PROFESSOR MICHAEL CHWE vs. SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT
Verified Petition for Writ of Mandate Directed to Santa Monica Malibu Unified School District Ordering Compliance with the California Public Records Act
See pdf attachment of Professor Michael Chwe’s Public Records Act lawsuit against the Santa Monica Malibu Unified School District:
The Santa Monica Malibu Unified School District has Publicly Misrepresented its Own Legal Obligations and than Admits in Court that they Were Legally Obligated To Release Information Through the California Public Records Act
After over 150 parents wrote a letter on December 7, 2010 to Supt. Tim Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about the SMMUSD’s finding that Mr. Ari Marken had sexually harassed a 13-year-old girl, Supt. Cuneo stated in a newspaper interview that the SMMUSD could not legally disclose details about the case. However, in its court filings, the SMMUSD admits that they are legally required to release this information.
See pdf attachment of the Santa Monica Malibu Unified School District’s Opposition to Ari Marken’s Opening Brief which admits to its legal obligations to release information:
Generally, complaints and/or charges of misconduct against a public employee can/must be disclosed if “the complaint is of a substantial nature and there is reasonable cause to believe the complaint or charge of misconduct is well-founded.” (See Bakersfield City School Dist. v. Superior Court (2004) 118 Cal. App. 4th 1041, 1044; see also BRV, Inc. v. Superior Court (2006) 143 Cal. App. 4th 742.)
The Santa Monica Malibu Unified School District Was Thereafter Ordered to Release their Investigation Report Concerning the Sexual Harrasment of its Students by their Teachers
See pdf attachment to the Court of Appeals of the State of California, Second Appellate District’s landmark ruling in Professor Chwe’s lawsuit against the Santa Monica Malibu Unified School District:
The Court of Appeal of the State of California, Second Appellate District, ruled that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.”
Thomas Beltran, former Lincoln MS teacher, was convicted in December 2008 of sexually molesting eleven Lincoln students over a period of more than ten years.
However, a student complained about Mr. Beltran two years earlier, in March 2006. Even though this March 2006 complaint was serious enough to deserve a police investigation, the SMMUSD removed all records of this complaint and claimed complete ignorance after Mr. Beltran was arrested.
The SMMUSD has refused to answer any questions about its handling of the March 2006 complaint. For details, go to: http://chwe.net/safety/beltran/
In March 2006, an eighth-grade Lincoln MS student made a written complaint about Thomas Beltran, two years before he was arrested for sexually molesting students. However, on May 8, 2008, after Mr. Beltran’s arrest, Asst. Supt. Mike Matthews said that “this is all new to us” and said that there were no complaints about Mr. Beltran in his personnel file.
One might expect that a handwritten student letter about a possibly abusive teacher would be among the most sensitive and crucial of all records kept by a school district.
On February 28, 2011, SMMUSD attorneys wrote that the district did not have a copy of the student’s letter.
(See pdf copy of the attached letter)
DANIELLE BAEZ vs. BURBANK UNIFIED SCHOOL DISTRICT et al.
The Court of Appeals Also Upheld The Trial Court’s Award of $3,224,569.30 in Attorneys fees and $2,000,000 Million in Punitive Damages to Baez
The jury awarded Baez $199,398 in compensatory damages (consisting of $99,398 for past economic loss and $100,000 for past pain and suffering), and $2 in punitive damages. The trial court awarded attorney’s fees to Baez in the amount of $3,224,569.30.
“In this case, the trial court properly exercised its discretion in awarding attorney’s fees to Baez for the time spent in the first trial.” Justice ZELON, J.
