had been terminated by Superintendent Julio Fonseca. That employee felt he was fired only after he talked about Fonseca’s hiring of a woman he was dating.
Three other current Trustees refused to comment. Antonio Martinez, Irene Lopez, and Board President Rosaleah Pellasigue did not return repeated requests for comments.
During last week’s school board meeting, the Trustees went into closed session to discuss a separation agreement between the District and Enrique Gonzalez, an employee that left work at the District in January 2016. Last week’s meeting agenda, however, did not properly notice the topic for discussion.
After last week’s closed session meeting, conducted in private without any public input or audience, Board President Rosaleah Pellasigue read a statement that the Board had voted 5-0 to approve the separation agreement during its meeting of April 14, 2016. At the time of that meeting, no mention of a vote on the agreement was made public.
This week, two current Trustees and a former Trustee stated that no vote took place on April 14, 2016, contradicting the Board’s official reporting.
“No motion to approve the agreement was ever made and we never took a vote on it, said current Trustee Rodolfo Linares.
“I recall a consensus was reached by the Board, but will decline to comment on anything else as more information is gathered,” wrote current Trustee Marcos Diaz.
Diaz was the President of the Board at the time the agreement was executed. Diaz signed the agreement on behalf of the District the day after the meeting.
Both Diaz and Linares were elected in November 2014.
Steven Kinney, a former Trustee that was on the Board in April, but lost his election in November, also says no vote was taken during the April 14, 2016 meeting.
“I was there in April of 2016 and the Board never approved any settlement payout to Gonzalez,” Kinney said after hearing the Board’s report during last week’s meeting. Kinney was in the audience when Board President Pellasigue stated the Board’s vote from the April 14, 2016 meeting.
Under State law, an affirmative vote is required to approve expenditures, ratify budgets, hire employees, and other actions by government agencies. Lesser actions, including giving direction to staff on matters and scheduling meetings can be done by consensus, meaning all or a majority of the members agree.
The separation agreement stems from Gonzalez’s January 19, 2016, termination from his job at the District. He had only been employed there for two months.
Julio Fonseca, 41, became the Superintendent in June 2015 after the District’s former leader, Manuel Paul, was indicted in a wide-ranging corruption scandal that lead to the conviction of 15 other defendants. Paul pled guilty to accepting cash from a prospective contractor and was sentenced to 60 days in federal custody.
In December 2015, just a few months into his new job, Fonseca oversaw the hiring of Alexis Rodriguez, a woman with which he had a personal relationship. Fonseca failed to disclose the personal relationship to the Board when it voted to ratify her employment at a public board meeting on December 10, 2015.
Former Trustee Steven Kinney says he asked Fonseca at the time if he had a relationship with Rodriguez, and that Fonseca denied having anything more than a friendship with her.
That, however, conflicts with statements made by others.
In November 2015, Gonzalez ran into Fonseca and Rodriguez in La Jolla over a weekend.
The following week, while at the District office, Fonseca confided in Gonzalez that he was going to hire Rodriguez and asked that he not tell anyone about their relationship. Gonzalez worked closely with Fonseca at the District and reported directly to him. Gonzalez followed that request from his supervisor.
The following week, Gonzalez raised the issue of Fonseca’s relationship with Rodriguez to the District’s outside legal counsel, William Trejo.
Gonzalez informed Trejo that other employees in the office were discussing the fact that Fonseca was taking Rodriguez to lunch, although no one else in the office knew they had a personal relationship.
At that time, Gonzalez also discussed the issue with other District officials.
Within days, Gonzalez was directed not to report directly to the Superintendent any longer, but, instead, to report to the Assistant Superintendent. The District then closed for two weeks during the Christmas break.
Then, on January 19, 2016, Gonzalez was abruptly terminated without notice. He was never disciplined, reprimanded, or warned during his short tenure.
Gonzalez contacted an attorney to challenge his termination, feeling he was fired in retaliation for speaking up about the Superintendent’s relationship with Rodriguez.
