Newsmakers with JR
How SBUSD Beat Behrens' Reinstatement Bid
In the end, the lawsuit by Ed Behrens to regain his job as principal of San Marcos High School was doomed by one simple but stubborn legal fact:
Behrens was an “at will” employee of the Santa Barbara Unified School District – so Superintendent Cary Matsuoka and the school board ultimately didn’t need any special reason to can him.
That is the gist of a 12-page, redacted ruling that SB Superior Court Judge Pauline Maxwell issued on May 9, apparently capping a 16-month cause célèbre saga of controversy over his ouster.
“The procedure for removing a principal is simple,” Judge Maxwell wrote. “It does not require a finding of cause and may be based upon no more than a personality conflict, and does not entitle the affected administrator to a hearing.”
Attorney Leila Noel, who represents Behrens, said in an email that Judge Maxwell's ruling is in error, and that an appeal will be forthcoming.
"Parties always have the right to seek appellate review of trial court rulings," she wrote to Newsmakers. "We believe the Judge’s ruling was not correct, and we intend to seek appellate review."
Our story to date. As every Newsmaker knows, the Behrens story began in January 2018, with the discovery of online video content, assembled by a handful of big brain San Marcos male scholars, featuring a list of female students targeted for harm; one knucklehead brandished a firearm in furtherance of the alleged mission.
In following months, the handling of the “chat room incident” by Behrens – and by Matsuoka and his cabinet – became a high-profile public conflict and debate; amid the controversy, the superintendent, backed by four of five school board members, demoted Behrens to teaching status for the current school year.
(For those who missed the early acts of the drama, you can catch up with the Newsmakers' handy reading list here, here, here, here and here)
Although the affair has many political nuances and legal complexities, it boils down to allegations by Behrens and his supporters that: a) Matusoka made him the scapegoat after the chat room incident erupted and b) then used it as a handy excuse to oust him, as part of a broader strategy to put in place high school principals who would be more loyal in carrying out his wishes; c) did so via illegal processes and procedures.
As parents loudly backing Behrens organized a political organization that emerged during last fall’s school board elections, Behrens went to court to fight for reinstatement, represented by the win-at-all-costs law firm led by Barry Cappello and partner Noel, who alleged his removal was carried out illegally.
Now, several ancillary issues remain in that case, but Judge Maxwell’s order demolished the central arguments and aim of the legal action.
“The Court cannot find that the District has a ministerial duty to reinstate petitioner Behrens as principal of SMHS, “ she concluded, “nor can it find that the District abused its discretion in removing him from that position and reassigning him to a classroom teaching position.”
Here are five other takeaways, for the record, and for junkies of l'affaire San Marcos (do not operate heavy machinery after reading).
Matsuoka vs. Behrens, early rounds. Within the case file, a previously unreported document shows that Matsuoka had long planned to demote Behrens and would have done so whether or not the chat room incident happened.
It suggests that the timing for the announcement of Behrens removal had more to do with a mandatory deadline of March 15, for school professional employees to be informed of their status for the following year, then the controversy then boiling at San Marcos.
On March 19, 2019, school district attorneys submitted a filing that included a sworn declaration from the superintendent, in which he referenced his efforts to manage and improve the principal's job performance so the latter would meet the standards of the former.
Apparently things didn't go well, according to Matsuoka:
"My personal counseling of Mr. Behrens didn’t work, and by the fall
of 2017, I determined to reassign Mr. Behrens.
"I did not send Mr. Behrens a reassignment notice at that time because I was concerned that Mr. Behrens’ poor performance would get even worse once he received the notice, and the school year had just started in the fall of 2017.
To mitigate the risk of worse performance, I waited close to the March 15, 2018, deadline to issue the notice." (Emphasis ours).
That statement, however, does not explain the fact that the job performance in Behren’s personnel file from the previous June was mostly positive, according to a summary of it widely circulated last year by San Marcos parents who supported Behrens, to whom he had provided some materials from his personnel file.
Counter-countering that assertion, however, another local education source familiar with the history of Behrens’ tenure, who was not involved in the lawsuit, said that some district officials were unhappy with his performance, dating back to previous Superintendent Dave Cash's tenure.
Once again, however, it's a moot point, given Judge Maxwell's ruling that Matsuoka’s stated reasons for the demotion were sufficient under the law. That statement of reasons read as follows, according to the court file:
“A change in leadership at San Marcos High School would be in the best interests of the school and the District.
