The San Dieguito Union High School District surprised me by finally fulfilling my Public Records Act request for a copy of the settlement agreement between the district and the recently concluded special education case discussed in my three previous columns.
Per my request, I also received copies of invoices to the Orbach Huff & Henderson law firm whose attorney Sarah Sutherland has represented the district throughout this family’s nearly three-year ordeal.
The district initially declined to provide the information, writing that the agreement and invoices would contain private, identifiable student information and that “the necessity for preserving the confidentiality of the records outweighs the necessity for disclosure.”
I resubmitted my PRA, asking again for the same information and suggesting the district redact personal information.
I question why the district didn’t redact in the first place – perhaps thinking I would abandon my efforts. But my second requests came through at last, and were indeed heavily redacted.
The redactions, the district wrote, were required because “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the records.” Not sure about “clearly” – but OK, fine.
The settlement agreement shows that the district will reimburse the family $108,117 for the costs the family paid to date to provide schooling for the past two years for their child at The Winston School in Del Mar, a non-public school.
The district also agreed to authorize placement at Winston for the student, and Matthew Storey, the family’s attorney, said that applies until the student graduates.
SDUHSD will also pay Storey $174,000 for costs incurred to represent the family in its efforts to battle the district to secure appropriate placement for the family’s child.
Going back to the start of this troubling story, that Storey initially asked San Dieguito to place the student at The Winston School rather than the highly restrictive placement the district was offering – and that NO attorneys’ fees were involved at that point. But the district refused.
Thus ensued a complicated series of what ultimately became three court cases, all the way to the Court of Appeals. And what eventually happened is that the district granted the family’s initial request, but not after putting the family through prolonged distress and wasting public dollars.
That’s $174,000 of unnecessary spending of public money, if the district had only granted Storey’s initial request. But as the district continued to refuse to change its position, Storey took the case and, reasonably, his charges began to add up.
Pain and suffering
Settlement agreements rarely if ever for pain and suffering, lost wages or the other countless hours this family spent combating the district’s decisions to embark on such irresponsible and inexplicable litigation.
The child’s mother, Kelly Ogawa, said she can’t begin to quantify the number of hours spent on this case, saying only that it was “very impactful.”
“I had to take medical leave which was attributed to the stress of the case,” she said.
She said the settlement gave them what they wanted, and that extra payment for time lost from work and resulting health problems were “not something we were ever looking to explore.”
Ogawa said, by going public, she hopes her story will inspire others in similar situations to come forward.
Storey said he’d like to share more but is bound by the settlement’s confidentiality clause.
He did say this process was “awful because it caused a lot of grief for the family” and called the process “a waste of time and money.”
To review, on May 20, the school board voted unanimously to file a motion with the federal court asking the same judge who decided the prior case in favor of the family to reconsider her decision.
At that same meeting, SDUHSD’s five trustees also voted unanimously to appeal the federal court’s decision to the Ninth Circuit Court of Appeals.
“This really ramps up litigation,” Storey said at the time.
Both sides were preparing for further court cases when, rather suddenly, on June 24, SDUHSD’s Board of Trustees, with trustee Phan Anderson absent, voted 4-0 to approve “a mutual and no-fault compromise student agreement to resolve outstanding allegations.”
Why the sudden change by the district’s school board to agree to a settlement so shortly after voting unanimously to pursue continued litigation is a mystery.
I asked board president Rimga Viskanta and SDUHSD Superintendent Anne Staffieri to explain, but the district responded as follows: “We are in receipt of your email. The district has no comment.”
The final settlement agreement was signed on June 21, 2024 by SDUHSD Associate Superintendent of Business Services Stephen Dickinson, by Storey and by Sutherland.
The invoices
The redacted invoices paid to the Orbach law firm related to the three Ogawa cases, going back to Feb. 28, 2022, total $251,453.07.
Broken down by calendar year, Orbach was paid $132,639.02 in 2022, $52,090.14 in 2023, and $66,723.91 in 2024 so far.
The board’s Warrants report for 6/6/24 through 7/18/24 shows $76,943.91 paid to Orbach. But Rachel Schoonmaker, SDUHSD’s communications coordinator, said none of those invoices were connected to the Ogawa cases.
She added though that the district expects an additional invoice related to these cases but was unsure when it would come.
Invoices were sent to and approved by Tiffany Hazlewood, SDUHSD’s director of special education, who is reg from her post at the district, effective Sept. 1, 2024, to serve as the executive director of the North Coast Consortium of Special Education.
The district’s special education department is overseen by Bryan Marcus, SDUHSD’s associate superintendent of educational services.
So, combining the dollars paid to the family’s attorney plus the money paid to the district’s counsel, the total waste of public funds comes to more than $425,000.
And what did the public get for this money? Zip.
The definition of dereliction of duty is the failure to do what you should as part of your job. Every board member, the superintendent, Hazlewood and Marcus all share responsibility for pursuing this inexcusable course of action.
And not just for wasting public money but also for causing unnecessary misery to the family.
To put this in perspective, $425,000 could up to six teachers or aides, or buy more than 875 ninth-grade science lab kits, 6,640 basic chemistry sets, countless books for libraries, dozens of band instruments, uniforms, P.E. equipment, personal computers, classroom supplies … the possibilities are endless.
Possible solutions
It’s clear there’s a critical need to control this runaway spending of public money on unnecessary special education litigation.
Attorneys have suggested that school districts consider using outside counsel who will only take cases on contingency. This would remove the sense that available money is a bottomless pit.
Also suggested for districts like San Dieguito is to hire a full-time attorney on staff whose job would include overseeing and reviewing the district’s special education staff, to assess critically the reasons behind every decision to pursue litigation and to seriously consider the likelihood of failure or success.
One problem is that the school board generally does not get involved until the process has advanced. Closed session board meetings typically include reviews from the district’s counsel and superintendent, and far too often the board simply provides consensus to pursue a wrong course of action, based on biased or faulty advice.
Perhaps the board should involve itself sooner. And board might probe a bit harder and ask more in-depth, challenging questions of counsel.
And they should never forget they are evaluating the best use of public money and have a duty to authorize expenditures wisely. That responsibility seems to have been forgotten.
It might also be helpful if the district could avoid considering how each case might affect future situations. Districts sometimes enter into litigation to deter other families from suing the district. Each case should be evaluated on its own merits, and not by how future cases might factor in.
There’s no shame in reversing course when board sense a catastrophe looming. At every step along the way, the board had a chance to step in and stop this nonsense, but didn’t.
Find a new hire for the director of special education who is student-centered and comes with a history of more mediation and less litigation.
Transparency is in short supply. Taxpayers deserve to know how the district is spending their money.
Finally, how about common sense? “Sue first and ask questions later” is not acceptable.
This case is an appalling example of a broken system where common sense and good judgment were trumped by bad advice and a culture of litigiousness. If there’s any lesson to be learned about this debacle, it’s that this toxic culture needs immediate drastic change.
Opinion columnist and education writer Marsha Sutton can be reached at [email protected].
Marsha Sutton is a columnist and presents her opinion. If you disagree or agree with her opinion, we’d like to hear from you. Email your comment to [email protected].
Column: Combines reporting, storytelling and commentary to make a point. Unlike reporters, columnists are allowed to include their opinions. Columnists in the Union-Tribune Community Press are identified clearly to set them apart from news reporters.
