Is County Superintendent Candidate a Subject of a Politically Motivated Smear Campaign? – On Monday, the Vanguard was sent the police report by Woodland Record Editor Dino Gay, of a nearly 10-year-old case involving then-Woodland Community College counselor Jesse Ortiz, who is now a candidate for the Yolo County Superintendent of Schools.
A day later, an individual named “Garry Gallagher” sent a mass email to undisclosed recipients, stating, “I was sent this email last week and I am forwarding it to others. This is quite upsetting to me as a parent in this community. This is clearly inappropriate behavior for someone in his position and while on school campus. Some of you have endorsed this individual. Mr. Ortiz has sued the school district and lost twice yet no one has reported on the lewd act that he has done. When he didn’t get his way he then claimed it was racially based. “
The Yuba Appeal-Democrat on December 30, 2013, reported that an appeals court upheld a Yuba College ruling that the Community College did not violate the Brown Act when it considered disciplinary action against Ortiz, not for the incident, but the failure to fully cooperate with the investigation in 2005.
The court notes that the letter of reprimand was issued “for failing to cooperate fully with the administrative investigation.” It also notes, “sexual misconduct involving Ortiz could not be substantiated during the investigation.”
In its lead, the Appeal-Democrat wrote, “What may have been a case of mistaken identity sparked an eight-year legal battle between a counselor and the Yuba Community College District.”
The Vanguard was inclined to not pursue this matter, given the nearly 10 years that have passed since the incident, and given that there is no allegation that Mr. Ortiz did anything other than have consensual sexual contact in an inappropriate location – there is no evidence that this was coerced, forced, with a student or an employee, or has any other secondary accusations to it.
Those familiar with the case told the Vanguard that Ortiz was unjustly accused of an alleged incident for which no evidence implicating him or anyone else was ever produced.
They stated there was no evidence ever produced – no license plate, no description of the car, no identification or description of the other person allegedly involved, nothing ever produced, no evidence that anything happened at all.
The fact that he was chairing as Board President a Woodland School Board Trustee meeting the entire evening that was cited was not even considered. The fact that his wife testified he was home after the meeting was also not taken into consideration.
Given the lack of any tangible evidence tying him to this incident, he wanted the bogus incident to be discussed in a public forum so the lack of evidence and the false allegation against him could be heard; however, the district refused.
When he learned that the Board had discussed the incident in closed session he filed suit to protest the unwillingness of the administration to openly discuss the matter. Although the court did not rule in his favor, he believed that any attempt to shed the light of day on a false allegation against his character was justified.
A letter of reprimand was issued against him and placed in his file by a human resources officer. That letter was subsequently removed when a new administration determined that the lack of due process, false statement of “not cooperating” or of any evidence implicating or tying him to the incident made any letter in his personnel file improper and unfounded.
However, given the continued efforts to spread this campaign designed to harm Mr. Ortiz’ candidacy, we have looked into the matter as well as we can determine.
Critics allege that, while “sexual misconduct involving Ortiz could not be substantiated during the investigation, the records show that ‘Ortiz was not cooperative’ and he ‘did not provide a reasonable explanation’ and ‘could not reasonably account for his time’ for the two hours during which the alleged activity took place. The police report states, “Jesse Ortiz acted inappropriately by receiving oral sex while at the workplace and outdoors in the public view.” He was charged with Penal Code §647(a).
In the narrative, the officer described the incident on April 14, 2005, at 9:40 pm, “I walked over to the passenger’s side of the car and stood approximately two feet away from the passenger door, concerned for officer safety, activated my Streamlight Stinger flashlight.”
There he saw what he described as a black female adult, and said “I believed the female was performing oral sex on the driver, a Hispanic male adult, who I immediately recognized as Woodland Community College counselor Jesse Ortiz.”
He stated, “I contacted Ortiz, who had the driver’s side window partially rolled down. While looking at Ortiz I stated to the effect, “Hey Jesse, What’s going on?” Ortiz replied, “We’re just having some fun,” and spontaneously commented, “We’ll just be leaving.” Both occupants departed the campus without further incident.”
Five days later, Mr. Ortiz “stated that he had met with the Yuba Community College District’s Chief of Police (Chief Wilkinson) yesterday because of allegations made by Officer Pate regarding Ortiz’s behavior. Ortiz stated, “This morning when I sat down with the Chief, I asked that I wanted to meet with Ben. The Chief didn’t say no.” Ortiz denied acting inappropriately, saying “I didn’t do it Ben” and claimed that his wife and other unidentified persons could vouch that he was home at 9:00 p.m. on the day in question. Ortiz stated that he had been married 28 years and this situation had never happened to him before. Ortiz requested that both Chief Wilkinson and I meet with Ben so everybody could work this situation out together.”
According to the facts laid down by the court, Mr. Ortiz worked as a guidance counselor for the District since 1994. Mr. Ortiz spoke with the college chief of police and repeatedly denied he was the man in the car.
Both parties hired civil and criminal counsel to address the investigations and in early May 2005 Ortiz and his attorney met with the District’s human resources director and its general counsel. Later that month, Ortiz’s attorney wrote several letters to the District complaining about the propriety of the investigations and the District’s lack of response to Ortiz’s previous inquiries regarding the issue. Ortiz’s counsel accused the District of being uncooperative and of abusing Ortiz’s civil and due process rights. Ortiz also informed the District that he wanted to participate in any discussion regarding the matter pursuant to the Brown Act.
On June 15, 2005, the Board met in closed session to discuss the Ortiz matter without notice to Mr. Ortiz that “this matter would be discussed in closed session.”
The court wrote, “During the closed session, the District’s counsel briefed the Board very generally on the ongoing administrative investigation involving Ortiz and the potential for litigation from both Ortiz and the unknown female in the car. In an attempt to limit the District’s litigation exposure, the District’s counsel mentioned that he was considering recommending a letter of reprimand against Ortiz, although no definitive recommendation was made at that time and the Board was not asked to vote on and did not vote on any such measure against Ortiz.”
According to the meeting minutes, the Board did not take any action on any closed session items.
The court then wrote, “Nearly two months later, the District’s human resources director gave Ortiz a letter of reprimand for failing to cooperate fully with the administrative investigation. No Board approval or authority was necessary before the human resources director could issue the reprimand letter. According to the letter, sexual misconduct involving Ortiz could not be substantiated during the investigation.”
Mr. Ortiz would file a complaint against the District alleging numerous causes of action, including one for violating the Brown Act. The matter was tried at a bench trial.
The court would rule “that during the closed session the Board did not take any ‘action’ as that term is defined in the Brown Act. The court separately found that the Board did not consider any disciplinary action against Ortiz at the closed session. Finally, the court found the District properly agendized the matter under the potential litigation exception to the open meeting laws found in section 54956.9.”
The appellate court’s ruling basically upheld this decision, which had bearing again on whether the board had acted properly in giving a letter of reprimand, rather than at the core issue of the original investigation. As the court noted, the letter of reprimand was issued “for failing to cooperate fully with the administrative investigation.” It also notes that “sexual misconduct involving Ortiz could not be substantiated during the investigation.”
—David M. Greenwald reporting