"Fresh leadership brings a different set of eyes to the ongoing challenges in public education and commonly results in new initiatives and approaches in promoting the advancement and educational opportunities of all students.
"My recommendation that you be released as principal isn’t based on any single or chain of events but rather stems from an examination of many factors pertaining to your leadership over a substantial period.”
That statement, which the judge characterized as a “without cause” explanation for Behrens being reassigned to the classroom, is in “full compliance” with California’s Education Code, other state law and SBUSD policy, she wrote.
Redacting the record. Such issues cannot be determinatively reconciled because Behren's entire personnel file, which attorney Noel during litigation submitted under seal, is redacted from the ruling and the case file.
This presents a paradoxical situation, with Behrens insisting there was nothing in his personnel history to justify his firing, while declining to make public records that he says support that argument.
Maxwell ruled in favor of Behren's motion to keep his personnel records sealed, she wrote, "in order to preserve petitioner’s right of privacy and confidentiality in that information."
"If sealing of the information is not permitted, there is a substantial probability that (Behrens') rights to confidentiality and privacy would be eliminated," she concluded.
The "Secret Memo." During litigation, attorneys for Behrens claimed in filings the existence of a “secret memo” that Matsuoka used to persuade a majority of school board members to support his campaign to unseat the principal.
According to the argument, board members thus had access to allegations by the superintendent which Behrens never saw and to which he therefore, did not have the chance to respond, as required by law.
The judge had previously rejected the argument and, in her ruling, further demystified the matter.
Although the memo itself, prepared by school board attorneys, was not in his personnel file, she wrote, the information it communicated was.
The memo only "summarized portions of his personnel file and was provided to the Board members 5 days prior to the meeting at which his transfer was to be acted on," the judge wrote.
“The Memo contained no information that was not already in Behrens’ personnel file, nor indeed could it have, since it was not prepared by anyone personally familiar with Behrens’ actions as principal, and was instead prepared by counsel and consisted of a summary of the more recent documents in the personnel file.
"Behrens contends that the Memo cherry-picked the negative information in his personnel file, and whitewashed the positive information, but the Board also had ample evidence of Behrens’ many positive actions and contributions before it when it considered the reassignment.”
Maxwell also wrote, elsewhere in the decision:
"Although (Behrens) believes that the District possessed other specific 'secret reasons' for his removal, Matsuoka’s statement of reasons…is a legally sufficient, and sufficiently specific, reason for his removal."
Game, set, match.
Above and beyond. Hundreds of Behrens supporters turned out to testify or demonstrate their support on his behalf at a school board meeting on March 13, 2018, when Behrens himself made a strong, personal plea to be retained,
After public comment, the school board met behind closed doors for more than two hours. When they came back, four members of the board as then constituted – past trustees Kate Parker and Ishmael Ulloa, along with current members Wendy Sims-Moten and Jackie Reid -- voted with Matsuoka against Behrens; only incumbent Laura Capps voted with him and his community supporters.
Although it will doubtless annoy and enrage Behrens supporters who were disappointed after that meeting and said it was a farce, Judge Maxwell wrote that giving the then-principal and his backers the opportunity to make their case went above and beyond what was required or necessary of the superintendent and board.
"In providing Behrens the ability to present his case to the board, the District was already providing more process than that which was allowed for," she wrote.
Tip of the cap. Although the Behrens affair generated emotional and sometimes angry conflicts about the management of the district, it also has served as a crucial catalyst in refocusing community attention on public schools.
In November 2016, there were three openings on the five-member school board and only three candidates stepped forward: Capps, Reid and Sims-Moten, all of whom thereby took seats without having to seek or win a vote.
Last year, seven candidates ran a vigorous and substantive campaign for two seats; last week, more than 100 people turned out for a school board meeting to make their voices heard on a variety of issues; next year, three board seats - hello Capps, Reid and Sims-Moten - will be on the ballot and a field of contenders is expected.
So thank you Ed Behrens, and San Marcos parents, for reminding the community of why paying attention to our public schools matters.
For the record: Last word to Behrens attorney Noel: "Your article suggests the case is over, but it is not."
This story has been updated with comments from legal counsel for Ed Behrens.
Images: Ed Behrens; Behrens and supporters at the school board March 2018 (Paul Wellman/Independent); Superintendent Matsuoka does his best imitation of a deer in the headlights at a meeting with San Marcos parents in April 2018; Santa Barbara Superior Court Judge Pauline Maxwell; The school board that voted 4-1 to oust Behrens, Capps (2nd from left) dissenting; Calvin Coolidge, 30th President of the United States.