Metropolitan News-Enterprise


Thursday, September 30, 2004


Page 3


S.C. Declines to Depublish Ruling on Release of School Employee Records


By a MetNews Staff Writer


The California Supreme Court declined yesterday to depublish a Fifth District Court of Appeal ruling requiring the Bakersfield City School District to release discipline records of a school administrator charged with murder to the Bakersfield Californian.

Justices voted 5-0 at their weekly conference to turn down a request by the California School Boards Association that the May 20 ruling in Bakersfield City School District v. Superior Court (Bakersfield Californian), F043967, be stripped of its value as precedent.

Chief Justice Ronald M. George was absent and did not participate. Justice Marvin Baxter, whose brother-in-law, Fifth District Presiding Justice James Ardaiz was on the lower panel, recused himself.

The CSBA’s request was opposed by the Californian and Californians Aware, a citizens’ group that supports government openness.

The Fifth District panel held that Kern Superior Court Judge Kenneth C. Twisselman II applied the correct standard in ordering release of a redacted version of records about a February 1996 incident which did not lead to discipline of Vincent Brothers, then vice principal at Bakersfield’s Emerson Middle School. Brothers was charged earlier this year in the June 2003 shooting deaths of his wife, three children and mother-in-law.

The school district contended that under the California Public Records Act, Twisselman should have ordered the documents released only if he found either that discipline was imposed or that there was reasonable cause to believe the complaint or charge of misconduct was true.

After reviewing the discipline file in camera, Twisselman ruled the documents regarding the 1996 complaint should be make public, since there was reasonable cause to believe it was “well founded.” The judge described the complaint only as alleging “[s]exual type conduct, threats of violence and violence,” and the appeals court did not provide any further details in the opinion by Justice Betty L. Dawson.

Dawson said Twisselman correctly applied American Federation of State, County and Municipal Employees v. Regents of University of California (1978) 80 Cal.App.3d 913 in weighing the public’s right to know of alleged wrongdoing against an individual’s right to privacy. That case, she noted, held that where allegations are of a substantial nature and there is reasonable cause to believe the complaint is well-founded, public employee privacy must give way to the public’s right to know.

The school district’s reliance on AFSCME, City of Hemet v. Superior Court(1995) 37 Cal.App.4th 1411, and Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 for the proposition that a charge or complaint is well-founded only if it is found to be true or the public employee has been disciplined based on the complaint was misplaced, Dawson explained.

Those cases support “the premise that there is strong policy for disclosure of true charges,” not “the premise that either a finding of the truth of the complaint contained in the personnel records or the imposition of employee discipline is a prerequisite to disclosure,” the justice declared.

The standard advocated by the district would be unworkable, Dawson said, since it would require trial and appellate courts to determine the veracity of the complaint from “little or nothing more than written records.”

Dawson said that after a de novo review of the of the Brothers file, the appellate court agreed with Twisselman that the records should be disclosed.

Justice Steven M. Vartabedian and Ardaiz concurred in the opinion authored by Dawson.

San Francisco attorney Thomas R. Burke of Davis Wright Tremaine, who represented the newspaper, said at the time of the Court of Appeal decision that the  district had been “quite adamant” about not producing the records, noting it even appealed to the newspaper to drop its bid to obtain them on the ground that the district could not afford to litigate the issue. The newspaper responded by explaining that litigation would be unnecessary if the district complied with the requirements of the CPRA by releasing the records, Burke said.

In other action at the conference, the justices:

Declined to review the June 9 ruling of this district’s Div. Seven in Schlessinger v. Holland America, N.V., B166213, enforcing a forum selection clause in a cruise ship passenger contract.

The ruling requires Beverly Hills attorney Gary Schlessinger, who had sought to bring a class action in Los Angeles Superior Court on behalf of California residents who became sick on a July 2002 Holland America cruise, to litigate in U.S. District Court in Seattle.

A putative class action on behalf of all affected passengers has already been brought in that court. More than 200 people reportedly became ill as a result of exposure to the Norwalk virus.

Schlessinger, himself a passenger on the cruise, filed a complaint naming his wife and two other passengers as plaintiffs. He alleged that Holland America Lines failed to warn passengers on the cruise from Vancouver to the Alaska ports of Juneau, Skagway, Glacier Bay, and Ketchikan that they were at risk of exposure to the virus.

Holland America Lines moved to dismiss the Superior Court suit on erroneous-forum grounds. In opposition to the motion, Rose Schlessinger filed a declaration saying she never received the cruise brochure, which pointed out that the cruise contract contained a forum selection clause and advised that the contract could be accessed on the company’s Website.

Schlessinger further declared that she never viewed the Website, and that she was informed she could not get a refund if she cancelled within 23 days of departure.

It was undisputed that Holland America does not send out cruise contracts until final payment is made, and that in this case the contracts were mailed to the plaintiffs’ travel agent 16 days before the cruise.

Los Angeles Superior Court Judge George Wu and the Court of Appeal concluded that the plaintiffs were bound by the forum-selection clause because they booked the cruise months in advance and had multiple opportunities to view the contract. They could have done so online, obtained the brochure, or called their travel agent, Presiding Justice Dennis Perluss reasoned in his opinion for the Court of Appeal.

Agreed to decide whether sale of unqualified securities in violation of Corporations Code Sec. 25110 is a strict liability crime. Div. Two of this district’s Court of Appeal ruled in People v. Salas, B159750, that the offense is a general intent crime which carries a knowledge requirement, and overturned a conviction.


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