MONDAY, SEPTEMBER 10, 2012; 9:47 A.M.

THE COURT:
I'VE READ THE BRIEFS AND DO YOU WANT TO PROCEED WITH OPENING STATEMENT?

MR. GRONEMEIER:

THANK YOU, YOUR HONOR.

IN EARLY 2008 THE DMUSD BOARD BOUGHT OUT ITS LONG-TIME SUPERINTENDENT TOM
BISHOP WHICH RESULTED IN A LOT OF OUTRAGE FROM THE COMMUNITY AND A LOT OF
PUSH BACK.

SIX, EIGHT MONTHS LATER DR. MCCLAIN LEFT HER JOB AS A SUPERINTENDENT, HERMOSA BEACH SCHOOL
DISTRICT TO BECOME THE NEW SUPERINTENDENT IN SEPTEMBER. PARTIES MADE A CONTRACT, DR.
MCCLAIN WOULD RUN THE DISTRICT FOR FOUR YEARS, WHILE THE SCHOOL BOARD SET POLICY AND
OVERSAW DR. MCCLAIN EXECUTIVE LEADERSHIP. THOSE DUTIES ARE DELINEATED IN THE CONTRACT. THE
SCHOOL BOARD DID NOT LIKE DR. MCCLAIN,WHAT SHE WAS DOING.

THE CONTRACT ALLOWED IT TO FIRE HER, FOR NO CAUSE, BUT ONLY IF IT PAID HER A
YEARS' SALARY AND GAVE 30 DAYS' NOTICE OF INTENT TO TERMINATE HER WITHOUT
GOOD CAUSE.

THINGS WENT SMOOTHLY FOR THREE MONTHS BUT DECEMBER 2008, IRONICALLY, SHE WAS HONORED BY
PEPPERDINE UNIVERSITY AS SCHOOL SUPERINTENDENT OF THE YEAR.

THE WEALTHY HEIRESS KATHERINE WHITE BECAME THE SCHOOL BOARD PRESIDENT, AND
SHE WANTED TO DO THE SUPERINTENDENT'S JOB BY MICROMANAGING THE DISTRICT.

WHITE CREATED CONFLICT FOR A YEAR WITH DR. MCCLAIN, EXECUTIVE'S LEADERSHIP
AND WAS, UNFORTUNATELY, SUPPORTED BY THE REST OF THE TRIO WHO ... HAD BOUGHT
OUT SUPERINTENDENT BISHOP.

BECAUSE THE COMMUNITY HAD BEEN OUTRAGED BY SUPERINTENDENT BISHOP'S FIRING,
THE TRIO DECIDED NOT TO TAKE THE CONTRACT'S HONORABLE WAY OF TERMINATING
DR. MCCLAIN FOR NO CAUSE AND PAYING HER A YEAR'S SALARY.

RATHER WHITE AND HER ALLIES DECIDED TO FABRICATE FALSE CHARGES AGAINST DR.
MCCLAIN.

THE BOARD MAJORITY RUSHED TO FIRE HER IN MARCH 2010 SO GREAT A RUSH THEY
FAILED TO GIVE HER 30-DAY NOTICE.

THE TRIO LOST THEIR JOBS IN THE NEXT ELECTION BY EITHER NOT RUNNING OR BY
BEING DEFEATED
...

HER BEING HIRED WAS THE RESULT OF A NATIONAL AND INTERNATIONAL SEARCH BY
PROBABLY THE MOST
WELL-KNOWN HEADHUNTER, SUPERINTENDENT HEADHUNTER FIRM
COSCA NOONAN.
SHE WAS SELECTED AS THE NUMBER ONE CANDIDATE FROM THAT
NATIONWIDE SEARCH. SHE IS WELL EDUCATED, SHE'LL TALK ABOUT THAT. SHE DOES HAVE
AN ED.D.   SHE HAS AN EXTENSIVE BACKGROUND IN EDUCATION, SHE WAS AN
ELEMENTARY
AND MUSIC TEACHER FOR SIX YEARS
. SHE WAS

Page 3

COORDINATOR OF STUDENT SUPPORT PROGRAM FOR OVER THREE YEARS. SHE WAS PRINCIPAL OF K5
SCHOOL WITH 3,000 CHILDREN WITH ONLY SUPERVISOR AND SUPERVISING STAFF OF 300, SHE THEN
BECAME SUPERINTENDENT OF OJAI SCHOOL DISTRICT, DID THAT FOR FOUR YEARS. THEN SHE BEGAN
HER CAREER AS A SUPERINTENDENT. FIRST IN THE MESA UNION SCHOOL DISTRICT IN CAMARILLO FOR
THREE YEARS THEN THE HERMOSA BEACH CITY SCHOOL DISTRICT FOR FOUR YEARS. SHE'S TAUGHT
LEADERSHIP AND FINANCE AT UNIVERSITY OF CALIFORNIA SAN DIEGO,
CHAPMAN, CAL STATE NORTHRIDGE, CAL STATE DOMINGUEZ AND CAL STATE CHANNEL ISLANDS AND AT
PEPPERDINE FOR 10 YEARS...SHE WAS THE WESTERN REGIONAL REPRESENTATIVE AND VICE PRESIDENT
OF THE IRVINE SUPERINTENDENT'S ASSOCIATION FOR FOUR YEARS...

...THREE BOARD PRESIDENTS THAT DR. MCCLAIN WORKED UNDER.
FIRST,
DR. ANNETTE EASTON FOR ABOUT THREE MONTHS, THEN I MENTIONED KATHERINE
WHITE
, THAT WAS A YEAR, AND THEN AFTER KATHERINE WHITE FOR ABOUT FOUR MONTHS,
COMISCHELL RODRIGUEZ WAS THE PRESIDENT.

WHAT THE EVIDENCE IS GOING TO SHOW IS THAT THINGS WENT PRETTY SMOOTHLY ...

Page 4

...THAT IS DR. EASTON THINGS WENT RELATIVELY SMOOTHLY WITH HER, AND THEY WENT VERY SMOOTHLY
WITH COMISCHELL RODRIGUEZ, BUT WITH PRESIDENT WHITE, THERE WAS CONSTANT CONFLICT
BECAUSE OF HER FOCUS ON MINUTIA, ON MICROMANAGING, AND MACRO-MISMANAGING.

..
.MS. WHITE AND DR. EASTON AND MR. MCDOWELL WERE A SLATE THAT WERE ELECTED IN 2006. AND WHILE
DR. MCCLAIN WAS A MEMBER OF THE BOARD THERE WERE -- I MEAN THE SUPERINTENDENT THERE WERE
A COUPLE OTHER BOARD MEMBERS,
JANET LAMBORGHINI AND PERKINS.

11 NOW THE -- HER TENURE AS SUPERINTENDENT HAS
12 TO BE SEEN IN THE HISTORICAL CONTEXT THAT TOM BISHOP WHO
13 HAS A
PREVIOUS SUPERINTENDENT, HAD BEEN THE SUPERINTENDENT
14 FOR 10 YEARS, WAS WIDELY RESPECTED IN THE DISTRICT, AND
15 THE COMMUNITY. AND THE BOARD HAD, HAD BOUGHT HIM OUT, THE
16 SLATE, AND THAT WAS GENERALLY PERCEIVED AS AN OUTRAGE.

