casesYuriCalderon

Calexico Unified School District's Similarities with
Sweetwater
By Susan Luzzaro
San Diego Reader
Jan. 16, 2012

A tipster recently brought to the Reader’s attention the fact that Calexico
Unified School District is beginning to look like Sweetwater Union High School
District.

To begin with, Calexico’s district counsel is GCR, LLP, the attorney firm that
recently was suspended by Sweetwater’s interim superintendent Ed Brand. The
firm used to include Bonifacio Garcia, Yuri Calderon, and Rogelio Ruiz.
However, Ruiz is now suing his former partners for, among other things,
“making thousands of dollars in political contributions to favored
political candidates in an effort to influence government officials…,”
according to court papers filed in Santa Clara County in April of 2011.

Yuri Calderon of GCR was hired as Calexico district council in January
2011. Shortly after GCR was hired, Eric Hall and Associates was hired by
the district to work as a financial consultant.

Hall & Associates was also recently contracted by Sweetwater Union to
conduct an audit of Proposition O funds and came under fire for using
David Randolph to conduct the audit. Randolph had worked with Seville Group,
Inc., the suspended Proposition O bond program manager.

Bond money caused problems in Calexico as well. In 2004, Calexico's Measure
J, a $30 million construction bond, was passed. A 2010-2011 Imperial County
Civil Grand Jury stated that they had “uncovered irregularities” in Measure J
spending.

In a January 16 interview, Diana Harvey, a Calexico teacher, said, “In April of
last year, Calexico Unified began an audit into Measure J spending. But on
October 27, before the results of the audit were even made available to the
public, a new bond proposal was brought before the board which named
Calderon and Hall as those responsible for the bond.”

Board minutes from October 27 indicate that Calderon advised the board, “The
proposed bond would consolidate both bonds and any costs incurred would be
borne by the bond funds, and there would be no cost to the District if the bond
was not approved by the community.”

The board voted down consideration of the bond measure. However, on
December 14, 2010, the Imperial Valley Press reported that “Calexico Unified
School District directed its superintendent to find an accounting firm outside the
community to conduct a forensic audit of Measure J funds as well as to ask the
District Attorney's Office to review implications of fraud related to the misuse of
Measure J funds.”

On January 12, 2012, the Calexico board voted down trustee Joong S. Kim’s
resolution to terminate the services of GCR. In the same board meeting they
voted to censure Kim for “unprofessional behavior.”

Yuri Calderon is closely tied to the unfolding Sweetwater/Southwestern saga.
Calderon was treasurer for a political action committee that operated out of
Garcia’s office. The committee, called Citizens for Good Government in the
South Bay, was a political action committee that made generous contributions
to Sweetwater and Southwestern boardmembers.

Comments
anniej Jan. 16, 2012 @ 10:13 p.m.

i have seen the law suit that ruiz has filed. in it, one of his contentions is that
calderon and garcia used firm funds to influence the 2010 elections
(paraphrasing).

well, well, well, eric hall & assoc. looks like the 'independent' audit that brand
called for at that december meeting was a bunch of bull. nothing independent
about hall at all apparently...

and which recently elected board members took thousands from laura martinez,
good old bonny's wife? ah, that would be JOHN MCCANN, JIM CARTMILL, and
ARLIE RICASA (one of the board members recently indicted who is treating her
legal woes as a joke with all of her 'i love arlie' pink buttons. ms. ricasa, you are
NOT running for home coming queen - you are indicted on how many
counts?????????????????????????????? then there is bonnie garcia's
''''group''''' citizens for good government who also donated monies to those
board members mentioned above...

desertwaverat Jan. 16, 2012 @ 10:26 p.m.

Here is another disturbing fact.

As reported in the July 1, 2011 San Diego Union-Tribune.

Calderon used to be general counsel to Southwestern Community College
District.

http://www.utsandiego.com/news/2011/jul/01/southwestern-colleges-pays-18k-
investigate-22k-mai/?print&page=all

...

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San Diego Unified
Principals sued for lost
jobs, eventually winning

Court of Appeals, 9th Circuit
2003
321 F.3d 903

Barry BERNSTEIN; Anne Tracy Bolton; Linda
Buffington; Brenda T. Campbell; Alex
Cremidan; Patricia Dibos; Ron Echandia;
Otis Funches; Mary L. Lawlor, Dr.; Jose
Melchor; Ciprianita Powell; Lyle Rangel;
Duane Stevens; Russell Vowinkel,

Plaintiffs-Appellees,

v.

