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.

This is from VOSD’s weekend report on the odd way the scandal is unfolding in California’s second-largest school district:

Last Tuesday, trustees emerged from a three-hour closed-session meeting and announced they’ll vote this week on hiring an investigator to look into a private fundraiser Foster held for her sons, and whether Foster was behind a complaint that sought $250,000 in response to a negative college evaluation letter written about her son.

 

Trustee Richard Barrera said he will ask the board to consider which issues are truly relevant to the school district.

 

“With the legal claim, we need to be thoughtful about what is in the district’s interest considering that this claim was already dismissed, and no money was paid,” Barrera said. “From the district’s standpoint, the matter is settled.”

 

Barrera said conversation about the allegations should be tempered with a show of support for Foster’s efforts to promote equity for all students. That’s why he and trustee Mike McQuary moved forward on the proclamation.

 

“I’m concerned there’s a single story getting out there about Marne,” Barrera said. “I just want to make sure we don’t lose sight of the work she’s done.”

Powerful union leader backs his protege

Barrera’s emergence as a Foster defender is a big development in that he has far more political clout than all the other board members combined. His full-time job is as secretary-treasurer of the San Diego Labor Council, an omnibus union group. He helped persuade Foster, a community college teacher and school activist, to run for school board.

It’s also good news for district Superintendent Cindy Marten. Many school boards would have reacted differently to news of a superintendent countenancing a board member throwing her weight around and causing major problems at a respected district school because her son didn’t get a favorable college reference.

As CalWatchdog reported previously …

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.

Mitzi Lizarraga, the school principal, also was punished for the actions of her staff. This is from the Voice of San Diego:

Lizarraga said as the 2013-2014 school year drew to a close, Foster’s son had unresolved behavioral issues. Students have to meet with a school committee to review the issues before they’re allowed to participate in end-of-the-year activities. Foster’s son did not appear for the review, Lizarraga said. For that, he couldn’t go to prom – the same consequences students in similar situations face.

 

Not long after, Lamont Jackson, the area superintendent responsible for the school, requested a meeting with Lizarraga. He was there to tell her Foster’s son would be attending the dance, she said.

 

“At that point, I just threw my hands up and said, ‘Fine. I’m so sick of Marne Foster. I’m tired of her throwing her weight around and her thinking the rules don’t apply to her,’” Lizarraga said.

 

She said she was shocked by what came next.

 

“He said, ‘Good. Now that that’s resolved, let’s talk about where you’re going to be next year. We have some questions about your leadership at this school,’ ” Lizarraga said.

 

Lizarraga would not complete the year. Jackson asked for her keys to the school, she said, and she was not allowed to attend the school’s graduation ceremony.

The same article details how Barrera made Foster his handpicked candidate to run for the school board in 2012.

Foster is up for re-election in 2016.