17 DR. MCCLAIN CAME IN SIX MONTHS, EIGHT
18 MONTHS LATER. AFTER THAT BUY-OUT, AND FACED A HOST OF
19 PROBLEMS. ONE OF THOSE PROBLEMS WAS THAT THE STAFF
20 ... HAD A DISDAIN
21 FOR THE BOARD BECAUSE OF THE BISHOP BUY-OUT, THEY
22 DISTRUSTED DR. MCCLAIN BECAUSE THEY SAW HER AS THE SLATE
23 THAT HAD GOTTEN RID OF [BISHOPO] AS THEIR AGENT. AND SO SHE HAD
24 ENORMOUS JOB TO TRY TO BUILD TRUST WITHIN BOTH THE
25 COMMUNITY AND, WITHIN HER STAFF.
26 THE, SHE TOOK OVER FROM AN INTERIM
27 SUPERINTENDENT,
JANET BERNARD, WHO ON THE FIRST COUPLE OF
28 DAYS THAT SHE, THAT STARTED TOLD DR. MCCLAIN THAT SHE WAS

Page 5

1 GOING TO HAVE TROUBLE IF SHE DIDN'T GIVE HER A $15,000
2 RAISE AND DR. MCCLAIN COULDN'T IN GOOD CONSCIENCE
3 RECOMMEND THAT AT THE OUTSET.

4
THE DISTRICT WAS IN THE HOLE BY ON THE
5 BUDGET, BY ABOUT A MILLION DOLLARS. THE DISTRICT HAD SOLD
6 THE DISTRICT OFFICE, THEY HAD TO MOVE. EITHER TO A SCHOOL
7 SITE OR PURCHASE PROPERTY. THE FOUNDATION THAT PROVIDED
8 SUBSTANTIAL SUPPORT TO THE SCHOOL DISTRICT
BY RAISING
9 MONEY IN THE COMMUNITY, HAD BEEN -- HAD BEEN SERIOUSLY
10 INJURED BECAUSE THE SLATE OF
EASTON, MCDOWELL AND WHITE IN
11 RUNNING FOR OFFICE, HAD ATTACKED IT AND DONATIONS HAD
12 PLUMMETED.
THE PARENTS AT THE DEL MAR SCHOOL BELIEVED
13 THAT THE BOARD BROUGHT DR. MCCLAIN TO SHUT IT DOWN SO SHE
14 WERE DISTRUSTFUL. THE PRINCIPAL THERE HAD LEFT. SO SHE
15 HAD TO HIRE A NEW PRINCIPAL.

16 THE ADMINISTRATORS WERE FEARFUL OF TALKING.
17
THE PRINCIPALS BELIEVED THAT ONE OF THE THEIR, ONE OF THE
18 PRINCIPALS
WENDY WARDLOW, WHO WAS THE PRINCIPAL AT DEL MAR
19 HEIGHTS SCHOOL WAS A SPY FOR MS. WHITE. AND DR. MCCLAIN
20 WAS WARNED BY THE PRINCIPALS AND TOLD BY THE PRINCIPALS,
21 THAT SHE SHOULD DISTRUST MS. WARDLOW.

22 THE BOARD WAS DYSFUNCTIONAL. THERE WAS
23 WIDESPREAD EMPLOYEE MISTRUST IN THE BOARD AND THE BOARDS
24 INTENTIONS. AND THE BOARD HAD AN ADVERSARIAL RELATION
25 WITH THE CITY OF DEL MAR.

26 THOSE ARE JUST SOME OF THE PROBLEMS THAT
27 DR. MCCLAIN WALKED INTO.

28 NOW DEL MAR IS A HIGHLY AS I MENTIONED

Page 6

1 WEALTHY SCHOOL DISTRICT,
TOM BISHOP HAD BROUGHT IT FROM A
2 COUPLE OF SCHOOLS TO AS, WHICH WERE EAST -- WEST OF THE
3 FREEWAY, ALONG THE COAST, HAD BROUGHT IT TO AN EIGHT
4 SCHOOL DISTRICT AS THE CITY OF SAN DIEGO DEVELOPED IN THAT
5 AREA.
HE HAD BROUGHT THE DISTRICT FROM BEING THE FOURTH
6 BEST HIGHEST ACHIEVING DISTRICT IN SAN DIEGO COUNTY TO THE
7 NUMBER ONE STUDENT ACHIEVEMENT WHEN HE TOOK OVER...


14 YOU'RE STARTING FROM A VERY HIGH BASE STUDENT ACHIEVEMENT
15 THE MOST IMPORTANT MEASURE OF WHETHER A SUPERINTENDENT IN
16 THE SCHOOL DISTRICT IS FUNCTIONING WELL WENT UP. SHE
17 BALANCED THE BUDGET. SHE STARTED WITH A $1 MILLION
18 DEFICIT AND A 42 MILLION-DOLLAR [BUDGET]; BY MAY THEY HAD
19 BALANCED IT WITHIN $15,000 ON A $42 MILLION BUDGET.

20 STATE THEN CREATED SOME PROBLEMS IN THE
21 SUMMER BECAUSE UNDER THE FAIR SHARE, THEY CUT BACK ON
22 THAT. SO SHE HAD TO START OVER AND DEAL WITH THAT. BUT
23 SHE DEALT WITH THE DISTRICT, DIDN'T GO BANKRUPT.

24 THE, SHE IMPROVED EMPLOYEE MORALE. SHE
25 BROUGHT THE FOUNDATION THAT PROVIDED DISTRICT -- WHEN I
26 SAY "SHE," I REALLY WANT TO EMPHASIZE SHE DOESN'T BELIEVE
27 SHE DID ALL THESE THINGS ALONE.

Page 7

3 THE FOUNDATION WENT FROM HALF A MILLION
4 DOLLARS A YEAR BEFORE TO ABOUT A MILLION AND A HALF,
5 ALMOST TRIPLED. SHE WORKED TOWARDS GETTING THE DISTRICT
6 OFFICE RELOCATED. SHE ESTABLISHED THE PROFESSIONAL
7 LEARNING COMMUNICATE WITH THE PRINCIPALS. SHE UPGRADED
8 THE AGENDA AND MINUTE FORMAT TO MAKE THEM MORE ATTRACTIVE.

9 AND THIS IS ALL HER FIRST YEAR. SHE FACING BUDGET
10 CUTBACKS, SHE SUCCESSFULLY GAVE EMPLOYEES NOTICE OF
11 LAYOFFS. AND THE UNION CONTESTED IT AND THE DISTRICT WON
12 AND THE D.O.J. DECISION IN MAY 2009. THE DISTRICT HAD NO
13 FIRE WALL ON ITS ELECTRONIC ACCESS. HER ADMINISTRATION
14 CREATED, THERE'S A NUMBER OF ACCOMPLISHMENTS THAT
15 DR. MCCLAIN DID.

16 BUT BEGINNING -- AND IN FACT, MS. WHITE,
17 FEBRUARY, MARCH, APRIL, WAS SAYING THINGS LIKE WE'RE LUCKY
18 TO HAVE DR. MCCLAIN, YOU KNOW, WE APPRECIATE ALL YOUR
19 EFFORTS, SHE WAS VERY LAUDATORY TOWARDS HER.

20 BUT BY THE SUMMER OF 2009, MS. WHITE WAS
21 BEGINNING TO MOVE TO GET RID OF DR. MCCLAIN. AND
22 DR. MCCLAIN -- AND
IN FACT, THERE'S A DOCUMENT THAT WE'LL
23 SEE WHERE MS. WHITE FORWARDED TO
MR. SHINOFF OFF A
24 DOCUMENT SAYING FIX RESIGN, OR TERMINATE WITH CAUSE.
AND
25 THAT AROUND END OF JULY, BEGAN THE PROCESS THAT LED TO A
26 COUPLE OF THINGS IN SEPTEMBER THAT I'LL TALK ABOUT IN A
27 SECOND.
28 NOW INTERESTINGLY, MISSING FROM THAT GROUP

Page 8

1 OF THOSE THREE WAYS OF ADDRESSING MS. WHITE'S ISSUES WITH
2 DR. MCCLAIN, WAS TERMINATE HER WITHOUT CAUSE. IT WAS
3 RATHER GET HER TO RESIGN, AND FIX THE PROBLEM, OR
4 TERMINATE HER WITH CAUSE, AND WHAT IT MOVED DIRECTLY
5 TOWARDS WAS TERMINATING HER WITH CAUSE.