On March 2, 2016, Gonzalez’s lawyers sent a letter to the District confirming their representation of Gonzalez, asking for insurance information, and requesting preservation of evidence related to his termination. No claim for damages was made in the letter.
The District quickly engaged in settlement talks with Gonzalez without investigating the situation. More over, the District did not hand the claim over to the County’s self-insurance fund that usually handles such cases.
Within weeks, before any legal discovery or filings outlined the details of his claims, the District offered Gonzalez a “Separation Agreement” describing “a lump sum severance payment in an amount equivalent to, and not to exceed, the combined value of one (1) year’s salary ($104,433) and one (1) years’ medical and dental benefits ($9,000 combined total), for a total of one hundred thirteen thousand four hundred and thirty-three dollars ($113,433).”
At its board meeting on April 14, 2016, the Board reported it had voted 5-0 to deny a tort claim dated March 2. No disclosure was made about any vote to approve the agreement.
The next day, the separation agreement was executed by Gonzalez and Board President Diaz, but the dates on the agreement read “1/15/16”. That date cannot be correct since Gonzalez was not terminated until January 19, 2016.
A payment was made to Gonzalez on May 10, 2016, as a payroll check with tax deduction taken out. The gross amount was $122,135.75, and the net amount was $104,980.79. The gross amount of the check was $8,702.75 more than the amount authorized in the agreement.
The steps taken by the District had the effect of keeping the entire situation hidden from the public.
When asked to comment for this story, Gonzalez said he cannot discuss any aspects of his departure from the District. Since his termination, Gonzalez has served as Chief Operating Officer of La Prensa San Diego, and as a consultant to the California Association for Bilingual Education.
Michael Curran, of Curran & Curran Law, a local attorney specializing in employment cases, reviewed the case and believes the Superintendent violated Board policies on conflicts of interest, as well as avoiding the appearance of/or actual improprieties.
“It appears the Superintendent failed to disclose a romantic relationship that would certainly have been of concern to the Board in reviewing his hiring recommendation,” Curran said.
Fonseca made statements last week to media outlets in response to an article in La Prensa on February 6, 2017. Fonseca claimed he had never hired someone he was dating, and responded to the story, saying there is “absolutely no truth to these allegations.”
But during two meetings last Thursday with La Prensa San Diego Publisher Art Castañares, however, Fonseca admitted he was having a romantic relationship with Rodriguez at the time he hired her, but stressed it wasn’t exclusive so he didn’t consider it a “relationship.” Fonseca admitted he was also seeing other woman at the time. It isn’t clear if any of those women have been employed at the District.
Fonseca said he didn’t have a committed relationship with Rodriguez until February 2016, and that’s when he considers the relationship could have become a conflict.
Fonseca’s nuanced definition of a relationship still seems to conflict with school district policies that state that the “Governing Board is committed to staff and community confidence in district hiring, promotion and other employment decisions by promoting practices that are free of conflicts of interest and/or the appearance of impropriety.”
When asked to comment this week about the timing of their relationship, neither Fonseca nor Rodriguez replied.
At last week’s board meeting, Board President Rosaleah Pellasigue maintained she still has complete confidence in Fonseca.
In reviewing the series of events, the handling of Gonzalez’s termination and subsequent separation agreement raise questions about the process used by the District.
Several lawyers have reviewed the documents in this case and agree there are, at best, holes in the process that should have been more transparent.
First, the letter from Gonzalez’s lawyers dated March 2, 2016, does not appear to meet the requirements of a tort claim required before someone can sue a government agency. The letter includes no details of a tort nor does it claim any damages for the District to consider. In several similar cases, courts have ruled that such letters do not constitute a valid claim that would merit a settlement payment.
Without a valid claim, then, any payment made would be an illegal gift of public funds under the California Constitution and state law because the agreement was not an exchange of money for a release of viable claims.
