Torrance City Council – A Town Hall Style Conversation About Local Politics

TUSD announced today that it prevailed in a long outstanding legal battle that challenged its relationship with Balfour Beatty.  Public Information Officer Tammy Khan declared victory via a media release proclaiming the following:

The Torrance Unified School District announced today that it prevailed in a lawsuit brought by local resident James McGee and the California Taxpayers Action Network (“CTAN”), of which Rick Marshall, another local resident, is the Treasurer, challenging the validity of the lease-leaseback agreements for the modernization of Hickory Elementary School, Madrona Middle School, North High School, Towers Elementary School, Riviera Elementary School, and Torrance High School. In the lawsuit, McGee and CTAN alleged that the District improperly awarded the lease-leaseback agreements and sought to invalidate the agreements. The District has been defending itself against these lawsuits since 2013.

In 2016, the state Court of Appeals affirmed the dismissal of six of the causes of action, leaving only the alleged conflict of interest as the basis for invalidating the lease-leaseback agreements.  At trial, Judge Michael Vicencia, ruled that McGee and CTAN’s sole basis for challenging the lease-leaseback agreements was moot because the six different projects being challenged were now complete. Judge Vicencia noted that McGee and CTAN did not seek an injunction to stop work on the projects nor did they avail themselves of the procedures to expedite the resolution of these types of cases in the courts.

Torrance Unified School District’s Superintendent, Dr. George Mannon, is very pleased with the ruling. “After six years of litigation, the District has prevailed in all aspects of the lawsuits,” he said. “School districts shouldn’t have to spend their limited financial resources defending themselves against such baseless lawsuits when a contractor who provides professional services to the District can have their agreements challenged in court. Regardless, this is a significant victory for the District as well as for the other California public school districts that use this project delivery method. The important thing is that our school facilities are being modernized to meet 21st century learning needs.”

Plaintiff’s attorney, Kevin Carlin, is not ready to cede the victory and plans to appeal the decision.  In an e-mail, Carlin called the decision a “temporary setback” and proclaimed that “it’s not over.”  Carlin then explained that:

“Before getting to the merits of my clients’ claim (that Contractor had a conflict of interest that required 100% disgorgement of all monies received by Contractor) the Judge let the Contractor put on its defense that no relief could be granted to Plaintiffs because the construction projects which were the subject of the conflicted contracts had been completed and therefore Plaintiffs’ claims were moot.

Obviously we will ask the Court of Appeal to reverse this Superior Court Judge’s ruling on the grounds that it is contrary to longstanding California law and public policy based on the following:

• “The pivotal question in determining if a case is moot is … whether the court can grant the plaintiff any effectual relief.”  Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574.
• Here Plaintiffs’ claims are not moot because the School District is legally entitled to the remedy of 100% disgorgement if there is a conflict of interest even if the contracts are fully performed.  Thomson v. Call (1985) 38 Cal.3d 633, 652.
• In fact, the Court of Appeal to which we are headed previously ruled in the 2006 case Carson Redevelopment Agency v. Padilla (2006) 140 Cal.App.4th 1323 that the 100% disgorgement required by Thomson is automatic…”

The trial brief submitted by Carlin which provides a more detailed summary of the issues can be be found here.

The Torrance Parent Student Alliance has endorsed challengers Jeremy Gerson and James Han for School Board. Gerson and Han are also endorsed by the Torrance Teacher’s Association. The incumbents Michael Wermers and Martha Deutsch are respectable people with an admirable history of public service. They should be commended and thanked for their time on the School Board, but neither should be re-elected to return to their seats for another term. TUSD is in dire need of a new direction and the incumbents represent more of the same.

A recent response by Wermers and Deutsch to a concerned parent is emblematic of why you should not vote for them this Tuesday. The concern dealt with the lack of a handrail on a ramp at a local school that was recently renovated. The parent wrote, “My daughter who is 7 already tripped and skinned her knee there and I’ve heard of a father who twisted his ankle on that same ledge. It’s very hard to notice if you are not paying direct attention to the uneven path.”

Deutsch didn’t respond at all. Wermers response was telling:

“I know that it seems counter-intuitive, but us on the school board know very little of the details of the construction going on at the actual school sites. I can’t speak for my colleagues, but part of the reason I don’t know school site details is an effort to stay out of the way. The last thing Don [Balfour Beatty Superintendent] and his people need is a board member stumbling around in our honorary Balfour Beatty hardhat asking questions.”

TUSD needs Board Members who are willing to invest the time to learn the details and who will do more than just “stay out of the way.” Too often concerns of parents are dismissed. TUSD needs leaders who are willing to ask the tough questions and work to solve the difficult problems, and who also have the courage to hold entities like Balfour Beatty accountable.

Deutsch’s lack of response is typical. She rarely speaks at Board meetings and quietly votes to approve every motion. She is filling a seat and letting school superintendent Dr. Mannon run the show. As representatives of various stakeholders, School Board members should do more than simply act as rubber stamps for Mannon. Plus, Dr. Mannon may not be there for much longer as retirement surely looms on the horizon. The community needs leaders on the School Board not puppets.

In recent years TUSD has been rocked by student sexual abuse scandals, the deterioration of its relationship with teachers, the controversial potential sale of the Hamilton site, and an alarming weakening financial position. It’s time for change.