Edward LOPEZ; Sue Braun; John Debeck;
Ron Ottinger; Frances Zimmerman; Alan D.
Bersin; Anthony J. Alvarado; San Diego
Unified City School District, Defendants-
Appellants, and Does 1-10,

Defendant.

No. 02-55119.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 6, 2002.
Filed March 4, 2003.

Yuri Calderon and Roberta R.
Sistos, Burke, Williams &
Sorensen, San Diego, CA, for the
defendants-appellants.

George W. Shaeffer, Jr., Irvine, CA, for
the plaintiffs-appellees.

Appeal from the United States District
Court for the Southern District of
California; Marilyn L. Huff, District
Judge, Presiding. D.C. No. CV-99-
02714-MLH.
Before: PREGERSON, NOONAN and
TASHIMA, Circuit Judges.
Opinion by Judge NOONAN; Dissent by
Judge PREGERSON.
NOONAN, Circuit Judge:

The plaintiffs, who are former
principals or vice-principals of
public schools within the San
Diego School District, sued the
defendants, who are members of
the board governing the District,
as well as the superintendent of
schools and the chancellor of
instruction.

The plaintiffs claimed that the
defendants' reassignment of them
to their tenured teaching positions
at the beginning of a new school
year violated property rights in their
administrative positions secured to
them by the fourteenth amendment to
the constitution of the United States.
The defendants moved for summary
judgment on the basis of qualified
immunity. The district court held that
there were factual issues in dispute to
be resolved by a jury. The defendants
appealed.

We hold that no further facts need to
be determined and that as a matter of
law the defendants are protected
by qualified immunity because the
plaintiffs have no clearly
established right to continue in
their administrative positions.

FACTS

On June 15, 1999, the board, on the
recommendation of the superintendent
and chancellor, voted to assign the
plaintiffs, then principals or vice-
principals, to teaching positions,
effective July 1, 1999. The new
assignments paid less. The plaintiffs
asked the reasons for the board's
action. On July 14, 1999, the
chancellor responded by explaining
that a different style of leadership was
required in the positions they had held.
The plaintiffs attempted to appeal the
decision, but the district court found no
appeal procedure to be applicable.

PROCEEDINGS
3

On December 29, 1999, the plaintiffs
brought this suit. After various
amendments of their complaint and
various rulings of the district court that
court denied both the plaintiffs' and
defendants' motions for summary
judgment. As to summary judgment on
the basis of the defendants' qualified
immunity, the district court ruled that
there was a factual dispute as to
whether Administrative Procedures
7113 and 7767 applied to the plaintiffs
and that that dispute must be tried to a
jury before it could be determined
whether qualified immunity defeated
the plaintiffs' case. The defendants
appeal this denial of qualified immunity.

ANALYSIS
4

Jurisdiction. Qualified immunity is a
judicially-crafted device giving a large
measure of protection to the exercise
of judgment by public officials. Indeed it
is said to protect "all but the plainly
incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.
S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.
2d 271 (1986). As the immunity is
insulation from suit, an interlocutory
appeal from the denial of immunity is
appropriate, as Saucier v. Katz, 533 U.
S. 194, 121 S.Ct. 2151, 150 L.Ed.2d
272 (2001) has recently illustrated.
Where the immunity applies, the suit
should be "dismissed at an early stage
in the proceedings." Id. at 209, 121 S.
Ct. 2151.
5

The Clouded Property Right Asserted
The plaintiffs expressly disclaim any
property right in tenure as principals or
vice-principals but assert that the
board's adoption of certain rules of
administrative procedure (APs) and
memoranda of understanding (MOUs)
so limited the board's authority to
assign their administrative positions
that, in effect, the plaintiffs did have a
property interest in continuing to be
paid their higher administrative salaries
if the APs were not observed. This
property interest, they maintain, was
"clearly established." At the very least,
however, this proposition is debatable,
and the plaintiffs fail the first step
necessary to defeat the defendants'
immunity, a showing that the
defendants violated a clearly-
established constitutional right. Id. at
201, 121 S.Ct. 2151.
6