See pdf copy of Appellate Court’s January 25, 2016 Decision:
See link: http://chwe.net/safety/failures.html
See pdf attachment:
The Santa Monica Malibu Unified School District demonstrates a consistent pattern of evading responsibility for child safety. The SMMUSD has refused to answer questions about teachers who have sexually abused and sexually harassed children, failed to inform parents when their children have been victims of potentially criminal harassment, destroyed evidence concerning harassment of children, asked parents to destroy emails and not talk to each other about teacher sexual harassment of children, removed evidence of child abuse from its own records, impugned the testimony of its own employees who report child abuse, ordered teacher’s aides to not talk to parents, tried to intimidate students and parents, tried to mislead parents about their legal rights, publicly misrepresented its own legal obligations, and violated California state law.
1. In November 2011, the parents of four children accused Jennifer Becker, Juan Cabrillo Elementary special education teacher, of abusing their children. Four teacher’s aides witnessed these actions and the case is being investigated by the Los Angeles County Special Victims Bureau. SMMUSD administrators responded to only one of the many reported incidents and ignored the others. Sara Woolverton, SMMUSD special education director, told parents that the four teacher’s aides are not credible because they are committing a “mutiny.” http://chwe.net/safety/becker/
2. In May 2011, two Santa Monica HS students on the wrestling team locked an African American teammate to a locker, shouting “Slave for sale” and displaying a noose. They are currently being investigated on hate crime charges. Santa Monica HS administrators failed to inform the victim’s mother of the incident, tried to intimidate the victim by telling him that the wrestling program might be canceled, and destroyed cell phone pictures taken by other students of the noose. http://www.santamonicadispatch.com/2011/06/smmusd-said-to-deny-civil-rights-of-students/
3. Ari Marken, Santa Monica HS teacher, sexually harassed a thirteen-‐year-‐old girl in December 2008. The SMMUSD has refused to release any information about Mr. Marken’s violation, in violation of California state law, and illegally delayed its response in order to allow Mr. Marken to try to stop or further delay the release of this information. http://chwe.net/safety/marken/
4. Thomas Beltran, former Lincoln MS teacher, was convicted in December 2008 of sexually molesting eleven Lincoln students over a period of more than ten years. However, a student complained about Mr. Beltran two years earlier, in March 2006. Even though this March 2006 complaint was serious enough to deserve a police investigation, the SMMUSD removed all records of this complaint and claimed complete ignorance after Mr. Beltran was arrested. The SMMUSD has refused to answer any questions about its handling of the March 2006 complaint. http://chwe.net/safety/beltran/
5. Carl Hammer, former Santa Monica HS band director, was convicted of a felony involving a fourteen-‐year-‐old girl in June 2005. After he was fired from his position in the SMMUSD, he continued to be paid by the Santa Monica HS band program to write musical arrangements for the band, using money from parent donations, with the full knowledge of SMMUSD administrators. No SMMUSD staff member has ever taken responsibility for re-‐hiring Dr. Hammer after his conviction. http://chwe.net/safety/hammer/
6. Mike Hearn, former Santa Monica HS assistant coach, was convicted in October 2005 on nine sex-‐related felony charges involving two 15-‐year-‐old Santa Monica HS students and another 17-‐year-‐old girl. http://chwe.net/safety/hearn/smdp100605a.pdf
On May 21, 2008, ten parents wrote a letter to SMMUSD Supt. Dianne Talarico asking 14 questions about the SMMUSD’s handling of the case of Lincoln MS teacher Thomas Beltran, who was later convicted of sexually molesting eleven Lincoln students over a period of more than ten years. On May 30, 2008, Supt. Talarico responded saying that “The active investigation status of this case prohibits the district from responding to many of your questions at this time.” We never received a further response. On September 2, 2010, long after the criminal case against Mr. Beltran was resolved, I wrote to Superintendent Tim Cuneo asking for the district to now answer our questions. Supt. Cuneo never responded. http://chwe.net/safety/beltran/chwe20080521.pdf