6 IN, ON SEPTEMBER 4, DR. MCCLAIN MET WITH A
7 FRIEND OF HERS, PROFESSIONAL COLLEAGUE
GLORIA JOHNSON, MET
8 WITH
MR. SHINOFF, WHO HAD BEEN RETAINED IN JULY, TO
9 REPRESENT THE DISTRICT AGAINST DR. MCCLAI
N, WITH MS. WHITE
10 AND WITH BOARD MEMBER COMISCHELL RODRIGUEZ. MS. WHITE
11 ASKED DR. MCCLAIN TO RESIGN. IF SHE WOULD RESIGN.

12 AND DR. MCCLAIN SAID NO, I HAVE NO
13 INTENTION OF RESIGNING.

14 OTHER THINGS HAPPENED AT THAT MEETING WE'LL
15 TALK ABOUT, BUT THAT LED TO THE WRITING AFTER THE, AFTER
16 THE SEPTEMBER 4 MEETING. IN THE SHORT PERIOD OF TIME,
17 FIRST DRAFT OF AN EVALUATION CAME OUT SEPTEMBER 8.

18 AND BY SEPTEMBER 16 THE BOARD HAD GENERATED
19 THE EVALUATION WHICH IS EXHIBIT 7 WHICH WAS SPENT A LOT OF
20 TIME WITH, WE'VE ALREADY TALKED ABOUT IN SOME WAYS THE
21 ALLEGATIONS IN IT, THERE'S A HOST OF ALLEGATIONS IN IT,
22 THIS IS VERY FACT SPECIFIC, THIS IS A NINE-PAGE
23 EVALUATION, THERE'S A LOT OF FALSE ALLEGATIONS IN IT.

24 THE -- IT WAS DRAFTED ORIGINALLY AS A DOCUMENT THAT WAS
25 GOING TO GIVE HER AN UNSATISFACTORY PERFORMANCE.
26 BUT THE TIME IT WAS SENT TO MR. SHINOFF'S
27 OFFICE AND CAME BACK, IT WAS DESCRIBED AS A DOCUMENT
28 SHOWING THAT SHE HAD BREACHED THE CONTRACT. THIS IS

Page 9

1 CLEARLY A DOCUMENT THAT WAS SET UP TO TERMINATE
2 DR. MCCLAIN'S TERMINATION.
3 PRACTICALLY NONE OF THE ACCOMPLISHMENTS
4 THAT DR. MCCLAIN HAD MADE, OVER THAT FIRST YEAR, WERE
5 CONTAINED IN THE EVALUATION.
6 NOW THE PMK SAYS THE EVALUATION SHOULD
7 CONTAIN THE GOOD AND THE BAD...

18 THE COURT: LET ME ASK YOU THIS, SO WHAT?

19 MR. GRONEMEIER: IT'S --

20 THE COURT: WHY DOES THAT MATTER? I'M JUST
21 SAYING THAT.

22 MR. GRONEMEIER: BECAUSE IT GOES TO THE
23 FUNDAMENTAL INTEGRITY OF THE EVALUATION, IF IT --

24 THE COURT: BUT THAT'S NOT AN ISSUE. IS IT?

25 MR. GRONEMEIER: SURE, IT IS. BECAUSE THE
26 OVERALL QUESTION IS WAS SHE -- WAS SHE PERFORMING SO BADLY
27 THAT IT WAS A BREACH OF A CONTRACT.

28 THE COURT: HERE'S MY POINT. THERE'S NO

Page 10

1 REQUIREMENT THAT THE EVALUATION BE FAIR. THERE'S NO LEGAL
2 REQUIREMENT THAT IT BE FAIR.
AND I SUPPOSE IF YOU'RE OF A
3 MIND THAT SOMEBODY THAT'S WORKING FOR YOU ISN'T DOING A
4 GOOD JOB, YOU DON'T HAVE TO BE NICE TO THEM, YOU CAN GIVE
5 THEM A CRUMMY EVALUATION. IT MIGHT BE RIGHT, IT MIGHT BE
6 WRONG FACTUALLY.

7 I'M JUST SAYING THAT THERE'S NO REQUIREMENT
8 THAT THE EVALUATION BE FAIR. I'M JUST WONDERING IN THIS
9 CONTEXT WHETHER IT REALLY MATTERS.

10 MR. GRONEMEIER: I THINK, NUMBER ONE, I THINK
11 THERE IS -- A CONTRACT DOES REQUIRE THAT IT BE FOUNDATION
12 AT LEAST IT CERTAINLY IMPLICITLY, EXPRESSLY WHAT IT
13 REQUIRES, IS THAT IT EVALUATE HER IN TERMS OF HER GOALS
14 AND OBJECTIVES, AND YOU CAN'T EVALUATE THE GOALS AND
15 OBJECTIVES IF YOU ONLY DEAL WITH THE THINGS THAT SHE DID
16 WRONG.

17 THE COURT:

ALL I'M SAYING IS IN THIS PARTICULAR
18 HEARING, WHAT IS RELEVANT IS WHETHER THERE WAS CAUSE TO
19 TERMINATE.
AND THE FACT THAT THE EVALUATION IS, ISN'T
20 NICE, OR THE EVALUATION IS ONE-SIDED, DOESN'T CHANGE THAT.
21 THAT'S ALL I'M SAYING.

22 MR. GRONEMEIER:

WELL, NO, IT DOES BECAUSE IF
23 YOU -- NUMBER ONE,
IF YOU DON'T FOLLOW THE CONTRACT AS
24
MR. SLEETH IS PRONE TO POINT OUT, YOU RELEASE THE OTHER
25 PARTY OF THEIR OBLIGATION TO PERFORM UNDER THE CONTRACT.

26 IN A NUMBER OF WAYS THEY DIDN'T DO WHAT THEY WERE SUPPOSED
27 TO DO. THEY DIDN'T GET TIMELY EVALUATION, THEY DIDN'T
28 EVALUATE HER ON TERMS OF HER GOALS AND OBJECTIVES, THEY

Page 11

1 DIDN'T EVEN DECIDE TO APPROVE OR DISAPPROVED THEIR GOALS
2 AND OBJECTIVES. THEY DRUG THEIR FEET.
3 BUT IF YOU THEN RELY UPON THAT EVALUATION
4 AS YOUR GOOD CAUSE, YOU CAN'T -- YOU CAN'T SAY OKAY,
5 HERE'S THIS LAUNDRY LIST OF VARIOUS THINGS, AND THIS
6 PROVES THAT YOU, WE HAD GOOD CAUSE, IF YOU DON'T ALSO
7 CONSIDER THE ACCOMPLISHMENTS THAT SHE MADE.

8 THE COURT:

MY JOB ISN'T TO REDO THE EVALUATION
9 THOUGH. THAT'S I SUPPOSE WHAT I'M SAYING.

10 MR. GRONEMEIER: YOUR JOB IS TO DECIDE WHETHER
11 THE EVALUATION HONESTLY AND FAIRLY SUPPORTS GOOD CAUSE.
12 AND IF YOU DON'T LOOK AT THE --

13 THE COURT:

NO, LET ME ASK YOU THIS: IS THE
14 COURT'S JOB AT THIS POINT TO DETERMINE WHETHER THE
15 EVALUATION SUPPORTS GOOD CAUSE, OR WHETHER THE DISTRICT
16 CAN PRESENT A PREPONDERANCE OF THE EVIDENCE AT THIS TRIAL
17 OF GOOD CAUSE...
19  WITHIN THE CONFINES OF DUE
20 PROCESS. IN OTHER WORDS,
THEY CAN'T COME UP WITH
21 SOMETHING NEW NOW. SO THEY'RE STUCK WITH WHAT ARE, IS PUT
22 IN THE EVALUATION

... I'M GOING TO DETERMINE WHETHER OR NOT THE
28 DISTRICT CAN MARSHAL CREDIBLE EVIDENCE THAT PREPONDERATES

12

1 THAT THERE WAS GOOD CAUSE TO TERMINATE HER.

2 MR. GRONEMEIER:

WE ACTUALLY HAVE TWO DIFFERENT
3 ISSUES THAT ARE RELATED HERE.

