Federal probe finds in favor of school whistleblower
Casa Grande Valley Newspapers
March 13, 2008

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Was an advocate for the rights of limited-English speakers

By MARK COWLING, Editor March 13, 2008

"The District's actions were intended to intimidate, threaten, coerce, and discriminate against you," the the U.S. Department of Education's Office of Civil Rights (OCR) reported to her last month at the conclusion of its investigation.

The district agreed to pay $57,519 to the whistleblower in a settlement agreement between Florence Unified School District No. 1 and the OCR, signed by the superintendent and School Board president on Feb. 13.

After withholding for taxes and retirement, she was actually paid $27,160, plus $4,143 for documented medical and COBRA expenses after the district prematurely terminated her insurance without her knowledge.

The district, on the other hand, argued that its actions to demote and terminate the employee were for unacceptable job performance, not because she was a whistleblower.

However, the OCR concluded the district could not show, by its treatment of any other employees, that its handling of the whistleblower was usual and customary.

The Florence Reminder agreed not to identify the whistleblower by name at this time, as she begins a new job with another Arizona school district. After two years with the Florence district, she left the district's employ at the end of the last school year.

The damages the district paid are only meant to cover the pay she would have received had she been treated properly, according to Silverio Garcia, a school rights activist from Avondale. She could still argue for pain and suffering and punitive damages in court. Garcia said she isn't likely to be the only one.

"The district has opened itself up for big things to come if people wish to pursue them. .... This is just the beginning," Garcia said.

Richard Lyons, a Mesa attorney who represented the district during the OCR investigation, said Tuesday, "The district has no comment and will continue to have no comment."

In 2006, Garcia filed a 1,744-page federal complaint alleging that students and parents with limited English skills were not being accommodated as required by federal law in the Florence school district. That complaint resulted in an agreement for corrective action between the OCR and the district a year ago.

While he was researching that complaint, Garcia said he began to see how the district was treating the whistleblower. Soon after completing the first complaint, he began preparing a complaint on behalf of the whistleblower. The OCR notified the whistleblower by letter that it had agreed to investigate the allegations on May 31.

Specifically, the complaint alleged the district retaliated against her for advocating for national origin and language minority students, and for participating in an OCR complaint. After an investigation, the OCR agreed.

A 10-page letter from the OCR to the whistleblower on Feb. 20 concluded:

"OCR finds by a preponderance of credible evidence that the District knew of your participation in the original OCR complaint before it decided to end your employment relationship. OCR further finds that the District wanted you removed from your position in retaliation for your participation in the prior OCR complaint and your advocacy on behalf of ELL students and parents. The District's actions were intended to intimidate, threaten, coerce, and discriminate against you for the purposes of interfering with your rights secured by Title VI of the Civil Rights Act of 1964."

A fourth-generation Florence native, the whistleblower said she has been in education for more than 14 years. She earned a master's degree in English as a Second Language from Arizona State University at the end of 2006.

Garcia said the fact the district would treat a "hometown girl" in this manner is surprising: "If this can happen to a hometown, home-grown person, you can pull this stuff off on anybody. So there's no limits to who they'll do this to.

"... She was outspoken, thorough in her understanding (of what federal law required). They just didn't want to hear it," Garcia said.

Or as the whistleblower put it, "I was in trouble for standing up for employees and standing up for ELL kids. ... If I'm guilty of anything I'm guilty of being very idealistic."

Former superintendent Dr. Richard Sagar commented Wednesday in an e-mail reply to a request for comment: "I always held (her) in high regard and would have recommended her for renewal had I not taken a leave of absence. I believe there were board members who unduly influenced the decision to sever her employment."



No record of closed door session

According to the OCR, individuals filing a complaint or participating in an investigation are protected by federal law against harassment, retaliation or intimidation. Nevertheless, the district made a preliminary decision not to renew the whistleblower's contract in January 2007, "soon after the District learned that the original OCR investigation had been filed and when it knew or suspected that you were behind it," the OCR's letter to her said.

In a Jan. 17, 2007 closed-door session with then-Superintendent Sagar and the School Board, one board member discussed three principals, one assistant to the superintendent and the whistleblower, all of whom the board wanted dismissed.

Since this meeting had been posted to discuss the superintendent's evaluation, Sagar immediately indicated to the board that this discussion was a violation of Arizona open meeting laws, he told investigators. He said he told the board he felt that the individuals were doing a fine job and he would not recommend them for non-renewal of their contracts.

During the same meeting, Sagar offered his resignation effective June 20, 2007. The board accepted his resignation and placed him on paid administrative leave until the end of his contract.

