The claims have always been dubious, according to experts on state privacy and labor relations statutes. Law enforcement officers are strongly protected by both state laws and a controversial court interpretation of those laws. But rank-and-file government managers and employees who make mistakes have long been exposed or protected at the whims of city managers or mayors or school district superintendents.

The California First Amendment Coalition notes that governments officials often assert that personnel, medical and similar files are exempt from disclosure: “This exemption is routinely invoked when the public agency believes a request seeks information pertaining to identifiable public officials or employees that is private, sensitive or controversial. But in fact, the information may only be withheld if its disclosure ‘would constitute an unwarranted invasion of personal privacy.’ (Government Code § 6254(c)). That is, and is meant to be, a high threshold.”

Now a potentially landmark case is unfolding in San Diego Unified, the state’s second-largest school district, that could expose the discretionary nature of government officials’ sweeping claims of privacy for employee conduct.

Near the end of the 2013-14 school year at the district’s School of Creative and Performing Arts, Superintendent Cindy Marten refused to disclose the specific details of the decision to abruptly reassign Principal Mitzi Lizarraga and lock her out of the school. Rumored penalties given to a school counselor were also judged as protected by privacy laws.

But then the heat built on Marten and school board President Marne Foster over several Foster actions that raised questions about her ethics and judgment. A May 2015 grand jury report, without naming Foster, blamed a school board member for the School of Creative and Performing Arts’ shakeup. The grand jury corroborated what school activists had said about Foster reacting with fury to a negative college recommendation for her son, who was a senior in 2013-14, and said the district needed better rules to prevent improper board member interference.

Three months later, in the district’s official response, Marten dismissed the grand jury report as too vague to act on and as calling for safeguards against board member interference that were already in place.

School district cites privacy exemption, then says never mind

But Voice of San Diego pursued the matter and landed the first interviews with Lizarraga, now principal of the Los Angeles County High School for the Arts, and  Kim Abagat, a counselor who had been suspended for nine days.

Both described Foster as a nightmarish force at their school. Abagat said she had been punished for accurately describing her son’s record at the school. Lizarraga said she was abruptly reassigned by one of Marten’s top aides after Foster’s son was barred from the prom because of behavioral lapses.

This led Marten to issue 61 pages of internal district documents, including a private investigator’s report, that she said showed that she and the district had responded properly to Foster’s interference at the school and that the district had been justified in its personnel decisions. The superintendent said because of their interviews, the district was now justified in releasing information about Lizarraga and Abagat it had previously said it could never release.

But Lizarraga and Abagat didn’t agree, and they have hired a San Diego criminal defense lawyer, who strongly hinted a lawsuit was to come because the privacy rights of his clients had been abused. Such a lawsuit could be a landmark in that it might establish just how much of a right to privacy that school employees have, and if those rights are somehow vacated when they publicly respond to criticism of their job performance.

There is a bizarre element to the case. District documents credibly showed why Abagat’s punishment may have been deserved; counselors with deep concerns about students are supposed to pass college evaluations on to colleagues who may have a different opinion. She also got basic information about Foster’s son wrong.

However, Lizarraga wasn’t punished; she was reassigned to a position invented for her that she held for a few months before taking the Los Angeles job.

So San Diego Unified officials are in the peculiar position of saying Lizarraga’s job performance was so bad they had to abruptly promote her and that the decision wasn’t influenced by Foster’s fury over her son being punished and judged a poor college prospect but by a long accumulation of management miscues.

Lizarraga may not have much of a case that her privacy rights were violated. As the principal of a high-profile high school, reasons for her reassignment should be public record, according to the First Amendment Coalition. But when it comes to a defamation case, San Diego Unified’s vulnerability appears high.

Both relate to what happened at the district’s School of Creative and Performing Arts, where her son graduated last year. Kim Abagat, a school counselor, came forward to tell the Voice of San Diego that she had been suspended by the district for nine days for not writing a laudatory college recommendation for Foster’s son, who was ranked 100th in GPA in a class of 147. Abagat said she was punished for telling the truth.

School counselors are the ones who complete an evaluation form – attesting to students’ talents – which are then sent to prospective colleges.

 

In boxes where counselors rate students in terms of academics, extracurricular activities and character, Abagat listed Foster’s son as average or above average. But she checked a box that indicated there was “no basis” to recommend him to college.

 

Abagat said she thought she was doing the student a favor by not recounting in detail his documented behavioral problems.

Former principal had already blasted Foster

The school’s 2013-14 principal has already blamed Foster for her abrupt reassignment and eventual decision to leave San Diego Unified for a job in Los Angeles, sharply criticizing district Superintendent Cindy Marten and her staff for allowing Foster to throw her weight around at the school. But Abagat’s interview with Voice of San Diego and its research fill in the backstory of the lengths to which the district tried to make Foster happy.

The letter kicked off problems for Abagat. In the days after she submitted it, emails show, her access to the college application system was cut off. She could no longer send out recommendation letters on students’ behalf.

 

Another counselor, Megan Blum, wrote a new evaluation for Foster’s son to replace the negative one. Blum listed the student as “Outstanding (top 5%)” and “Top Few (top 1%).”

 

It was a remarkably different interpretation of the same student and grade point average.

Foster declined comment.

Claim: Foster filed $250K damage claim, lied about it

Voice of San Diego followed up this bombshell with another one.

San Diego School Board President Marne Foster months ago distanced herself from a claim seeking $250,000 for the problems a negative college evaluation had allegedly caused her son.

 

It was the student’s father, John Marsh, who filed it. Foster told the Union-Tribune she was “not a party to the claim” and would not comment on it.

 

The problem with that story? Marsh says he didn’t write it – Foster did.

 

“She brought me a blank complaint form and said, ‘Sign it.’ So I did. And I didn’t think twice about it until there was backlash,” Marsh said.

 

The claim, a necessary step before anyone is allowed to file a lawsuit against the district, said the college evaluation of Foster and Marsh’s son by a counselor at the School of Creative and Performing Arts was “willfully damaging,” and the family needed $250,000 to handle trauma and recoup losses from his rejection to many prestigious universities.

Foster again declined comment to Voice of San Diego. The district quietly rejected the $250,000 claim.

Earlier this month, Foster tried to quell another controversy by saying it was a bad idea to hold a fundraiser in July to help cover college costs of two of her sons — an event  she publicized using district resources. The fundraiser was held at a facility with a district contract and was attended by representatives of institutions that seek favor from the district, such as the head of the teachers union and organizations seeking to provide services to San Diego Unified, the state’s second-largest school district with more than 130,000 students and a $1 billion-plus budget.

Self-serving fundraiser a ‘mistake of the heart’

Foster initially depicted criticism of the fundraiser as politically motivated. But after community criticism built and the state Attorney General’s Office launched an inquiry into the legality of a raffle held at the event, she changed her tune, calling the fundraiser a “mistake of the heart.”

Foster, a community college teacher, was elected to the board in 2012.

Frank Engle, a parent of a student at the School of Creative and Performing Arts, first reported on Foster’s unusual interventions on his website in June 2014. But the backlash didn’t begin until a May grand jury report knocked weak ethical standards in the school district and cited Foster’s actions without naming her specifically.

Engle believes that far more blame should be given to Marten, the district superintendent, who has defended what happened at the school while offering no public criticism of Foster. A stock photo Engle uses on his District Deeds website depicts Marten as Foster’s “accomplice.”