Public employment in California is, in
general, regulated by statute, the
rights of a public employee are
statutory, and "no employee has a
vested contractual right to continue in
employment beyond the time or
contrary to the terms and conditions
fixed by law." Miller v. State, 18 Cal.3d
808, 813, 135 Cal.Rptr. 386, 557 P.2d
970, 973 (1977). Statutes controlling
the terms of civil service employment
cannot be circumvented by contract.
Boren v. State Personnel Board, 37
Cal.2d 634, 641, 234 P.2d 981, 985
(1951). Collecting California cases, we
have recognized this long-standing
principle of California law and held that
neither an express nor an implied
contract can restrict the reasons for, or
the manner of, termination of public
employment provided by California
statute. Portman v. County of Santa
Clara, 995 F.2d 898, 905 (9th Cir.
1993).
7

Plaintiffs say that they have a case to
the contrary: Jones v. Palm Springs
Unified School District, 170 Cal.App.3d
518, 216 Cal.Rptr. 75 (1985). But the
plaintiff superintendent in that case
was hired under a California statute,
Education Code § 35031, expressly
providing a superintendent, "a term of
no more than four years." It was only
"during the term of her written
contract," which Education Code §
35031 gave the school board "specific
statutory authority to enter," that the
plaintiff could claim any procedural
rights. Jones, 170 Cal.App.3d at 528,
216 Cal. Rptr. 75. None of the plaintiffs
in our case was employed pursuant to
the exception created for contracts by
Education Code § 35031.
8

The plaintiffs also cite, as clearly
establishing their procedural right
amounting to a property right, the case
of McFall v. Madera Unified School
District, 222 Cal. App.3d 1228, 272 Cal.
Rptr. 345 (1990). McFall does repeat
the teaching of Jones about
procedures applicable "during the term
of a contract," but goes on to say, "By
contrast, the term of the appellant's
contract was at an end, and the board
merely determined not to renew." Id. at
1236, 272 Cal.Rptr. 345. The action of
the board in not reappointing the
principal in McFall was like that of the
board here; the principal had no case.
9

The two cases relied on by the
plaintiffs to clearly establish their right
fall very far short. Where authority to
make a contract is not exercised under
Education Code § 35031 or §
44929.20 there is no provision
excepting a school administration from
general state law governing public
employment. There is a provision by
which after a probationary period a
teacher may be certified and become
"a permanent employee of the district."
Cal. Educ. Code § 44885.5. There is a
provision that a teacher who is
assigned "an administrative or
supervisory position or assigned any
special or other type of work" retains
"permanent classification as a
classroom teacher." Id. § 44893. There
is a provision that when an
administrator or supervisor "is
transferred to a teaching position," the
board shall give him a written
statement of the reasons for such
transfer. Id. § 44896. The care with
which these protections of a teacher's
tenure are spelled out has the effect of
underlining the complete lack of a
provision for tenure for an
administrator not under a contract
executed under §§ 35031 or 44929.20.
10

Jones and McFall having failed to shed
the required refulgence on the
plaintiffs' asserted right, and the
statutory scheme leaving the right
unmentioned, the plaintiffs do have
one fall-back. They point to deposition
testimony that prior to the present
administration of the district, the district
did follow the APs and did interpret one
or both of the MOUs as requiring the
district to follow the APs in reassigning
administrators. The deposition of the
former school superintendent is
sufficient at this stage of the
proceedings to establish the past
practice and prior understanding of the
board and the administrators. The
testimony is insufficient to show a
clearly established constitutional right
to property when California statutory
and case law stand in favor of a school
board's unrestricted statutory authority
to appoint administrators to the
classroom at the start of a new school
year. Something more than past
practice is necessary to show that the
district created a property right in the
administrators and clearly established
it. No objective observer could
conclude that such a right clearly
existed or was violated by the
assignments made here.
11

California law jealously protects the
tenure of teachers, those on the front
line of education. At the same time,
California law does not protect the
tenure of administrators, that is of
those who must shape policy; their
more precarious positions are given
higher pay. If such administrators have
any contractual rights lawfully granted
by a school board, their remedy does
not lie in turning their grievance into a
claim that the Fourteenth Amendment
has been violated but in seeking such
redress as state law allows for violation
of state contracts in the courts of
California.
12

