Analysis: District Releases More Comprehensive Data on Complaint Investigations

Peterson-resignsExamination of Documents Show Law Firm Associated with School District’s Attorney Has Investigated Three Complaints Per School Year – Davis residents and Vanguard readers were stunned to learn that an investigation into the cutting of a school board member’s daughter from the Davis High volleyball team ended up consuming nearly 100 hours of time and costing the district $22,000.

Earlier this week, the Vanguard learned that in 2010, the district had spent about $10,000 investigating a complaint that Nancy Peterson, at that time an assistant volleyball coach, was bullying the daughter of former head volleyball coach Leigh Whitmire Choate.

That consumed 48.55 hours and cost $10,679.  The district would ultimately rule that Nancy Peterson did not bully or harass Ms. Choate’s daughter, and ruled in favor of Nancy Peterson.   According to Ms. Choate, the investigator was the same Alexander Sperry who four years later would conduct the investigation of Julie Crawford.

There was immediate community outcry into the perceived wastefulness of the Crawford investigation at a time when the district is not in great footing fiscally.  The Vanguard and apparently other publications have requested a more comprehensive accounting as to the number of internal and external investigations, and the overall cost to the district.

The Vanguard would request a snapshot from 2010 to 2014, which encompassed both of the two known investigations.

In a memo dated April 11, the district wrote that they have “recently received several requests for public records relating to complaints concerning district employees.”  They note, “In addition to providing the requested public information the district believes that an outline of the process by which we manage complaints concerning district employees is important.”

“First and foremost, the district has a duty to reasonably investigate all complaints,” they write.  “We take this duty seriously and take proactive steps to resolve the complaint at the lowest level possible. The Board has given staff the direction to bring options for alternative conflict resolution in the goal of strengthening the ability to resolve conflicts at a lower level.”

They note, “Complaints concerning employees may be filed by students (of which there are more than 8,500), parents (more than 12,000), other district employees (more than 1,000), and community members. When the district office receives a complaint concerning an employee, either the Assistant Superintendent of Human Resources and/or the Director of Student Services reviews the complaint.”

One of the big questions that has arisen is who determines how the complaints are handled.  The district answers that question here: “These administrators determine whether to investigate the matter internally or externally.”

That suggests that either the Assistance Superintendent of Human Resources or the Director of Student Services makes the determination.

“That determination is based on several criteria, which include, but are not limited to: the level of the complaint’s complexity; availability and expertise of staff to conduct a timely and thorough investigation; the potential impact(s) on the employee and/or complainant; potential litigation.”

The district writes, “It is the ultimate goal of the Davis Joint Unified School District to ensure academic excellence and fiscal responsibility. The complaint and investigation processes ensure that we maintain the highest standards for our employees. District staff must employ their professional judgment in order to ensure that high standards are maintained, the district complies with its legal and ethical duties while keeping costs as low as possible.”

They note that of the 70 complaints filed at the district office from July 1, 2010 to February 28, 2014, “fifty-nine (59) were investigated and resolved by the Assistant Superintendent of Human Resources and/or the Director of Student Services. Eleven (11) complaints were referred to outside investigators.”

DJUSD-investigations-2010-2014Over the last nearly four school years, the district has investigated 11 externally, using 1148 hours and costing the district $252,405.  That comes to an average of 3 per year conducted externally and 15 more per year internally, at an average annual hourly usage of 287 hours and an average cost of $63,101.

Interestingly enough, the Crawford investigation is right at the average external investigation cost, which was $22,946.

DJUSD-investigations-2010-2014-2A few points to note from this data.  First, we are limited really to this summary data, which makes further analysis difficult.  We do not know the nature of the other complaints that rose to the level of external investigations.  Clearly, any investigation that is handled in house is less significant in that it does not trigger additional costs.

Second, while the number of external investigations is fairly consistent at three (in all but one year), the costs vary wildly from $37,514 for the two investigations handled in 2012-13 to $82,408 for the three in 2011-2012.