NUMBER ONE, DR. MCCLAIN HAS
4 TO SHOW SUBSTANTIAL PERFORMANCE OF HER DUTIES UNDER THE
5 CONTRACT. HER GETTING MAKING HER ACCOMPLISHMENTS AND THE
6 THINGS SHE DID, CERTAINLY GO TO SHOW THAT.

7 THE COURT:

BUT ISN'T THAT KIND OF PRESUMED?
8 DOESN'T THE DISTRICT -- DOESN'T THE DISTRICT -- THE
9 DISTRICT HAS THE BURDEN, DOESN'T IT?

10 MR. GRONEMEIER:

NOT -- NO, NO. AS WE
11 DELINEATED IT, THE RESPONSIBILITY, DR. MCCLAIN HAS A, THE
12 NORMAL CONTRACT DUTIES THAT IS TO SAY THAT, I'M TRYING TO
13 REMEMBER THE EXACT LANGUAGE THAT I ALWAYS PUT IN
14 PLEADINGS, PLAINTIFF HAS PERFORMED, SUBSTANTIAL
15 ESSENTIALLY PERFORMED ALL OF THE CONDITIONS, OBLIGATIONS,
16 COVENANTS THAT WERE UPON HER. SO THERE'S SOME BURDEN
17 THERE ON HER PART TO SHOW THAT, YOU KNOW, SHE, SHE SHOWED
18 UP TO WORK, SHE WASN'T MENTALLY INCOMPETENT OR PHYSICALLY
19 UNABLE TO DO THE WORK, THAT SHE PERFORMED WORK, THAT'S --
20 I'M NOT SAYING IT'S A HIGH BURDEN, BUT SHE HAS THAT
21 BURDEN.

22 THE COURT:

MR. SLEETH, DO YOU AGREE? I'M
23 ASSUMING THAT WE ARE STARTING OFF WITH DR. MCCLAIN ALMOST
24 PRESENTING A PRIMA FACIE CASE THAT SHE PERFORMED CERTAINLY
25 THE MINIMAL DUTIES OF HER JOB. SHE DOESN'T HAVE THE
26 BURDEN, YOU HAVE THE BURDEN.

27 MR. SLEETH: SHE HAS THE BURDEN OF MAKING THAT
28 PRIMA FACIE SHOWING.

Page 13

1 THE COURT:

WELL, OKAY, I'M NOT SURE I AGREE
2 WITH THAT. YOU'VE GOT THE BURDEN OF ESTABLISHING CAUSE
3 FOR HER TERMINATION.

4 MR. SLEETH:

YES.
5 BUT I DON'T THINK WE EVEN NEED TO GET THERE
6 BECAUSE I THINK OUR EMPLOYEES WILL COME TESTIFY THAT SHE
7 WAS RARELY AT WORK, DIDN'T COME TO WORK, DIDN'T PERFORM
8 ESSENTIALLY DUTIES.

9 THE COURT:

THAT'S WHY I'M WONDERING IF THE
10 BURDENS HERE ARE KIND OF SHIFTED. AND I'M -- THIS IS A
11 ESSENTIALLY, A WRONGFUL TERMINATION ACTION WITH
12 DR. MCCLAIN SAYING SHE WAS WRONGFULLY TERMINATED IN BREACH
13 OF HER CONTRACT. AND I'M JUST WONDERING WHAT BURDEN YOU
14 ACTUALLY HAVE TO ESTABLISH THAT, IT SEEMS THAT YOUR CASE
15 IS GOING TO BE MORE OF A REBUTTAL CASE, ISN'T IT?

Page 15

...THE COURT:

BUT HER WHOLE CASE IS THAT THEY'RE
24 WRONG. THEIR ASSESSMENT OF HER PERFORMANCE IS FLAT OUT
25 FACTUALLY WRONG. THERE IS NO CAUSE. GOOD OR OTHERWISE.

26 MR. GRONEMEIER:

OUR POSITION, YES, THERE IS NO
27 CAUSE. THAT, SHE'S NOT GOING TO CLAIM SHE'S PERFECT,
28 THERE WAS SOME ISSUES WHERE SHE COULD HAVE DONE THINGS

Page 16

1 BETTER. ANYBODY IN THAT SITUATION WOULD HAVE THAT THING.
2 BUT BASICALLY, HER POSITION IS THAT FIRST
3 OF ALL, A LARGE NUMBER OF THINGS THAT ARE ALLEGED ARE
4 FALSE, THEY'RE NOT TRUE, THEY'RE FACTUALLY INACCURATE...

28 THE COURT: UNLESS YOU'RE GOING TO ESSENTIALLY

Page 17

1 TRY TO IMPEACH WHAT YOU ANTICIPATE THEIR WITNESSES ARE
2 GOING TO SAY.

3 MR. GRONEMEIER:

I'M GOING TO -- MY INTENTION IS
4 TO IMPEACH THE GROUNDS THAT THEIR INTERROGATORY RESPONSES
5 SAY ARE THE GROUNDS FOR TERMINATING HER, YEAH.

6 THE COURT:

OKAY.
7 SO YOU'RE GOING TO FIGHT THEIR WITNESSES
8 BEFORE THEY EVEN TESTIFY.

9 MR. GRONEMEIER:

YEAH.

10 THE COURT:

OKAY.

Page 18

THE COURT:

LET ME ASK YOU ONE QUESTION BEFORE
19 YOU DO THAT AND I'M GOING TO ASK THE DISTRICT THE SAME
20 QUESTION,
WHY DIDN'T THEY GIVE HER 30 DAYS' NOTICE?
21 THAT'S SOMETHING I NEVER UNDERSTOOD FROM THE FIRST PHASE
22 OF THIS TRIAL.

23 MR. GRONEMEIER:

MY ANSWER BEFORE AND MY ANSWER
24 NOW IS THEY MUST HAVE GOTTEN BAD ADVICE.

25 THE COURT: THAT'S YOUR POSITION?

26 MR. GRONEMEIER: YEAH.

27 THE COURT: OKAY.

Page 19

...2 MR. GRONEMEIER: THAT'S THE BEST GUESS I CAN
3 MAKE.
I'VE ASKED THAT QUESTION, AND THEY'VE REFUSED LET
4 ANYBODY ANSWER IT.
SO...

5 THE COURT: OKAY.

6 MR. GRONEMEIER: I CAN'T SAY I KNOW. I'M JUST
7 TRYING TO READ BETWEEN THE LINES.

8 MR. SLEETH:

I THINK THE OTHER REASON IS WE
9 INTERPRETED THAT PARTICULAR PROVISION DIFFERENTLY AND YOU
10 HEARD OUR ARGUMENT.
...
YOU HEARD OUR ARGUMENT THAT THE 30
13 DAY NOTICE DIDN'T APPLY TO MATERIAL BREACHES OF CONTRACT.
14 WE MADE THAT ARGUMENT WHEN WE WERE ARGUING ABOUT THE
15 MEANING OF IT, YOU, THE COURT MADE THE DETERMINATION THAT
16 IT DID, IT WAS REQUIRED.

17 THE COURT: OKAY.

18 MR. SLEETH: I DON'T THINK THE BOARD INTERPRETED
19 IT THE SAME WAY.

20 THE COURT: AS ME.

21 MR. SLEETH: YES. BUT THE COURT'S NOW RULED SO
22 WE'RE REQUIRED TO GIVE 30 DAYS' NOTICE.

23 THE COURT: WITHOUT GETTING INVOLVED IN ANOTHER
24 ISSUE AND KIND OF BEATING IT TO DEATH, WOULDN'T IT HAVE
25 BEEN EASIER TO JUST GIVE THE 30-DAY NOTICE?.
..