On December 7, 2010, over 150 SMMUSD parents wrote a letter to Supt. Tim Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about Mr. Ari Marken, a Santa Monica HS teacher who was found by the SMMUSD to have sexually harassed a thirteen-year-old ninth grade girl in one of his geometry classes. Supt. Cuneo and Dr. Pedroza did not respond. (http://chwe.net/safety/marken/). The parents of the girl have never been given any information about the results of the SMMUSD investigation apart from this letter saying that Mr. Marken violated SMMUSD policy 5145.7. However on January 24, 2012, the Court of Appeal of the State of California, Second Appellate District, ruled that “Marken occupies a position of trust and responsibility as a classroom teacher, and the public has a legitimate interest in knowing whether and how the District enforces its sexual harassment policy. . . . the public’s interest in disclosure of this information—the public’s right to know—outweighs Marken’s privacy interest in shielding the information from disclosure.” See http://chwe.net/safety/marken/marken.pdf
The SMMUSD has destroyed evidence concerning harassment of children
Several Santa Monica HS students took cell phone pictures of the noose in the wrestling team practice room. These pictures were essential evidence, as the display of a noose to terrorize another person is a specific crime under California Penal Code section 11411. However, without reporting the matter to the police, Santa Monica HS administrators confiscated students’ phones and destroyed the pictures. http://chwe.net/safety/wrestling/smdp20110617.pdf
The SMMUSD has asked parents to destroy emails and not talk to each other about teacher sexual harassment of children
On August 31, 2010, SMMUSD Supt. Tim Cuneo sent a memo to parents asking them to destroy an email which Mr. Patrick DeCarolis, attorney for the 13-year-old girl sexually harassed by Mr. Marken, sent to parents on August 30, 2010, asking for help and information. This email was communication entirely between private citizens. Supt. Cuneo felt that he had the authority to write: “Please destroy all copies of the email and do not forward it or discuss the content of the email with others.” http://chwe.net/safety/marken/cuneo20100831.pdf
The SMMUSD removed evidence of child abuse from its own records
In March 2006, an eighth-grade Lincoln MS student made a written complaint about Thomas Beltran, two years before he was arrested for sexually molesting students. However, on May 8, 2008, after Mr. Beltran’s arrest, Asst. Supt. Mike Matthews said that “this is all new to us” and said that there were no complaints about Mr. Beltran in his personnel file. One might expect that a handwritten student letter about a possibly abusive teacher would be among the most sensitive and crucial of all records kept by a school district. On February 28, 2011, SMMUSD attorneys wrote that the district did not have a copy of the student’s letter. http://chwe.net/safety/beltran/aalrr20110228.pdf
The SMMUSD has impugned the testimony of its own employees who report child abuse
On October 22, 2011, teacher’s aides in the special education classroom at Cabrillo ES informed parents that the special education teacher Jennifer Becker was abusing their children. On October 28, 2011, the parents of four students met with SMMUSD director for special education Sara Woolverton. At this meeting, Dr. Woolverton stated that the four teacher’s aides were not credible and not trustworthy, and were committing a “mutiny” because Ms. Becker was making them work. http://chwe.net/safety/becker/
The SMMUSD has ordered teacher’s aides to not talk to parents
Melissa Winder, teacher’s aide in the Cabrillo ES special education class, states that Bekah Dannelly, SMMUSD special education coordinator, visited the special education classroom to order the teacher’s aides to not talk, text, or call the parents of the special education students.
The SMMUSD has tried to intimidate students and parents
After the hate crime incident involving two members of the wrestling team, Santa Monica HS H House principal Leslie Wells told the victim that “The incident could get the whole wrestling program canceled.” The victim did not tell his mother about the incident, reportedly because he did not want “to make a big deal out of it.”
On September 8, 2010, I wrote Supt. Cuneo asking specifically whether parents are legally obligated to destroy Mr. DeCarolis’s email. In his reply on September 9, 2010, Supt. Cuneo wrote: “The further dissemination of inaccurate information, which may include slanderous accusations, comes with it legal risk or liability. As such, the District response to the recipients about the information did not mince words in describing the seriousness of further dissemination.” Supt. Cuneo did not make any specific claim that anyone said anything slanderous. His response was nothing more than an attempt to intimidate.