Third, there is no clear trend.  2011-2012 was thus far the most costly year, but it is worth noting that the period for 2013-14 ended on February 28, meaning that the district had another four months left in the year with already three complaints and $74,356 spent.

One of the questions that arises is how many of these external complaints triggered appeals.  If you recall, the school board does not learn about complaints unless the findings get appealed to them.

If that is the case, there is at least the potential question about oversight by the school board.

There is further troubling information that arises as well.

DJUSD-investigations-2010-2014-3

One of the key questions that has not really been answered is how the district selects the investigator.  What we learn is that the district has essentially used two law firms: Atkinson, Andelson, Loya, Rudd & Romo (AALRR); and Van Dermyden Allison/Maddux (VM).

What makes it more intriguing is that the School District’s Attorney Eve Peek Fichtner has actually been employed by both firms.  Ms. Fichtner was Senior Counsel at AALRR from 2000 until September 2013 when she went to Van Dermyden as a Partner in October 2013.

Coincidence?  The pattern suggests that the district simply used their attorney’s firm to conduct the investigation.

Is that a conflict of interest?  Not necessarily.  But the whole set up suggests perhaps something else going on here.  As we know from the most recent investigation, Eve Fichtner herself was one of three attorneys involved in the report.

We also know from the release by the school district that one of the criteria for launching an external investigation is potential litigation.

The problem therefore becomes quite evident.  The district’s chief interest here is in reducing the potential for litigation.  They hire firms associated with an attorney, Eve Fichtner, with whom they contract for the same purpose – reducing the potential for litigation.

That means that anyone hired to investigate is potentially hired not to uncover the truth but to reduce the district’s exposure for litigation.

That calls into question the veracity of a report that, as we know, in most possible ways attempted to split the baby.

The finding was that ”more likely than not, Coach Crawford’s decision to cut [Vanguard redaction] Peterson from the varsity volleyball team was influenced, at least in part, by Coach Crawford’s feelings about Nancy Peterson” but also added “at the same time (the investigator) does not find that coach Crawford acted with ‘willful mal-intent’ to harm (the Petersons’ daughter). … Rather, through no fault of her own, (the daughter) simply became a casualty of the ongoing ‘volleyball drama’ involving coach Crawford and Nancy Peterson.”

The school board itself practiced the same, first by a 3-1 vote upholding the findings by the investigator and then six days later, rehiring Julie Crawford for the spring.

Putting it altogether, we have to question whether the system as set up now produces accurate investigative findings and whether the appropriate safeguards are in place for the school board to oversee the process.  We have previously expressed concern that the accused has not had the right to review the investigative findings against him or her, prior to the appeal.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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22 Comments

  1. PhilColeman

    There are so many flaws with the current process that it befuddles the mind on where to start.

    Cost was the igniting factor in this recent revelation on how to do everything wrong–let’s begin there. Don’t pay $220/hr for an outside investigator. And there is no need to hire a law firm to do an investigation with their bloated billing hours. There are a number of highly qualified and licensed private investigators who could do a better job, faster, and for less cost. Better yet, join forces with adjacent school districts and publish an RFP for an investigative firm to bid on shared services. Much cheaper. If you need a legal review of the preliminary findings, hire a suitable attorney for that specific purpose. Much cheaper, and quicker. There are literally thousands of very capable but starving attorneys out there wanting business.

    A parallel advantage with this notion. The fear of litigation and the quest for facts and truth often operate at cross purposes. Never hire the law firm that is primarily charged with protecting the District from lawsuits. That’s an inherent conflict of interest. Besides, the Board’s attorney should never be suspected of being being a “rainmaker” or potentially being credited by her firm for billable hours. That is a blatant conflict of interest. How can the current (and past) Board members be blind to something so obvious?

    To direct the Board with oversight responsibility on how complaints are parceled to outside investigators is fine. But under no circumstances should the Board retain the authority to hear appeals. Doing both only creates yet another inherent conflict of interest.