28 MR. SLEETH: YOU BETCHA.

Page 20

1 THE COURT:

AND I GUESS MY QUESTION IS WHAT WAS
2 THE RUSH TO JUDGMENT HERE? WHY WAS IT?
3 MR. SHINOFF?

4 MR. SHINOFF:

YES, YOUR HONOR.

5 THE COURT: I'M JUST CURIOUS.

6 MR. SHINOFF: WELL, WHAT YOU WILL LEARN DURING
7 THE COURSE OF THIS TRIAL --

8 THE COURT: WITHOUT GOING INTO --

9 MR. SHINOFF: RIGHT, NO, I UNDERSTAND, BUT WHAT
10 YOU WILL LEARN DURING THE COURSE OF THIS TRIAL IS THAT
11 FROM SEPTEMBER UNTIL MARCH, THE DISTRICT WAS GOING IN ONE
12 DIRECTION, DR. MCCLAIN WAS PLANNING HER EXIT STRATEGY.
13 THERE WAS NO SUPERINTENDING THAT WAS OCCURRING,
14 MR. GRONEMEIER WAS INVOLVED FROM THE VERY INCEPTION.
WE
15 TOOK THE DEPOSITION OF THEIR EXPERT IN AUSTIN, TEXAS --

16 THE COURT: NO, NO.

17 MR. SHINOFF: -- WHO WAS IN CONTACT WITH HER
18 BEFORE SHE STARTED THE CONTRACT AND THERE IS ALL KINDS OF
19 CORRESPONDENCE FROM SEPTEMBER ALL THE WAY THROUGH MARCH
20 PLANNING HER EXIT STRATEGY. SO THE COURT WILL HEAR THAT
21 EVIDENCE, AND IF THERE REALLY WAS AN ISSUE OF NOTICE, I
22 THINK IT WILL BECOME MOST CONFUSING BECAUSE IF THERE WAS
23 ANYONE WHO HAD A STRATEGY TO THE PART, IT WAS DR. MCCLAIN.
24 IT'S CLEAR FROM HER OWN WRITING.

25 THE COURT: BUT I'M JUST SUGGESTING THAT THE WAY
26 THE CONTRACT IS WRITTEN, EVEN IF THE ASSUMPTION IS THAT
27 DR. MCCLAIN HAD AN EXIT STRATEGY, WHY NOT GIVE HER 30
28 DAYS' NOTICE? AND THEN THAT FORECLOSES --

Page 21

1 MR. SHINOFF: I --

2 THE COURT: -- THE ISSUE.

3 MR. SHINOFF: I UNDERSTAND, YOUR HONOR.

4 THE COURT: IT'S --

5 MR. SHINOFF: THE DISTRICT.

6 THE COURT: I DON'T WANT TO GET INVOLVED.

7 MR. SHINOFF: THE DISTRICT SIMPLY HAD A
8 DIFFERENT INTERPRETATION, APPARENTLY MR. GRONEMEIER WANTS
9 TO IMPUTE SOME MALPRACTICE TO MY FIRM. THAT'S FINE. I
10 DON'T PRACTICE LAW LIKE THAT.

11 THE COURT: I'M NOT.

12 MR. SHINOFF: IF HE WISHES TO DO THAT, THAT'S
13 THE GROUND HE CAN WALK ON. BUT WE HAD A DIFFERENCE OF
14 OPINION FROM THE COURT, OBVIOUSLY IT WAS AN ISSUE THAT
15 THIS COURT HAS DECIDED AND SO THAT, THAT IS WHERE WE ARE,
16 AND WE HAVE GREAT RESPECT FOR THIS COURT.

17 THE COURT: I'M NOT SURE THAT MR. GRONEMEIER IS
18 IMPUTING YOUR LAW FIRM. I'M JUST SAYING THAT THERE WAS
19 APPARENTLY A DETERMINATION WAS MADE NOT TO GIVE THE 30
20 DAYS' NOTICE. AND I DIDN'T UNDERSTAND WHY.

21 MR. SHINOFF: UH-HUH.

22 THE COURT: THE ONLY REASON MIGHT BE THAT
23 DR. MCCLAIN WAS A MENACE TO THE STUDENTS IN THE DISTRICT.

24 MR. SHINOFF: SHE WAS. SHE WAS.

25 THE COURT: AND THEY HAD TO GET HER OUT SOONER
26 RATHER THAN LATER, THE FACT THAT SHE HAD AN EXIT STRATEGY
27 WOULD SEEM WOULD SAY TO SOME PEOPLE, LOOK,
LET'S MAKE SURE
28 WE DO THIS RIGHT BECAUSE SHE'S NOT GOING TO GO AWAY

Page 22

1 EASILY.

2 MR. SHINOFF:

SHE WAS VERY DIVISIVE TO THE
3 COMMUNITY AND YOU WILL HEAR LOTS OF TESTIMONY ABOUT THAT.
4 WE HAD BOARD MEETINGS WHERE --

5 THE COURT: OKAY, OKAY.

6 MR. SHINOFF:

-- WHERE DR. MCCLAIN WOULD SIT
7 LIKE THIS WITH HER BACK TOWARDS THE BOARD PRESIDENT
8 BECAUSE OF HER DISGUST FOR THE BOARD. THAT'S THE LEVEL OF
9 ETHICS WE'RE TALKING ABOUT HERE.
10 AND SO YEAH, THINGS WERE REALLY BAD. AND
11 SO MR. GRONEMEIER CAN PROVIDE GREAT ADULATION IN TERMS OF
12 HER ACCOMPLISHMENTS OUTSIDE OF THE DISTRICT, NOBODY'S
13 DISAGREEING WITH HER ACCOMPLISHMENTS OUTSIDE OF THE
14 DISTRICT, THERE WAS A LOT OF PROBLEMS OCCURRING WITHIN THE
15 DISTRICT.

16 THE COURT:

WELL, OKAY. SO THE,
I SUPPOSE THE
17 ANSWER IS THAT RELATIONSHIP BETWEEN THE BOARD AND THE
18 COMMUNITY AND THE SUPERINTENDENT HAD DETERIORATED TO
THE POINT WHERE THE DISTRICT WAS WILLING TO TAKE THE RISK
THAT THE 30 DAYS MIGHT REALLY MEAN 30 DAYS.

21 MR. SLEETH:

I DON'T THINK THAT THAT WOULD BE
22 FAIR, YOUR HONOR.
I DON'T THINK THEY UNDERSTOOD THAT THAT
23 30 DAY -- I WAS THERE AT THE TIME, I'M JUST HAVING READ
24 THOSE FIVE PARAGRAPHS OF DIFFERENT KINDS OF NOTICE
25 REQUIREMENTS
AND THE EVALUATION REQUIREMENT AND ALL THOSE
26 OTHER THINGS, I THINK THE BOARD THOUGHT THAT THAT THEY HAD
27 TO GIVE HER AN EVALUATION AND NOTICE THAT THERE WERE
28 PROBLEMS AND THEN AT ANY TIME AFTER THAT THEY COULD FIRE

Page 23

1 HER. I THINK THAT'S WHAT THEY THOUGHT THAT --

2 THE COURT: OKAY.

3 MR. SLEETH:

-- THEY GAVE HER AN EVALUATION THAT
4 SAID YOU'RE MATERIALLY BREACHING YOUR CONTRACT, THEY
5 WAITED SEVERAL MONTHS, THEN SHE HAD ANOTHER EVENT THAT WAS
6 HORRENDOUS AND RESULTED IN A LETTER OF REPRIMAND, AND AT
7 THAT POINT, THEY, I THINK THEY WERE AT THE POINT WHERE
8 THEY JUST NEEDED TO MAKE IT GO AWAY.