The agreement between the SMMUSD and the Santa Monica Malibu Classroom Teachers Association states that if a student or parent wants to file a complaint against a teacher, the teacher can request a meeting. However, “if the complainant refuses to attend the meeting, the complaint shall neither be placed in the unit member’s personnel file nor utilized in any evaluation, assignment, or disciplinary or dismissal action against the unit member.” This policy is a license for intimidation. Very few children, or even adults, would be courageous enough to make a complaint against a teacher knowing that they would have to then meet the teacher face to face.
The SMMUSD has tried to mislead parents about their legal rights
After Supt. Tim Cuneo asked parents to destroy and not talk about an email sent to them by Mr. Patrick DeCarolis concerning Mr. Ari Marken’s sexual harassment of a 13-year-old girl. One must conclude that the SMMUSD is willing to intentionally mislead parents. Of course no parent is legally obligated to destroy any emails, regardless of implications for the district. The SMMUSD has no business telling parents what they can and cannot talk about. See Chwe email to SMMUSD Superintendent dated September 8, 2010. http://chwe.net/safety/marken/chwe20100908.pdf
The SMMUSD has publicly misrepresented its own legal obligations
After over 150 parents wrote a letter on December 7, 2010 to Supt. Tim Cuneo and Santa Monica HS principal Dr. Hugo Pedroza asking for information about the SMMUSD’s finding that Mr. Ari Marken had sexually harassed a 13-year-old girl, Supt. Cuneo stated in a newspaper interview that the SMMUSD could not legally disclose details about the case. However, in its court filings, the SMMUSD admits that they are legally required to release this information. http://chwe.net/safety/marken/aalrr20111029.pdf
The SMMUSD has violated California state law
Under California Penal Code 11165.7, school personnel are legally required to report suspected child abuse to police. In the case of the alleged abuses in the special education classroom at Cabrillo ES, no one reported Ms. Becker’s actions to the police until the parents, informed by the teacher’s aides, reported it themselves.
The SMMUSD delayed in order to allow Mr. Marken to try to obtain a court order to stop the release of the records, ignoring the California Supreme Court ruling in Filarsky v. Superior Court (2002) that “the exclusive procedure for litigating the issue of a public agency’s obligation to disclose records to a member of the public” is a lawsuit initiated by the person requesting the records. http://ag.ca.gov/publications/summary_public_records_act.pdf
By not releasing the records concerning Mr. Marken’s violation, the SMMUSD is in violation of long-standing case law, including AFSCME Employees v. Regents of University of California (1978), which establishes that records concerning the actions of public employees who have been disciplined must be disclosed to the public. http://caselaw.findlaw.com/ca-court-of-appeal/1592245.html
The agreement between the SMMUSD and the Santa Monica Malibu Classroom Teachers Association states that if a student or parent wants to file a complaint against a teacher, no record of the complaint will be kept unless the student or parent agrees to a meeting with the teacher. This violates the California Code of Regulations Title 5, Section 4621, which states that “local policies shall ensure that complainants are protected from retaliation and that the identity of a complainant alleging discrimination remain confidential as appropriate.”
There are many other troubling issues with the Santa Monica Malibu Unified School District.
1. Student v Wendy Wax Gellis & SMMUSD:
This lawsuit alleges that the SMMUSD and Wendy Wax Gellis are criminally liable for violations of California Penal Code § 11166 and 11172(a) et seq. for filing a knowingly false child abuse report with child services and the police.
Santa Monica Dispatch Article Concerning Santa Monica-Malibu Unified School District’s Retaliatory Acts Against Students and Parents by Filing False Claims of Child Abuse with the Department of Children & Family Services.