Further, without a vote of the Board of Trustees to enter into a separation agreement, no such payment could be authorized. The payment Gonzalez received was a payroll check, even though he had left the District in January after his termination.
If the agreement were found to be unlawful, the entire settlement would unravel, as happened in a case at MiraCosta Community College District in North San Diego County. If that were to happen, Gonzalez would most likely be asked to return the settlement payment, but his waiver of claims would also be rescinded, potentially leading to a new claim of wrongful termination.
One lawyer that reviewed the case raises the question of why the District didn’t tender the case to the county’s self-insured pool that usually handles tort claims, including wrongful termination.
“If the letter from Gonzalez’s attorney constituted a bona fide claim for damages, it would be important to determine whether any attempt was made to present this ostensible claim to the District’s self-insured risk pool, which would have likely reviewed the claim and rendered some determination as to whether it warranted being taken seriously,” said Richard Padilla, with the law firm of Olivarez Madruga in Los Angeles.
Mr. Padilla has served as counsel to several public agencies, as well as city attorney and city prosecutor in various cities.
As outlined in an article in La Prensa San Diego on February 10, 2017, the District has raised the issue that La Prensa’s Publisher, Art Castañares, is also the President of Manzana Energy, a company engaged in a contract with the District, suggesting some connection.
Manzana Energy is currently developing a solar energy project that will produce green energy at each of the District’s schools, as well as from a solar farm at the District’s administration center.
The company filed a lawsuit against the District in 2012 after its contract was wrongfully terminated. Manzana claimed the contract was cancelled in retaliation for not participating in a corruption scheme at the District when a Board member’s husband asked Castañares to buy them a house after receiving the solar contract. That Board member, Raquel Marquez Maden, served eight years on the Board, but chose not to seek re-election after the lawsuit was filed.
After more than two years of litigation, a jury found the District wrongfully cancelled Manzana’s contract and awarded the company a $12 million judgment. During that lawsuit, evidence was discovered that then-Superintendent Manuel Paul accepted cash from a contractor seeking work. Paul later pled guilty and was sentenced to 60 days in federal custody.
At trial, however, the judge did not allow any evidence of the corruption to be introduced. The jury reached its verdict based solely on the contract and its wrongful termination.
In 2015, the two sides reached a mediated settlement that ended their respective appeals, and reinstated the original contract. The settlement allowed the District to improve its financial status, raise its bond rating, and refinance existing bonds to save taxpayers over $50 million in payments.
Currently, after several design and engineering changes requested by both sides, the project is underway. Manzana has agreed to reschedule some of its construction to accommodate the District’s other modernization construction work. The project is expected to be completed before the end of 2017.
At last week’s Board meeting, Manzana Energy provided an update on the project. No board member raised any legal concerns with the project, and the company was asked to provide updates at future board meeting. Both sides committed to working cooperatively to complete the project.
“There is no connection between the coverage in La Prensa and the solar contract,” Castañares said. “The newspaper staff take their roles seriously and have uncovered wrong-doing by public officials at other districts, too, including Sweetwater, Poway, and the County Office of Education,” he added.
Last year, La Prensa published investigative stories that revealed Poway Schools Superintendent John Collins had taken over $345,000 in unauthorized payments from his district. Collins was placed on administrative leave and eventually fired by his Board.
Similarly, La Prensa was the first media outlet to reveal then-Superintendent of San Diego County Schools Randy Ward had given himself retroactive pay raises and manipulated his contract to receive two raises a year. Ward’s annual pay totaled more than $330,000 before he was placed on administrative leave and later terminated.
Castañares also confronted Fonseca’s public comments about La Prensa’s story.
“Fonseca called a story in La Prensa a ‘hit piece’, and said it wasn’t accurate, but now he’s relying on his definition of a relationship to defend his actions,” Castañares said. “Not since Bill Clinton’s comments about Monica Lewinsky have I heard a more indefensible denial,” he added.