9 THE COURT: ALL RIGHT. SO THE ANSWER I GUESS IS
10 THAT THE COURT GOT IT WRONG, AND THE BOARD DIDN'T
11 ANTICIPATE THAT A COURT WOULD HAVE GOTTEN IT WRONG.

12 MR. SLEETH: I'VE GOTTEN THROUGH 30 YEARS OF
13 PRACTICE WITHOUT HAVING SAYING THE COURT GOT IT WRONG.

14 THE COURT: COME ON.

15 MR. SLEETH: I THINK THERE WAS A DIFFERENCE OF
16 UNDERSTANDING OF THE MEANING OF A COMPLEX TERMINATION
17 PROVISION.

18 THE COURT: OKAY.

19 MR. SLEETH: IN THE CONTRACT THEY DIDN'T THINK
20 THEY HAD TO GIVE 30 DAYS' NOTICE.

21 THE COURT: I DON'T HAVE THE BENEFIT NOR WOULD
22 IT BE APPROPRIATE FOR -- I DON'T KNOW THE INS AND OUTS OF
23 HOW THE BOARD MADE WHATEVER DETERMINATION IT MADE
24 PROCEDURALLY. AND WHETHER THEY GOT LEGAL ADVICE OR OTHER
25 ADVICE OR NO ADVICE, I DON'T KNOW AND I'M NOT SURE. BUT I
26 THINK THE ANSWER IS ABOUT AS GOOD AS I'M GOING TO GET.

Page 25

THEY
15 WEREN'T SATISFIED WITH HER PROGRESS FOR IN RELOCATING TO
16 THE SAN DIEGO AREA. THAT'S LISTED AS A BREACH OF
17 CONTRACT.

IN FACT, THE CONTRACT PROVIDED THAT SHE HAD TO
18 RELOCATE WITHIN TWO YEARS, AFTER ONE YEAR, THEY'RE FINDING
19 IT A BREACH OF CONTRACT, THAT SHE HADN'T RELOCATED. SHE
20 HAD ACTUALLY LIVED IN FOR A WHILE THIS, A RENTED HOUSE,
21 AND THEN SHE HAD PROPERTY IN ESCONDIDO AND SHE WAS LIVING
22 THERE DURING THE WEEK AND ON THE WEEKENDS SHE WOULD RETURN
23 WITH HER HUSBAND TO A CONDO IN, IN LONG BEACH.


24 THEY FOUND BREACH OF CONTRACT THAT SHE HAD
25 ATTENDED TOO MANY CONFERENCES
, THE CONTRACT GAVE HER THE
26 DISCRETION OF WHEN TO ATTEND, THERE WAS NO PRIOR NOTICE
27 THAT THERE WAS ANY PROBLEM WITH THEM. IT CERTAINLY WAS
28 NOT A BREACH OF A CONTRACT OR THEY CERTAINLY WERE FREE

Page 26

TELL HER THAT THEY THOUGHT THAT SHE SHOULD SPEND LESS
2 TIME. THEY DID THAT AND SHE STOPPED ATTENDING CONFERENCES
3 EXCEPT FOR ONE SHE WAS THE VICE PRESIDENT,
SHE DID IT ON
4 HER OWN TIME, SHE TOOK VACATION TIME FOR IT.
5 THEY FAULT HER FOR NOT GETTING HER GOALS
6 AND OBJECTIVES APPROVED AND FOR THE DELAY IN THEIR DOING
7 THE EVALUATION, THEY WERE SUPPOSED TO EVALUATE HER IN MAY.
8 BUT SHE HAD TO BE EVALUATED IN HER GOALS AND OBJECTIVES,
9 SHE SUBMITTED GOALS AND OBJECTIVES WITHIN A MONTH OF
10 BECOMING SUPERINTENDENT, IT WAS ON THE BOARD REPEATEDLY,
11 AND THE BOARD SIMPLY NEVER ACTED UPON IT AND NEVER
12 ACTUALLY APPROVED OR IS APPROVED HER GOALS AND OBJECTIVES.
13 BUT STARTED THE EVALUATION PROCESS LATE. THEY'RE SIMPLY
14 TRYING TO SHIFT THEIR FAULT ON TO HER.

15
THEY CRITICIZED HER FOR NOT FIRING OR
16 TRANSFERRING SHERRY FORTE, THE ASSISTANT TO DR. MCCLAIN.

17 THE ASSISTANT TO THE SUPERINTENDENT. DR. MCCLAIN DID FIND
18 SOME PROBLEMS WITH SHERRY FORTE'S PERFORMANCE EARLY ON,
19 SHE COUNSELED HER. SHE FELT THERE WAS IMPROVEMENT.
20 SHERRY FORTE IS A PERMANENT EMPLOYEE, I THINK HAD WORKED
21 FOR THE DISTRICT AT THAT TIME FOR MORE THAN A DECADE OR
22 ALMOST A DECADE, I BELIEVE, AND HAD DUE PROCESS.

23 THE COURT:

WHAT DO YOU MEAN "PERMANENT
24 EMPLOYEE"?

25 MR. GRONEMEIER:

PERMANENT CLASSIFIED EMPLOYEE
26 SO SHE HAD DUE PROCESS RIGHTS. YOU CAN'T SIMPLY TERMINATE
27 HER AND DR. MCCLAIN DID NOT FEEL THERE WAS GOOD CAUSE TO,
28 SHE WAS SATISFIED WITH THE IMPROVEMENT...

Page 27

THE ASSERTION IN THE, THERE'S A NUMBER OF
24 ASSERTIONS THAT THE AGENDAS WERE, THERE WERE MISTAKES IN
25 THEM. THERE WAS MISTAKES IN THE MINUTES. THERE WERE,
26 THERE WAS SOME MINUTIA, PROBLEMS THEY ASSERTED THAT THERE
27 WERE BROWN ACT VIOLATIONS.
THERE NEVER WERE ANY BROWN ACT
28 VIOLATIONS, THERE WERE TWO INSTANCES IN WHICH THERE WAS A

Page 28

POSTING OF A MEETING, ONE WAS ONE MINUTE LATE AND ONE WAS
2 15 MINUTES LATE, BUT THAT WAS ACCOMMODATED BY SIMPLY
3 HAVING THE MEETING START LATER.

9 THEY DIDN'T AGREE WITH DR. MCCLAIN'S ASSESSMENT OF A
10 PARTICULAR PRINCIPAL,
SUSAN FITZPATRICK. DR. MCCLAIN FELT
11 SHE WAS DOING A GOOD JOB.

12 THEY SAID THAT THEY CRITICIZED DR. MCCLAIN
13 FOR CONSULTANTS.
14 DR. MCCLAIN DID HIRE AND DID RECOMMEND TO
15 THE BOARD A COUPLE OF CONSULTANTS, ONE OF THEM WITH A 7/11
16 COMMITTEE. SHE RECOMMENDED
GAYLE WAYNE WHO WAS PROBABLY A
17 PREMIERE PERSON IN THE STATE TO HANDLE THAT KIND OF A
18 MATTER.
19 SHE DISCLOSED TO THE PRESIDENT THAT GAYLE
20 WAYNE WAS SOMEONE SHE HAD WORKED WITH BEFORE, THAT THEY
21 HAD A SOCIAL RELATIONSHIP. SHE GETS CRITICIZED FOR NOT
22 DISCLOSING TO THE BOARD -- SHOWS SHE DISCLOSED IT TO
23 KATHERINE WHITE, AND KATHERINE WHITE CHOSE NOT TO TELL THE
24 BOARD. IT'S THAT KIND OF LEVEL OF CRITICISM DR. MCCLAIN
25 IS GOING ON HERE.


26 SHE WAS CRITICIZED FOR NOT KEEPING THE
27 BOARD INFORMED ON MATTERS...

Page 29

...SHE DID EVERYTHING
13 SHE COULD TO KEEP THE BOARD INFORMED...