See link to News Article here:http://www.santamonicadispatch.com/2009/01/smmusd-vs-student/
The lawsuit alleges that an example of retaliatory action by the SMMUSD and Wendy Wax Gellis taken against this family includes knowingly and maliciously filing a false child rape and domestic violence allegation with the local law enforcement and with the Los Angeles County Department of Children and Family Services (DCFS) in retaliation for parent’s exercise of their federally protected right to bring claims against the SMMUSD before the United States Department of Education’s Office for Civil Rights (OCR).
The family alleges that on December 18, 2013, SMMUSD employee named Wendy Wax Gellis made a knowingly false referral to the Los Angeles Department of Children and Family Services (DCFS), and to local law enforcement that parent raped her own son. The allegations were determined by all investigating agencies to be unfounded.
Click on Link to YouTube Video of:
N.B.F. vs. Santa Monica Malibu Unified School District & Wendy Wax Gellis:
Click on link to Ninth Circuit Court of Appeals Oral Argument dated March 9, 2017:
For details of this Federal lawsuit go to:
2. Student v SMMUSD:
9th Circuit Court of Appeals Case No. 13-55665 & District Court No. 2:12-cv-03059-SVWPJW
For details of this SMMUSD litigation, go to:
The Santa Monica Malibu Unified School District Did Not Act “Reasonably” When It Chose To Conduct An IEP Meeting Without the Parents’ Presence
*Legal Fees in the amount of $215,000 were approved by the SMMUSD’s Board of Education on June 29, 2015.
See link to the June 29, 2015 Board of Education Minutes: Re: Attorney’s Fee Settlement in the amount of $215,000
3. Other Superintendent Sandra Lyon’s Errors in Judgment:
“SANTA MONICA TEACHER WAS RIGHT, SUPERINTENDENT WAS VERY, VERY WRONG”
4. Severe Bullying at Malibu High School and Superintendent Sandra Lyon’s Ratification of the Conduct:
For details of this pending litigation, go to:
Student vs. Santa Monica Malibu Unified School District (SMMUSD); Sebastian Dane Sartorius; Jordan Clarke et al.
LOS ANGELES SUPERIOR COURT COMPLAINT
SPECIAL INTERROGATORY NO. 13:
LIST THE FULL NAME AND JOB TITLE OF THOSE INDIVIDUALS AT SMMUSD (AND/OR MALIBU HIGH SCHOOL) RESPONSIBLE AMENDING/REVERSING CANCELING AND OR OTHERWISE MODIFYING THE DISCIPLINARY SUSPENSION OF DEFENDANT SEBASTIAN SARTORIUS ISSUED IN OR AROUND NOVEMBER 2012.
RESPONSE TO SPECIAL INTERROGATORY NO. 13:
SANDRA LYON, SUPERINTENDENT OF THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT.
5. PCBS REMOVED FROM SANTA MONICA SCHOOLS BUT LEFT IN MALIBU SCHOOLS
Superintendent Sandra Lyon cares more about protecting landfills than protecting children and teachers.
AMERICA UNITES FOR KIDS & PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY vs. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT
UNITED STATES DISTRICT COURT for the CENTRAL DISTRICT OF CALIFORNIA (Western Division – Los Angeles)
CIVIL DOCKET FOR CASE #: 2:15-cv-02124-PA-AJW
See link to America Unites for Kids & PEER’s Complaint against the Santa Monica-Malibu Unified School District.
6. Superintendent Sandra Lyon ordered the use of Fumitoxins and Strychnine on Saturday, Aug 22, 2015 at Malibu High School, Juan Cabrillo and Webster Elementary schools despite hundreds of letters from parents in protest.
Her reckless actions put kids and wildlife at risk. The Fumitoxin Tablet warning label says that re-occupancy cannot occur for a minimum of 72 hours, but based on the weather in Malibu, more likely 5 days. Sandra Lyon told parents that in 48 hours kids could return to the fields.