As the APs and MOUs, even if
understood to apply to the plaintiffs,
did not establish rights to property
protected by the United States
Constitution, there is no remaining
factual dispute to be resolved.
Summary judgment is appropriate.
13

The plaintiffs have given color to their
case by their deposition testimony that
after the June 15 meeting of the board,
they were told to remove their personal
papers from their offices and were
escorted to their offices by armed
school security officers. The plaintiffs
as of this date were administratively
suspended without reduction of pay,
but, so far as appears in the record,
there was no reason to subject them to
the supervision of school security
officers. The action does not establish
their case. It was an unnecessary
affront.
14

For the reasons stated, the judgment
of the district court is REVERSED, and
the case is REMANDED for entry of
judgment for the defendants.

PREGERSON, Circuit Judge,
dissenting:
15

I respectfully dissent. I would affirm the
district court's denial of defendants'
motion for summary judgment. I agree
with the district court that genuine
issues of material fact remain as to
whether the defendants are entitled to
qualified immunity. Where the
determination of qualified immunity
depends on material factual disputes, it
is appropriate for a court to deny
summary judgment so that these
disputes may be resolved by the trier
of fact. Roth v. Veterans
Administration, 856 F.2d 1401, 1408-
10 (9th Cir.1988) (whether defendants
deprived plaintiff of his property
interest required "resolution of several
disputed factual issues" and so the
court appropriately denied qualified
immunity for defendants on summary
judgment).
16

To address the issue whether the
defendants are entitled to qualified
immunity, an understanding of the
basic facts is essential. In the early
afternoon of June 15, 1999, before
plaintiffs were notified of their
demotions, the San Diego Board of
Education posted their names in the
San Diego Unified District Educational
Center informing the public that the
Board intended to demote the plaintiffs
at a meeting to be held that evening.
That evening, armed San Diego
Unified School District police officers
escorted plaintiffs from their offices in
schools located throughout the District
to the Board of Education meeting. At
this meeting, the Board notified
plaintiffs that they would be removed
immediately from their current positions
as principals and vice-principals and
demoted to their former teaching and
counseling positions. Plaintiffs were
told they immediately would be placed
on paid administrative leave for two
weeks and would return to their former
teaching and counseling positions on
July 1st when the new school year
began. Board members told plaintiffs
that they were not to return to their
former schools without being
accompanied by District police officers.
The police officers escorted plaintiffs
back to their respective schools. On
their arrival, each plaintiff was
instructed to remove their personal
items. Plaintiffs were then escorted off
of their school's premises.
17

Two weeks later, each plaintiff
requested a separate statement of
reasons for his or her demotion. The
Board provided each plaintiff a
statement in accordance with Cal. Ed.
Code § 44896 and San Diego School
District Administrative Procedure (AP)
7767 § C.4. The statements varied in
content but commonly claimed that
each plaintiff's style or vision "of
instructional leadership fails to match
the vision for school reform" set by the
District. Each plaintiff then filed an
administrative appeal pursuant to AP
7767 § C.4 and 7113 § C.2.
Defendants informed each plaintiff that
they were not entitled to an appeal nor
were they entitled to any of the other
due process protections set forth in the
District Administrative Procedures.
18

The Administrative Procedures of the
San Diego Unified School District had
been in effect since 1976. The Board
had promulgated the procedures
under the authority of Cal. Ed.Code §
35160. Section 35160 authorizes the
Board of a school district to enact local
legislation to meet the needs of each
district's unique circumstances,
provided that local regulations or
policies do not conflict with state law.
Cal. Ed.Code § 35160(a). AP 7767
and 7113 outline District policies and
procedures governing adverse actions
"against certificated management,
supervisory, and confidential
employees." AP 7767 and 7113
provide various due process
protections, such as the right to appeal
and the right to representation by
counsel, for employees demoted by
the Board. AP 7767 defines demotion
as "an involuntary change of
assignment, based on employee
performance, to a position at a lower
salary grade." AP 7767.
19