    Do what the City does. Appoint a blue-ribbon panel of citizens, school reps, and union reps to hear appeals, and then make recommendation to the Board for final ruling. Better yet, give final administrative authority on complaints where it really belongs, the Superintendent.

    That’s about ten percent of what is needed to fix this disaster.

    1. Robert Canning

      So if we adopt Phil’s system with an appointed (who appoints?) blue-ribbon panel that makes recommendation to the Board, aren’t we 1) adding another layer to the system; and 2) still leaving ultimate decision-making authority with the Board? This argument is, of course, often heard with police departments and other public agencies. The board has a fiduciary responsibility to the district and has to be the ultimate authority in these matters – until election time.

      Phil makes the assertion that: “There are a number of highly qualified and licensed private investigators who could do a better job, faster, and for less cost.” Does anyone know what the typical rate is for an investigator? What are the qualifications for such a person? And $220/hour doesn’t sound like much when it comes to legal billing practices. As a psychologist who can perform forensic reports for the courts (which I have done in the past) I would typically charge $250-300 per hour plus expenses. When I billed a law firm for these hourly fees, they didn’t blink an eye. $220 simply doesn’t seem over the top.

      The idea of joint agreements with other districts has some appeal. And how many law firms specialize (or have attorneys who specialize) in school district administrative law? Are there lots of choices out there? I’m not sure I buy the notion that the current process is so awful.

        1. Robert Canning

          Two points in response:

          1) How many complaints and appeals do we never hear about and are essentially completed without any public angst? I believe the recent public drama was an outlier and one should not judge the adequacy of the process in place based on one data point.

          2) Hindsight bias really distorts our vision of events. In this particular case, given the visibility and publicity this case has engendered, I believe it is very, very difficult to put aside the outcome for a moment and judge the process that occurred prior to the endpoint. Again, and it’s my opinion only, I think that much of the criticism of the Board is due to the outcome, not the complaint/appeals process. This process is no different than many public entities use – and sometimes it ends up in a “cluster.”

    2. Robin W.

      Completely agree with Phil’s first 3 paragraphs. Giving a complaint to your lawyers to review is not an independent investigation. It is an analysis of your exposure and/or how to reduce that exposure. You need a third party for an independent investigation — assuming an outside investigation is warranted, which should almost never be the case.

      Disagree with Phil’s points re final appeal. Final decision when something rises to that level is School Board ‘s duty. I am not sure if such delegation comports with state law but, even if it does, I don’t believe the voters want a School Board that does nothing except hire a Superintendent and delegate to him/her.

  2. Tia Will

    “That means that anyone hired to investigate is potentially hired not to uncover the truth but to reduce the district’s exposure for litigation.”

    And to broaden this concept just a little, in our adversarial system, would it not also be the case that anytime anyone hires anyone to investigate or represent them in the legal system they are doing so to reduce their own risk.

    So how would the district hiring a completely unaffiliated firm be any different? Would it not be understood by the firm being hired that their principal job was to reduce the risk of the district?

    To me, this is not an indictment of which law firm the district chose to use, but of a system that is based on each side of a dispute’s ability to hire professionals, not necessarily to uncover the truth, but to represent their best interest and “lower their risk”. In other words, which side of a dispute has the ability to enlist or hire the “biggest guns” legally speaking.

    To me, this makes it absolutely clear that you are accurate in one regard. “we have to question whether the system as set up now produces accurate investigative findings and whether the appropriate safeguards are in place.” I question this for the entire integrity of our adversarial approach to legal and “quasi legal ” disputes.

  3. Frankly

    The number of complaints investigation nor the cost of the investigations are not a surprise to me. It is just one of many things wrong with the current system.

    In the private non-unionized business world, investigations are carried out by certified HR professionals that are paid $30-$35 per hour.

      1. Frankly

        HR implements best-practices per advice from labor law attorneys. The profession of HR is specifically to perform as the middle layer to mitigate and resolve conflicts between parties.