The District paid over $30 Million to settle cases of students molested by a teacher. In that case, TUSD officials including Board members repeatedly denied any wrongdoing. The large settlement, however, suggests significance negligence by the administration. The current School Board never even apologized to the victims. Now, several more recent lawsuits involving student sexual abuse have emerged. The response by the current School Board to these incidents is not acceptable and they should be held accountable by being voted out.

TUSD needs new leaders who can restore trust with the community and the teachers employed by the District. Fresh faces, Gerson and Han represent the best chance for the District to move forward and chart a new course.

Jeremy Gerson

Gerson’s run, in particular, is admirable due to his willingness to literally put his career on the line. As a current TUSD teacher he is taking a gamble. Should he win, he has committed to voluntarily giving up his employment with TUSD so that he will not have to abstain from key votes. Should he lose, he could face negative repercussions as of the five candidates he has been the most outspoken critic of the current Board.

With regard to the incidents of sexual abuse Gerson said, “The district is still closing their eyes and their minds to issues. Our current school board is complicit … I am proud to run as an alternative to the current regime.” On fixing the relationship with teachers, Gerson commented:

“The current School Board has damaged the relationship with the teachers and other employees in the same way they damaged their relationship with parents. They have given the appearance that they are secretive, deceptive, and insulting to various stakeholder groups. A new attitude of inclusion is required. School board members need to start with the opinion that all stakeholders want our schools to be successful. They need to listen and respect the points-of-view given, so they can make fair and equitable decisions in the best interest of all communities in Torrance.”

James Han

Though a newcomer to politics, Han seems ready to tackle the big issues.  Of his experience he noted,

“As a pastor, one of the skills that I often need to use is to be a reconciler. I help to bring reconciliation through conflict resolution. I believe that I can restore the trust between the teachers and the district and have them come together to build a bigger vision for our students.  In addition, I can bring leadership to the board by making tough decisions that will be best for the students and yet at the same time have all interested parties be supportive.”  

Resolving the current conflicts at TUSD will not be easy and Han’s skills in conflict resolution will surely be put to the test. Some problems ultimately may not be solved, but Gerson and Han represent the best chance for sorely needed change.

A claim of judicial bias is the latest twist in an arduous five year legal battle between Torrance resident James McGee and school construction behemoth Balfour Beatty. Attorney Kevin Carlin, who represents McGee, filed a motion in late September seeking that the presiding Judge Stuart M. Rice either recuse himself or be disqualified from hearing the case due to judicial bias. A hearing to settle the matter is scheduled for this Monday.

Carlin’s claim of bias stems from the fact that the Judge’s current Law Clerk Emily Little has previously worked as an attorney for the law firm representing Balfour Beatty on the very same cases in question. That Little previously represented Balfour is not in dispute. A sworn declaration provided by representatives of Finch, Thornton, & Baird, LLP provided to the court states that Little worked at the firm from December 2014 to September 2016. During that time, Little worked directly on all three of the Balfour Beatty cases filed by McGee that are now pending before Judge Rice.

Carlin argued in his motion that:

“Members of the public when presented with the foregoing facts … that the Judge’s law clerk/research attorney has actively worked as an attorney for the defendant on the same three cases that are now before the judge might reasonable entertain doubt that the judge could remain impartial.”

The three cases were assigned to Judge Rice in mid-August. Judge Rice could have opted to voluntarily recuse himself from hearing the cases at anytime, but has so far chosen not to do so. Under California law a judge is supposed to disqualify themselves if “[a disinterested] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”  Code of Civil Procedure § 170.1(a)(6)(A)(iii).

McGee initially filed a public interest lawsuit on behalf of Torrance taxpayers in 2013. He later filed two similar suits. The suits sought to recover to TUSD $109 million that Balfour Beatty was paid via no bid lease leaseback construction contracts to build 6 schools. The suits alleged the contracts were illegal due to a conflict of interest because TUSD had previously contracted with Balfour Beatty since 2008 to serve as the District’s Construction Bond Program Manager. In that role, Balfour acted as a consultant for the District and developed the schedule, scope and budgets for TUSD’s $500+ million in school construction projects funded by Measures Y, Z, T and U.

Thus far McGee’s efforts have been upheld in two different appeals before the California Court of Appeal in Los Angeles. The government consultant conflict of interest legal theory they are relying on was also recently upheld by the California Supreme Court in People v. Sahlolbei (2017) 3 Cal. 5th 230  (See synopsis here).

TUSD previously refused to comply with a public records request seeking to ascertain how much TUSD has spent in legal fees fighting this lawsuit that could return millions of dollars to the District.

The public records request sought copies of all invoices received from and/or payments made to the law office of Atkinson, Andelson, Loya, Ruud, & Romo for legal costs associated with cases involving plaintiff Jim McGee and the District’s construction consultant Balfour Beatty. In response to the request, the District claimed that legal invoices are exempt from disclosure as they are privileged attorney-client communications. The District did not provide the reasoning behind not providing payment documents such as checks written to the law firm.

Balfour’s performance has recently come under fire due to mismanagement and construction delays at Anza Elementary and other local school sites. In response to the those challenges, School Board President Michael Wermers recently praised Balfour Beatty, “I want to thank Don Rondeau [Balfour Beatty Superintendent] for the work that was recently completed at Anza. It was a bit of a challenge, but I wanted to congratulate you … Balfour Beatty will make mistakes but they invariably hit homeruns, so thank you very much.”