Though its applicability is contested, a
Memorandum of Understanding (MOU)
between the School District and the
Administrators Association of San
Diego that clarified and fortified the
due process rights of plaintiffs was also
in effect at the time plaintiffs were
demoted. The original MOU of 1992,
the MOU that preceded the MOU in
effect when plaintiffs were demoted,
was the result of extensive negotiations
between the Administrators Association
and the School District. District officials
testified that district legal counsel
reviewed that agreement and the
subsequent agreement. A former
superintendent of the District who had
participated in drafting the MOU of
1992 testified that the due process
protections were intended to apply to
the plaintiffs' demotion.
20

Defendants San Diego Unified School
District and Board of Education now
argue that they cannot be held to the
due process guarantees these
documents extended to the plaintiffs
because defendants never had the
authority to enact those guarantees
under California law. They contend
they are entitled to qualified immunity
because the plaintiffs cannot have a
clearly established right based on
documents that are trumped by state
law.
21

The majority accepts this argument
noting that the terms of public
employment in California are generally
regulated by statute. The majority
concludes that the silence of the
Education Code on the due process
protections extended in the
Administrative Procedures means that
no process above what is expressly
granted by statute is available to the
plaintiffs. Further, the majority argues
that contracts cannot circumvent
controlling statutes and thus no
property interest can arise from the
MOUs.
22

While I agree with the general
principles cited by the majority, I find
no conflict between the California
Education Code and San Diego's
Administrative Procedures and the
Memorandum of Understanding.
Assessment of this very issue by the
California Court of Appeal and the
District's own interpretation of state law
strongly suggest that defendants did
create legitimate additional due
process protections for its
administrative and supervisory
employees. See Misasi v. W.C.
Jacobsen, 55 Cal.2d 303, 308, 10 Cal.
Rptr. 850, 359 P.2d 282 (1961) ("the
administrative construction of a statute
by those charged with its interpretation
and enforcement is entitled to great
weight, and courts will generally not
depart from such an interpretation
unless it is clearly erroneous."). The
additional due process guarantees
provided by the Administrative
Procedures — i.e. the right of demoted
administrators to appeal and to be
represented by counsel — created a
property interest in plaintiffs in their
employment. Defendants deprived
plaintiffs of their property interest when
they refused to allow the plaintiffs to
exercise their rights under the
Administrative Procedures.
23

We look primarily to state courts for
interpretations of state law. See
Molsbergen v. United States, 757 F.2d
1016, 1020 (9th Cir.1985) (explaining
that when interpreting state law, courts
must look to decisions by the highest
court of the state and other sources
such as treatises and restatements).
The California Court of Appeal, in
McFall v. Madera Unified School
District, 222 Cal.App.3d 1228, 272 Cal.
Rptr. 345 (1990), was presented with a
factual situation nearly identical to that
of the plaintiffs in the instant case. In
McFall, the Court of Appeal addressed
the issue whether a School District is
prohibited by state law from enacting
additional due process protections for
its principals. Under the facts of McFall,
the Madera Board of Education
demoted the plaintiff, a principal, at the
end of his one year term. He argued
that his due process rights had been
violated because the Board had failed
to follow its own administrative
procedures that required the
superintendent to initiate all demotions.
The Court of Appeal ultimately decided
that the District's administrative
procedures explicitly limited the
requirement to "ordinary"
circumstances where the plaintiff's
demotion had been in "extraordinary"
circumstances. The important aspect
of the decision is that the court
approved of the additional due process
protections the District had afforded
the principal in their administrative
procedures. McFall, 222 Cal.App.3d at
1236, 272 Cal.Rptr. 345. The Court of
Appeal made no mention that the
additional procedures created by the
Madera School District conflicted with
state law, but explicitly found that the
plaintiff was entitled to those
procedures. McFall, 222 Cal.App.3d at
1236, 272 Cal. Rptr. 345 ("to be sure
appellant was entitled to the benefits of
No. 4113.2"). The Court of Appeal
further cited Jones v. Palm Springs
Unified School District, 170 Cal.App.3d
518, 529, 216 Cal.Rptr. 75 (1985), with
approval and quoted language from
Jones indicating that the incorporation
of school board rules and regulations
into the plaintiff's contract expanded
his due process rights. McFall at 1235,
272 Cal.Rptr. 345.
24