15 THEY CRITICIZE HER IN THE EVALUATION FOR
16 NOT HIRING AN H.R. DIRECTOR WHEN RODGER SMITH WHO WILL
17 TESTIFY TODAY, RESIGNED. WELL, ON THE ONE HAND THEY'RE
18 TELLING HER TO CUT COSTS. DR. MCCLAIN WAS CUTTING COSTS
19 BECAUSE SHE HAD BEEN AN H.R. DIRECTOR AND WAS GOING TO DO
20 IT. FOR A WHILE. THE BOARD DISAGREED WHEN ULTIMATELY
21 THEY DID HIRE A NEW H.R. DIRECTOR. BUT THAT'S NOT THE
22 KIND OF THING THAT WAS A BREACH OF CONTRACT.

23 THEY CRITICIZE HER THEY DIDN'T KNOW ABOUT
24 THE DEL MAR INSTITUTE OF TECHNOLOGY
, THIS IS ONE MORE
25 EXAMPLE THAT IN FACT SHE HAD COMMUNICATED TWICE ABOUT IT,
26 AND THE BOARD UPDATES. BOARD MEMBERS SIMPLY WEREN'T
27 PAYING ATTENTION AND NOW ARE BLAMING HER FOR THINGS THAT
28 NEVER HAPPENED.

THE THERE WAS A PUBLIC RECORDS ACT REQUEST

Page 32

1 FOR THE SHINOFF FIRM'S BILLING RECORDS. DR. MCCLAIN IS
2 CHARGED WITH HAVING WRONGLY RELEASED THEM BECAUSE
3 ALLEGEDLY, SHE DIDN'T ELIMINATE ALL OF THE DETAILS THAT
4 SHOULD HAVE BEEN ELIMINATED. DR. MCCLAIN DIDN'T MAKE
5 THOSE DECISIONS. SHE REFERRED THEM TO FORMER COUNSEL FOR
6 THE SAN DIEGO OFFICE OF EDUCATION, EXPERIENCED LAWYER
7 DOING PUBLIC RECORDS ACT REQUEST, AND SHE HAD NOTHING TO
8 DO OTHER THAN FORWARDING THAT TO A LAWYER TO HAVE A
LAWYER
9 REVIEW...

Page 34

MR. GRONEMEIER: SHE GOES TO THE MEETING WHERE
25 THE CONTRACT IS TO BE SIGNED, AND THAT CHANGE HAS NOT
BEEN
26 MADE. RICARDO -- SHE DOESN'T DEAL DIRECTLY WITH THE
27 BOARD, SHE DEALS WITH RICARDO SOTO, THE BOARD'S ATTORNEY,
28 AND IN THAT MEETING, WHILE THE BOARD IS IN CLOSED SESSION,

Page 35
1 OR OTHERWISE MEETING AND DR. MCCLAIN IS PRESENTED WITH A
2 CONTRACT TO SIGN, BOTH SIDES ARE GOING TO SIGN THAT DAY,
3 HER EXPECTATIONS ARE NOT MET. BECAUSE SHE EXPECTS THAT
4 MONEY, THAT PROVISION 8E TO PROVIDE FOR SALARY NOT A TSA.

5 THE COURT: MY RECOLLECTION IS THAT THE CONTRACT
6 THAT SHE SIGNED HAD A SALARY SET FORTH FOR EACH YEAR OF
7 THE CONTRACT.

8 MR. GRONEMEIER: THAT'S CORRECT.

9 THE COURT: AND IN ADDITION TO THAT, IT HAD A
10 RETIREMENT CONTRIBUTION OF 16,000.

11 MR. GRONEMEIER: THAT'S CORRECT, THAT'S WHAT SHE
12 SIGNED.

13 THE COURT: YEAH. AND THEN SHE WANTED TO ADD
14 THE RETIREMENT CONTRIBUTION TO HER SALARY. IN SOME
15 FASHION.

16 MR. GRONEMEIER: THAT IS CORRECT, BUT IT'S
17 MISSING WHAT THE ORAL AGREEMENT WAS, ALTHOUGH IT'S NOT
18 ENFORCEABLE ORAL AGREEMENT, IT WAS THE AGREEMENT GOING IN.

19 THE COURT: WHEN DID SHE DO THIS?

20 MR. GRONEMEIER: BEFORE THE CONTRACT WAS SIGNED,
21 SHE WAS NEGOTIATING WITH SOTO, THE BOARD'S
22 ATTORNEY.

23 THE COURT: YOU'RE TALKING ABOUT WHICH CONTRACT?

24 MR. GRONEMEIER: THE ORIGINAL CONTRACT.

Page 42

MR. GRONEMEIER: BUT IF THEY THAT WAS THE
21 HONORABLE CONTRACTUAL WAY TO DEAL WITH THAT. IF THEY HAD
22 DONE THAT, THEY WOULD NOT HAVE RUINED HER REPUTATION AND
23 SHE WOULD HAVE HAD PROBABLY BEEN ABLE TO GO OUT AND FIND
24 ANOTHER JOB. THE MEASURE OF THE DAMAGES IS NOT WHAT THEY
25 COULD HAVE DONE, IT IS WHAT THEY DID.
26 THE COURT: NO, I UNDERSTAND.
27 MR. GRONEMEIER: RIGHT. SO THAT SHE'S ENTITLED
28 TO THE COMPENSATION FOR THE REMAINING TERM OF THE

Page 43
1 CONTRACT. THE FACT THAT THEY COULD HAVE LIMITED THEIR
2 LIABILITY TO ONE YEAR, IS NOT THE MEASURE OF DAMAGES.

3 THE COURT: RIGHT.

4 MR. GRONEMEIER: THE FACT THAT THE CODE SAYS
5 THAT YOU CAN'T BUY THEM OUT FOR -- YOU CAN'T PAY THEM MORE
6 THAN ONE AND A HALF YEARS SALARY AS A BUY-OUT, AGAIN
7 THAT'S, THAT DOESN'T LIMIT HER DAMAGES. THE CONTRACT
8 CONTINUED AND THEREFORE, SHE IS ENTITLED THROUGH THE
9 COMPENSATION, THROUGH THE REST OF THE CONTRACT, AND
10 THROUGH THE DAMAGES TO HER PENSION, THAT WAS CAUSED BY NOT
11 CONTINUING TO GET TWO YEARS AND THREE MONTHS OF STRS
12 CREDIT.

13 THE COURT:

LESS MITIGATION.

14 MR. GRONEMEIER:

RIGHT.
15 SHE MITIGATED TO THE TUNE OF APPROXIMATELY,
16 ABOUT 145, $150,000 A YEAR.

17 THE COURT: OKAY.

18 MR. GRONEMEIER: BUT THE COMBINATION OF THE
19 CONSULTING WORK AND THE -- AND GETTING THE STRS PENSION.
20 SO THAT'S OUR CASE, THANK YOU.

21 THE COURT: ALL RIGHT. THANK YOU.
22 ALL RIGHT, MR. SLEETH...

Page 44

MR. SLEETH.

