Ex-Coach’s Bullying Investigation Report to Stay Private

Monday, December 3, 2018

Page 1

Court of Appeal:

Ex-Coach’s Bullying Investigation Report to Stay Private

By a MetNews Staff Writer

The Fourth District Court of Appeal has held that two documents from an investigation into allegations that a former high school girls’ volleyball coach bullied his players cannot be released under the California Public Records Act because the coach’s privacy interests outweigh the public’s interest in their disclosure.

Thursday’s opinion was written by Div. Two’s acting presiding justice, Art W. McKinster, and was not certified for publication.

The former Ayala High School girls volleyball coach, Bernie Wendling, was investigated by the Chino Valley Unified School District (“CVUSD”) in San Bernardino County after complaints were made that he had bullied his students by publicly yelling at them; he was also alleged to have conducted practice at his home, though no accusations of any violence or sexual conduct were levied against him. On Nov. 15, 2016, Wendling—who still teaches math at Ayala High School—resigned from his coaching position.

That occurred the day after Beau Yarbrough, a reporter for the Southern California News Group, made a California Public Records Act (“CPRA”) request of the district for, among other information, the status or outcome of any investigations of Wendling in response to complaints. The district agreed to give Yarbrough two disposition letters.

The teacher’s union, Associated Chino Teachers (“ACT”), petitioned for a writ of mandate to enjoin the district from releasing the reports. San Bernardino Superior Court Judge David Cohn denied the petition on Feb. 21, 2017.

It was stipulated that the reports not be disclosed while the matter was on appeal.

CPRA’s Limits

There are two versions of the opinion reversing Cohn’s judgment: one is the full opinion, which has been sealed, and the other has been publicly filed, with redactions. Wendling is referred to as “Doe” in McKinster’s opinion and referred to as “they,” with an explanation in a footnote that “[i]n order to protect the identity of Doe, we will use the gender-neutral pronoun ‘they.’”

Wendling was identified by name in news articles by Yarbrough published by the Inland Valley Daily Bulletin and the Riverside Press Enterprise—both newspapers of the Southern California News Group—as well as being referred to by name in the independent Chino Champion. His conduct was the subject of a Nov. 3 public meeting at the district’s headquarters at which parents and students—17, cumulatively—spoke.

The CPRA (Government Code §6250 et seq.) mandates the disclosure of public records upon request by a member of the public, with enumerated exceptions. These include personnel records where “the disclosure… would constitute an unwarranted invasion of personal privacy” and where “the facts of the particular case” indicate that “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record”

Purpose of Act

McKinster noted that act was designed to reconcile the public’s right of access to public information with an individual’s right to privacy. The appellate court’s role, he explained, is to weigh those two interests de novo in a case, such as the one at hand, where the facts are undisputed.

The parties acknowledged that the letters had been disclosed to the complainants. The school district opined, in agreeing to grant Yarbrough’s request, that such disclosure rendered the reports public documents and mandated their disclosure under the CPRA.

ACT contended that notwithstanding that disclosure, the personnel files exception to the CPRA still applied to the documents.

Qualifying Personnel Records

McKinster wrote:

“The disposition letters contain personal information that applies specifically to Doe….Because they include personal information about Doe to which access is limited to the employee’s supervisors, they qualify as personnel records. The scope of personnel records generally covers records ‘relating to the employee’s performance or to any grievance concerning the employee.’ ”

He added:

“Notwithstanding the above, CVUSD finds it significant that the letters ‘were not placed in [Doe’s] personnel file,’ and argues that because they ‘were specifically prepared for disclosure to members of the public,’ the letters do not qualify as personnel or similar files. We are not persuaded by the argument. Regarding the failure to include the letters in Doe’s personnel file, there are rational reasons for not including them. However, the letters do not lose the protection of section 6254, subdivision (c), merely because they are stored by CVUSD in a location other than personnel files….It is the contents of the documents themselves that determine their confidential nature.”