The majority makes much of the fact
that both the plaintiffs in Jones and
McFall served their respective terms as
provided by their contract. It is
important to note that if the
Memoranda of Understanding apply to
plaintiffs, they possessed a contract
with the District that incorporated the
administrative procedures. However,
as the majority points out, controlling
state law may not be circumvented by
a contract. As a consequence, the
existence of a contract could not be
the basis on which the McFall court
found the additional due process
protections acceptable. The McFall
court approved applying the additional
due process guarantees accorded to
the plaintiff by the administrative
procedures. This strongly indicates
that these additional due process
guarantees are not forbidden by
California law.
25

Our court has been clear that a
contract is not required for a property
interest to exist. Brewster v. Bd. of
Educ. of Lynwood Unified Sch. Dist.,
149 F.3d 971, 982 (9th Cir.1998)
(where a rule or understanding is in
place between an employer and an
employee, a property interest may
arise despite the lack of a contract).
Even probationary or non-tenured
employees may have property
interests in their jobs. Roth, 856 F.2d
1401, 1409 (9th Cir.1988) ("even as a
probationary employee, Roth could still
have a property interest in his job");
see also Connell v. Higginbotham, 403
U.S. 207, 208, 91 S.Ct. 1772, 29 L.Ed.
2d 418 (1971) (holding that a teacher
without tenure or formal contract
enjoyed due process rights).
26

Property interests are not solely
grounded in state law or in contracts,
but arise from a variety of sources from
which rules or policies develop that
create entitlements to benefits. Bd. of
Regents v. Roth, 408 U.S. 564, 577,
92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)
(stating that "nor, significantly, was
there any state statute or University
rule or policy that secured his interest
in re-employment or that created any
legitimate claim to it"); See Perry v.
Sindermann, 408 U.S. 593, 602, 92 S.
Ct. 2694, 33 L.Ed.2d 570 (1972)
(finding that a "common law" of a
particular institution developed by
circumstances of the employee's
service can also create a property
interest). The plaintiffs claim that a
property interest arose from the San
Diego School District Administrative
Procedures and the Memoranda of
Understanding. However, there are
material factual issues that must be
resolved to determine whether the
Administrative Procedures and the
MOUs apply to the plaintiffs. The
plaintiffs are entitled to the due
process protections of the
Administrative Procedures only if their
demotions qualify as a demotion based
on performance under the procedures.
There is a factual dispute as to
whether the reasons given for the
demotions were based on
performance. There is also a factual
dispute as to whether the 1992 MOU
provision that made AP 7767 and 7113
the "guarantee of due process for
Management Team members"
continued beyond the 1995 MOU which
was silent on the subject. Board
members testified that the district had
no intention of eliminating the due
process guarantees for Management
Team members by execution of the
1995 MOU. Such removal of
guarantees was never discussed with
the Administrators Association.
Plaintiffs also point out that the 1992
MOU stated "[t]he provisions of this
agreement shall remain in effect until
modified by the District and the
[Administrators Association]. Any
modifications must be agreed to by
both the District and the
[Administrators Association]."
Defendants reject this evidence.
Because there are factual disputes as
to whether the demotions were based
on performance and whether the due
process guarantees were undisturbed
by the 1995 MOU, the district court
correctly denied summary judgment.
27

A property interest does not fail to be
clearly established simply because the
relationship among statutes, local
legislation and contracts is
complicated. Nor does a right fail to be
clearly established simply because
there are factual disputes as to
whether the various instruments are
applicable to the plaintiffs' particular
grievances. See Roth, 856 F.2d at
1409 ("whether [a mutual]
understanding [creating a property
interest] exists will frequently turn on
factual issues."). I would allow the case
to go forward to resolve the material
factual issue of whether plaintiffs'
reassignments were based on their
performance and so qualified as
demotions under the Administrative
Procedures.
28

I would affirm the judgment of the
district court.

Burke Williams & Sorensen
701 B St # 1765
San Diego, California

Yuri Calderon is the owner or
official contact person (Manager).
Please call Burke Williams &
Sorensen at (619) 615-6672 for
more information about their
services. We will appreciate if you let
Yuri Calderon know that you know
the business and get the phone
number from my MoneyPro.org.

Yuri Calderon, attorney

See Bonny Garcia, partner of Yuri Calderon