See America Unites For Kids Freedom of Information Act request dated Aug 22, 2015:
Malibu Parent’s Letter: Protecting Children
Malibu Parent Stacie Cox’ Public Comment about Superintendent Sandra Lyon:
“An empathetic and confident leader would make all her decisions based on how to best protect children, and not make decisions based on legally what she can get away with. You seem to act on false information, archaic ideals, and without a conscience. Your behavior is unconscionable and you should be ashamed of yourself.”
8. THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT HAS FAILED ITS AFRICAN AMERICAN, HISPANIC, DISABLED & ECONOMICALLY DISADVANTAGED STUDENTS AT MALIBU HIGH SCHOOL, SANTA MONICA HIGH SCHOOL & JOHN MUIR ELEMENTARY SCHOOL
9. CURRENT HEALTH ISSUES WITH STUDENTS AND TEACHERS AT MALIBU SCHOOLS
• 6 teachers with thyroid cancer;
• 4 alumni (28-year-old)with thyroid cancer;
• 1 current student with thyroid disease, possible thyroid cancer
• 25 teachers with thyroid disease (including 14 of 30 Malibu Middle School teachers);
• 10 alumni in their 20s with thyroid disease;
• 1 alumni (22-year-old) with environmentally induced melanoma;
• 2 current teachers with environmentally induced melanoma;
• 1 teacher hospitalized from an environmentally-induced rash;
• 1 current student with an environmentally-induced rash lasting several months
• innumerable cases of headaches; persistent rashes; daily migraines; infertility issues; hair loss; immune issues; respiratory issues; and diabetes.
There is a statistically significant “relationship” between spending your days at Malibu High School and Thyroid Cancer.
“There is no safe level of PCBs. All they do is cause harm. They increase the risk of a great number of diseases, and the one that’s of most significance in a school is that they’re known to reduce cognitive function — learning and memory. And that’s the last thing you want in a school.” David O. Carpenter, M.D., director of the Institute for Health and the Environment at the University at Albany.
10. The Santa Monica-Malibu Unified School District’s Classroom Teachers Association Urges SMMUSD Officials to Consider the Wellbeing of its Children and Staff
Santa Monica Teacher’s Public Comment:
I am a teacher at John Adams middle School. My classroom has been between 86 and 88 degrees every day since school started. I have not been provided with a fan and I’m using two of my own. It is unbearable . I have been suffering from heat exhaustion. My symptoms include nausea, dizziness and an inability to focus. My students are unable to concentrate. This is not a new issue. It is hot for at least 3 months out of every school year since I started working for SMMUSD 15 years ago. This is unacceptable.” 16 September 2015 20:20 See link: http://smdp.com/concerns-classroom-temps-heat/150774
Over $8,000,000 spent so far and still rising!
The Santa Monica Malibu Unified School District appears to be more interested in attempting to limit their exposure to liability from a toxic tort complaint, rather than to just simply comply with the TSCA, and protect its students and teachers from this continuing harm.
12. Student vs. Principal Brandon Gallagher; Assistant Superintendent Mark Kelly; Director of Student Services Tara Brown; Senior Office Specialist Dina Mendoza; School Counselor Al Trundle & THE SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT
Re: Disability Discrimination
Plaintiffs allege that Mark Kelly’s conduct in baiting student was so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency,” Mintz, 905 P.2d at 563. Mark Kelly’s knowledge that the plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition rises to both extreme and outrageous conduct.” (“eggshell plaintiff” principle)
The 9th Circuit recently stated in
A.G. v. Paradise Valley Unified School District:
Some students may have vulnerabilities which necessitate a greater degree of caution on the part of school districts and their employees. In M.W. v. Panama Buena Vista Union School Dist., supra,
Abuse of Power
The Santa Monica-Malibu Unified School District’s Superintendent Sandra Lyon should be fired for not adequately protecting the School District’s students and teachers from all of this continuing harm.
For details, go to:
It’s time to fire Superintendent Sandra Lyon
See pdf copy:
See link to Change.org Petition:
Email the Santa Monica Unified School District’s Board of Education:
|Oscar de la Torre
|Dr. Jose Escarce