One board member confirmed later to the OCR that the split between Sagar and the board was based on the fact that the board wanted three principals and one administrator out. The board member claimed he never brought up the whistleblower's name. Other board members and the county attorney were adamant that no individuals' names were ever mentioned in the executive session.

But the OCR ultimately found Sagar's testimony, "largely corroborated by his wife and by one board member making a statement against interest, coupled with his resignation based on significant differences of opinion with the board, very credible."

No minutes of the meeting could be found. "Either no minutes were generated or the minutes were destroyed," the OCR concluded.

Garcia asked, "Was it so revealing and brutal, they didn't want a record?"

It was the duty of the vice president - at the time, Hank Gooday - to keep the minutes.

Gooday was asked Tuesday what happened to the minutes. He said in an e-mail response, "I remember in general that we had a meeting, but I don't remember all the details. And according to the Arizona Revised Statutes, I can't discuss any matters discussed inside an executive session outside of those meetings, except with another active board member. If I do, I'm in violation of the law."


Retaliation alleged

The OCR said both Sagar and former Assistant to the Superintendent Jeff Strand testified that the whistleblower did excellent work and provided excellent training to more than 100 teachers within the district.

But the whistleblower got along less well with her subsequent supervisor, then-Assistant Superintendent for Instruction Joel Knorr.

On June 15, 2006, the whistleblower was given a "letter of direction" telling her to make no written statements concluding that the district was in violation of the law. She was directed to bring her concerns to the attention of administrators through the proper channels. She was prohibited from addressing the School Board directly.

The OCR concluded, "the clear import or the letter was to intimidate, coerce, or threaten (the whistleblower) from informing others about possible Title VI violations in the District."

Title VI prohibits discrimination on the basis of race, color or national origin in activities and programs that receive federal money from the U.S. Department of Education.

In an interview Tuesday, the whistleblower was asked why the district would intimidate and harass her, rather than work to implement her suggestions for improving service to ELLs. She was momentarily stumped, except to say there was a personality conflict between herself and Knorr from the beginning.

"Mr. Knorr is a huge bully and Mr. (Tony) Jimenez (at the time, assistant superintendent for human resources) was right beside him. ... Joel Knorr thought he was messing with a really stupid blonde. Why would he have done things so blatantly?"

She brought in her own mediators to meetings after, she says, Knorr and Jimenez "began to tag-team me. I realized I needed witnesses in the room."

In his second interview with the OCR, Knorr admitted he had read the whistleblower's e-mails on approximately six occasions. She was taken off e-mail lists in which she had previously been included.

Knorr, contacted by e-mail at his new school district, provided only an off-the-record response.

Garcia said Nine approached the whistleblower on April 6, 2007, just 11 days after Nine began working for the district, and informed her, "You either resign or we're not going to give you a good reference." He did not present official notification from the board, as required by law, or a reason, Garcia said.

After the OCR made an agreement with the district for corrective action, "I was crying; I told Dr. Nine I wanted to stay and be part of the solution," the whistleblower said. "I was never part of the problem."

But she says Nine told her, "I'm sorry, your window of opportunity is closed in Florence."

Garcia said the she was excluded from meetings, and when she did attend meetings, "they would talk down to her."

Her ELL responsibilities were diminished until she was transferred to Copper Basin K-8 School with responsibility to implement a "Newcomers' Program" with no materials, no funding and no direction, she said.


Satisfied with the outcome

Before the first federal complaint was filed, the whistleblower said she found small children sitting in the school library all day; teachers said they couldn't teach these students because they didn't know English.

She said she also helped the district to properly report its ELL students so the district could finally receive all the federal funding it was due.

The whistleblower said she was generally satisfied with the outcome of the OCR investigation.

"Not one thing I alleged was found to be false. ... The remedies will never take care of the suffering and the embarrassment and the humiliation. The outcome exonerated me from a lot of the accusations that the district made."

The remedial action required of the district included removing all negative statements from the whistleblower's personnel file and providing a draft letter of her "positive attributes," on district letterhead and signed by the superintendent.

After telling the OCR that the whistleblower was unprofessional and a poor teacher, Superintendent Nine had better things to say about her in the required letter, dated Feb. 15, 2008:

"(She) cares deeply for kids and is always their advocate. She is truly passionate about the English Language Learner program and is tireless in her efforts to assist those children. Additionally, (she) is a veteran instructor with a broad range of knowledge of ELL issues.

"Finally, one will always find (her) to be kind and caring, with the best of intentions," Nine wrote.

The whistleblower said the most important thing she learned was how valuable her civil rights are.

"Martin Luther King Day, this past January, meant more than ever to me. I never had a clue."

ęCasa Grande Valley Newspapers Inc. 2008