        Attorneys should only be used when the conflict is severe or when there are sketchy new circumstances not previously covered in HR policy and procedure. However, when the attorney is used, the effort should include updating the HR policy and procedure so that the next similar occurrence does not again require an expensive attorney.

        This argument about conflict of interest is quite ridiculous since it always exists. For example, Governor Christy hires an outside law firm to investigate bridge-gate and the report exonerates him and the left screams that the report was garbage because the law firm was selected by Governor Christy. Outside, inside… it really does no matter as long as the work is done with integrity. HR people tend to be the most rules-focused and rules-bound of any profession . In fact, as a manager I have frequently tangled with them because I disliked some of the rules and felt they were overruling common sense.

    1. Tia Will

      ” investigations are carried out by certified HR professionals that are paid $30-$35 per hour.”

      Or for complaints or possible infractions that fall below the “investigative” level, by the direct superior to the individual involved.

      And such inspections are not subject to public oversight of the outcomes, either by direct review of the findings of the investigations or by being able to vote out at the next election those public officials of whose actions they do not approve.

      These are just two examples of differences between the public and private systems that do not make direct comparisons very useful.

  4. wdf1

    I also don’t see where a private business has as high a threshold for public disclosure, transparency, and accountability as one funded by tax dollars.

    1. Frankly

      Think about that. Accountability? Yeah, right. So, why then is the expense of all of these investigations such a surprise?

      There is much less accountability in the public sector… because nobody watches it. But there is a greater demand that the hypersensitive get their pound of flesh by punishing the private sector. The private sector is much more compliant these days thanks to bureaucrats and politicians appeasing their insecure but loud and demanding constituents. After passing one new piece of punitive legislation after another, these bureaucrats and politicians go off and make their own self-servicing rules to live by… and then they don’t even follow those.

      With this topic there is a correlation to firefighting. Just like for employee protection, the construction codes and product safety regulations have exploded over the years to include copious new requirements to reduce the risk of house fires. Now it is time to exploit the fruits of these endless piles of regulations and drop the spending for risk mitigation on the public side. We need fewer firefighters and fewer fire stations. And we need fewer investigations for what should be simple HR matters following all those rules that the hyper-sensitive left have forced on the rest of us.

      Note to all government “business”… just live by the same damn rules you force on the rest of us.

      1. hpierce

        WDF named three things: accountability, public disclosure, and transparency. You attacked ‘accountability’ as being different between the public sector and the private, where the public sector is maybe too lax. Have to assume that Lehman, PG&E, Enron, GM, and other private enterprises are your “model” of how government should be, related to honesty about pensions, health care expectations, compensation, etc. Hmmmmm.

        1. Frankly

          hpierce, really? You mention four private businesses held completely accountable for their acts. This even after all the regulations forcing disclosure of their every move. Transparency? You mean like Benghazi, the IRS scandal and Obamacare? Or maybe Davis’s finances? Give me a break. There is no one watching the crooks in the public sector. But at least the crooks in the public sector watch the crooks in the private sector.

          1. wdf1

            There is no one watching the crooks in the public sector.

            Please tell me how this applies to DJUSD? After that’s the topic of blog article.

  5. wdf1

    Frankly: Think about that. Accountability? Yeah, right. So, why then is the expense of all of these investigations such a surprise?

    We know about this because David Greenwald and the Davis Enterprise asked for information surrounding these expenses. The private sector would usually impose non-disclosure clauses.

    There is much less accountability in the public sector… because nobody watches it.

    It sure doesn’t seem that way with DJUSD here in Davis. Do you want to argue that no one is watching our local schools? Please explain.

  6. Mr. Toad

    Two of the investigations involved the Peterson’s. I wonder if it is unusual for one family to be on both sides of this process first having a complaint filed against them by a coach that cost $10,000 and then a few years later filing a complaint against a coach that cost the district $30,000.

    I wonder what was the nature of the first complaint? We know the second was for retaliation I wonder if we can get any information about the first complaint.

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