Balancing of Interests

The jurist said:

“Here, the public has a significant interest in the conduct of public school teachers and coaches, and in knowing how CVUSD handles allegations of their misconduct. We must decide whether the potential harm that disclosure of the disposition letters could cause to Doe’s privacy interest outweighs the public interest in disclosure.”

McKinster focused on the fact that “none of the complaints against Doe involved allegations of sexual-type conduct, threats of violence, and violence….Instead, they were limited to Doe yelling and belittling the student-athletes in public, [REDACTED] and holding practice at their [sic] home.”

Such actions, even if true, were appropriate.

“The same complaints could most likely be made and found true of every successful high school athletic coach across the nation. Doe’s conduct was objectively reasonable. They did nothing more than what most dedicated coaches do to motivate players, maintain discipline and team morale, and push athletes toward their full potential.”

Because Wendling’s alleged yelling at and insulting of his students was reasonable, McKinster explained, the public’s right to know how high school coaches conduct their training was outweighed by the coach’s desire to not have the reports released.

Standing Alleged

In its petition for a writ of mandate, Associated Chino Teachers (“ACT”) sought to establish standing to act in Wendling’s stead by declaring:

“As the employee organization serving as the exclusive representative of all classroom teachers in the District, ACT has an actual and substantial interest in protecting the privacy rights of classroom teachers and members such as DOE. ACT has an actual and substantial interest in preventing its members from suffering harm, including but not limited to emotional harm and injury to one’s reputation. Its interests and the interests of its members have been, are, and will continue to be adversely, and irreparably affected by the District’s failure to properly interpret and comply with the CPRA.”

Wendling continues to coach the boys’ volleyball team at Claremont High School.

The case is Associated Chino Teachers v. Chino Valley Unified School District, E068163.

Anthony P. De Marco and Jacquelyn Takeda Morenz of Atkinson, Andelson, Loya, Ruud & Romo represented the district. De Marco said Friday:

“On behalf of the District, I decline to comment.”

Michael R. Feinberg and Amy Moolin Cu of the mid-Wilshire law form of Schwartz, Steinsapir, Dohrmann & Sommers were attorneys for the teachers’ union. Feinberg did not respond to a request for comment.

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Comment:

Court of Appeal’s Decision Misconstrues CPRA

By JAMES W. EWERT

(The writer is general counsel for the California Newspaper Publishers Association.)

EWERT

First, the court misconstrues the waiver provision of the CPRA (Sec. 6254.5) and substitutes its own standard to wrongly conclude the District did not waive its ability to assert the personnel exemption. This, despite unambiguous statutory language in CA Gov. Code Sec. 6254.5 that says, “Notwithstanding any other law, if a state or local agency discloses a public record that is otherwise exempt from this chapter, to a member of the public, this disclosure shall constitute a waiver of the exemptions specified in Section 6254 or 6254.7, or other similar provisions of law,” the court concluded that because the district gave the letters to only the complainants this was not disclosure to a member of the public and therefore does not constitute a waiver. There is no California statutory or case authority that supports the idea that those who file complaints have superior rights of access to information that the rest of the public does not.

Secondly, the court when it applied the balancing test in the personnel exemption (CA Govt. Code Sec. 6254(c), framed the public interest in obtaining information in the complaints as relating only to determining how the district handled its investigation of the complaints and (after having read the disposition letters) concluded that the letters were not dispositive to help the public understand how the district handled the investigation. The court reasoned this is because the complaints did not contain charges of sexual harassment or threats of violence. Now, more than ever, where the potential verbal abuse of players by a coach is at the center of the public’s consciousness, adults and students in a community have a real and substantial interest in learning whether a high school volleyball coach has engaged in abusive behavior toward players on the team. Parents may not want their child exposed to such behavior. If parents are denied information about potentially abusive conduct, they are unable to use it to protect their child from it. Taking this opinion to its logical extent, a government employee’s privacy rights will always trump the public interest in finding out about an employee’s bad behavior.

That the court reached its conclusions knowing the teacher’s name was already made public and the issue was the subject of discussion during a school board meeting makes the court’s public interest/privacy balancing analysis even more puzzling.