EVEN BEFORE SHE HAD ENTERED INTO THE
5 CONTRACT WITH THE DISTRICT, SHE LIED TO THE BOARD RIGHT AT
6 THE INCEPTION.
SHE PUT INTO A DOCUMENT THIS BOARD THINKS
7 I'M GOING TO STAY HERE EIGHT YEARS, BUT I HAVE NO
8 INTENTION OF STAYING ANY LONGER THAN THREE OR
FOUR YEARS.
9 IN HER NEGOTIATIONS, HER FOCUS WAS ENTIRELY UPON
10 RETIREMENT. AND AFTER SHE TOOK ON THE JOB
,
HER FOCUS WAS
11 ENTIRELY RETIREMENT. THAT BECAME AN OBSESSION THAT WAS
12 REPEATEDLY BROUGHT UP BEFORE THE DISTRICT,
AND WAS
13 ULTIMATELY ACTED UPON IN JUNE OF 2009 AFTER SEVERAL
14 ATTEMPTS TO DEAL WITH IT, BUT THEN, IN THAT PARTICULAR
15 INSTANCE, SHE FAILED TO PREPARE THE MINUTES. SO WE DON'T
16 KNOW WHAT THAT ACTION WAS THE BOARD TOOK. THE MINUTES SAY
17 THE BOARD CHANGES THE SUPERINTENDENT'S CONTRACT. MOTION,
18 SECOND, UNANIMOUS.
19 BUT IT DOESN'T SAY WHAT IT DID. WE'VE GOT

20 SOME DOCUMENTS THAT SHE WAS PROPOSING TO USE THE LANGUAGE
21 SALARY RETIREMENT BENEFIT. WHICH WE TALKED ABOUT IN THE
22 ORIGINAL BENCH TRIAL. AND IF THAT THAT WAS ADOPTED BY THE
23 BOARD IT IS STILL AMBIGUOUS BECAUSE RETIREMENT IS
24 INCONSISTENT WITH SALARY AND SALARY IS INCONSISTENT WITH
25 RETIREMENT SO
WE DON'T KNOW WHAT THEY ACTUALLY MEANT SINCE
26 THEY WERE AMENDING 8E, I
T LOOKS LIKE THEY WERE KEEPING IT
27 IN BENEFIT SECTION NOT SALARY WHICH WOULD HAVE RAISED AN
28 ISSUE WITH STRS ANYWAY.

Page 48

DENA WHITTINGTON WILL TESTIFY. DENA
8 WHITTINGTON WAS THEN THE ASSISTANT SUPERINTENDENT FOR
9 FINANCE. SHE WILL TESTIFY THAT DR. MCCLAIN CAME IN AT
10 NOON
, HALF OF OUR DAY WAS OVER BY THE TIME SHE GOT THERE.
11 SHE CREATED CHAOS IN THE DISTRICT BECAUSE SHE'S EITHER NOT
12 THERE OR SHE LEFT A TELEPHONE NUMBER FOR US, BUT SHE
13 COULDN'T BE REACHED AT THAT NUMBER. SO ALL OF THE ISSUES
14 THAT WOULD HAVE GONE TO THE SUPERINTENDENT IF SHE HAD BEEN
15 IN HER OFFICE DESCENDED UPON DENA WHITTINGTON, SHE
16 COULDN'T GET HER JOB DONE.
17 JANET BERNARD WILL ALSO TESTIFY THAT SHE
18 WAS NEVER THERE, ARRIVED LATE, WENT ON A CRUISE WITHIN TWO
19 MONTHS AFTER SHE HAD STARTED THE JOB.
A CRUISE THAT JANET
20 BERNARD UNDERSTANDS DR. MCCLAIN WAS TRYING TO AVOID THE
21 BOARD KNOWING THAT SHE HAD SET OUT BEFORE SHE WAS EVEN
22 HIRED.
23 JANET BERNARD WILL TESTIFY THAT SHE WAS NOT
24 PREPARED FOR MEETINGS AND THAT AT A MEETING SHE TURNED TO
25 OTHER DIRECTORS TO ANSWER THE QUESTIONS THAT WERE DIRECTED
26 TO THE SUPERINTENDENT AND WHICH A SUPERINTENDENT WOULD
27 ORDINARILY HIRE.

Page 51

[Mr. Sleeth contd.:]

23 BUT AFTER THAT EVALUATION SHE WAS LARGELY
24 NOT THERE.

THERE WAS AN EVENT THAT OCCURRED THERE WAS A
25 PARENT COMPLAINT IN DECEMBER, THE BOARD
INVESTIGATED IT,
26 AND IT ULTIMATELY RESULTED IN A REPRIMAND FOR
MISCONDUCT...


[Maura Larkins comment:

The above charge about the parent complaint is shockingly
disingenuous.  Sure, it's not a good practice to have a principal
investigate herself
, BUT IT IS STANDARD PRACTICE IN
SCHOOL DISTRICTS, AND HAS BEEN VEHEMENTLY DEFENDED
BY STUTZ ARTIANO LAW FIRM, SPECIFICALLY IN MY CASE
(in
which Chula Vista Superintendent
Libia Gil appointed Rick
Werlin to investigate my complaint against him).  The
standards being used against McClain are not the normal
standards that administrators are expected to follow.  McClain
would NOT have been hired if she were in the habit of making
a big deal out of parent complaints and undermining
principals.  What school districts should do is get together and
design state-wide policies about how ALL investigations
should be conducted--but t
his is not going to happen.  Business
as usual will continue.   Schools WANT to have arbitrary
control of investigations, and their lawyers protect this
power.It's shameful that McClain has been set up in a lose-lose
situation; she'd have been attacked no matter how she
handled the parent complaint.] Schools WANT to have arbitrary
control of investigations, and their lawyers protect this power.]
...
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Del Mar Union School
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Interview of DMUSD
attorney Dan Shinoff
Sharon McClain lawsuit
Sharon McClain v.
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SHARON MCCLAIN ED D
VS. DEL MAR UNION
SCHOOL DISTRICT
37-2010-00100467-CU-WT-CTLSan
Diego            
Date Filed: 09/17/2010
CU-WT Wrongful
Termination

03/25/11 08:45AM C-64    
Nevitt, William R. Jr.         
Civil Case Mana
37-2010-00100467-CU-WT-CTL     
D)Del Mar Union School Dist
Daniel R Shinoff         

[Note March 21, 2011: This
case can not be found in a
party search of the court
index, but it did appear on the
court calendar. I found the
case by searching for the case
number.  What is the motive
for this concealment?  The
following appears instead of
the names of parties in the
case:

Plaintiff/Petitioner  
Last Name or Business
Name           First
Name           Primary (P)  
No party was found.  

Defendant/Respondent  
Last Name or Business
Name           First
Name           Primary (P)  
No party was found.]
Lawsuits DMUSD
San Diego Education Report
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San Diego
Education Report
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SHARON MCCLAIN VS. DEL MAR UNION SCHOOL
DISTRICT--
Trial Transcript
SUPERIOR COURT OF CALIFORNIA, SAN DIEGO COUNTY
Judge Meyer.
Wrongful Termination
37-2010-00100467-CU-WT-CTL
Day One--The court is mystified as to why the district didn't
give the required 30-day notice to McClain.
 

[Maura Larkins comment: Since Mr. Shinoff's law firm has failed so many times to serve court orders on me,
I'm guessing that Mr. Shinoff thinks it confers some sort of advantage not to let the other party know what's
going on.  I think he trying to "catch his opponents unaware."  I don't think the firm is simply incompetent.  I
think they're trying to give their clients the kind of representation that their clients want.]

THE COURT:

I SUPPOSE THE ANSWER IS THAT RELATIONSHIP BETWEEN THE BOARD AND THE COMMUNITY AND
THE SUPERINTENDENT HAD DETERIORATED TO THE POINT WHERE
THE DISTRICT WAS WILLING TO
TAKE THE RISK THAT THE 30 DAYS MIGHT REALLY MEAN 30 DAYS.
--Page 22 (see below)


Mr. Gronemeir:
THE THERE WAS A PUBLIC RECORDS ACT REQUEST FOR THE SHINOFF FIRM'S BILLING RECORDS.
DR. MCCLAIN IS CHARGED WITH HAVING WRONGLY RELEASED THEM BECAUSE ALLEGEDLY, SHE
DIDN'T ELIMINATE ALL OF THE DETAILS THAT SHOULD HAVE BEEN ELIMINATED.
--Pages 31- 32 (see below)
Transcript
Trial transcript McClain v.
SMUSD
Sept. 2012