Erwin's Scottsdale personnel file also Missing

Scottsdale Schools General Counsel confirms:

Erwin file missing

Stop me if you've heard this one before...but Barbara Erwin's personnel file is missing.

Not the one in St Charles Illinois. We already knew it went bye bye. Now comes confirmation that Erwin's Scottsdale Arizona file also mysteriously disappeared.

Now who on Earth would have...?

Who had the means?

Who had the motive?

Who had the opportunity?

Some citizens in St Charles, Illinois are - shall we say ...disgruntled.

Burned by years of feeling marginalized...
...hacked off by revelations of illegal back room deals that violated the Open Meetings Act
...and the Gaffney/Erwin memo that asked for even more than the contract allowed for Erwin
...and what smells to them like attempted fraud
...or possibly conspiracy to commit fraud
...an extraordinary gift of sick days, the kind of gift that threatened to undermine the state's teacher retirement system sufficiently that the Illinois legislature outlawed the practice the board was engaged in
...one that stands to cost the St Charles school district thousands of dollars
...Feeling like the state's attorney's response to willful Open Meetings Act violations fell woefully short
...Feeling stonewalled by state's attorney inaction on the Gaffney/Erwin memo
...wondering if Knipp, Gaffney, and others may be contributors to Barsanti's reelection campaign
...wondering if he could recognize a wrongdoing if it was shown to him
...They feel confused by the inaction, but emboldened...and are pressing their case

So, some more digging has been going on.

It had been rumored at KSN&C...and the Kane County Chronicle...that Erwin's Arizona file was also gone. We haven't heard anything from Allen Texas yet, but I suspect somebody will check for her file there as well.

One St Charles citizen sent KSN&C evidence of an email correspondence with Scottsdale Arizona School's General Counsel, Kim C. Clark:

Responding to an Open Records request, Ms. Clark wrote,

"I apologize for the delayed response. We have been unable to locate Ms. Erwin's file. We are contacting our outside attorney's office to see if they might have retained the file for some reason. We will keep you posted. Thank you for your patience."

After further searching Ms. Clark wrote again,

"After a diligent search of our records, and those of our former outside counsel, the District does not have Ms. Erwin's file. We will be sure to notify you, however, if it turns up.

The St Charles citizen pressed the issue a bit with more questions related to whether the district knew if Erwin was aware her file was missing, if a police report had been filed in Arizona and alerting Clark to the investigation in Illinois. A couple of weeks later Clark responded,

"Sorry for the delay in responding. The District's personnel files are maintained in a secure location at the District office. The District is required to maintain personnel files for three years, so it is quite possible that Ms. Erwin's file has been destroyed in the normal course of events. ... Most of the District's current leadership joined the District well after Ms. Erwin resigned and would have no interest in, or knowledge of her file. We continue to investigate, but at this point have uncovered no evidence that any employee or former employee improperly removed the file. Our former outside counsel is Mary Ellen Simonson at Lewis & Roca. I checked with her office on the off chance that they might have a copy of the file, but they did not. I hope this helps.

Clark's explanation that the file might possibly have been destroyed in the normal course of events was not an explanation of what did happen, so much as it was an absolution of the district, should someone claim Scottsdale had done something wrong - which no one is alleging to my knowledge.

Scottsdale attorney Christine Schild picked up on the story and pressed Clark for clarification...in her own inimitable style. Clark made it clear...they just don't know anything.

"Of course I did not personally supervise the destruction of the file. As I said, that could be what happened, but at this point, we have no definitive proof of what may have happened.We are not withholding any information. We just don't have any information to disclose."

In Illinois

Who had the means?
Who had the motive?
Who had the opportunity?

In Arizona

Who had the means?
Who had the motive?
Who had the opportunity?

In a related matter, An appellate court in Springfield has ruled that contracts of public officials are public record, no matter where they are stored...

...In May, the St. Charles school district said it no longer considered contracts of employees, including then-Superintendent Barbara Erwin, to be public documents. Citing a DuPage County circuit court ruling and a 3rd District appellate court ruling, the school district’s attorney said that, because contracts were kept in personnel files, they were not public information. Last week’s ruling appears to directly contradict that reasoning...

This from the Kane County Chronicle.

Hello from Scottsdale: Schild pulls no punches on Erwin grievances.

On Friday, Kentucky School News and Commentary posted an item related to the veracity of Barbara Erwin's application for the Commissioner's post in Kentucky.

The application called for candidates to mark the following item: Yes or No

"5. Have you ever been involved, are you currently involved, or do you anticipate involvement in litigation either as the plaintiff/complainant or defendant/respondent?"

Erwin marked NO.

But that doesn't square with information Kentucky School News and Commentary found. Erwin was a name defendant in Schild v. Erwin 2:04-cv-00910. This a motion hearing before Honorable James A Teilborg on 10/04/2004, at the U.S. District Court in Phoenix.

KSN&C posted a description of the proceedings from one of a handful of Arizona Republic articles; a description that didn't sit well with the plaintiff, Christine Schild. Her response is presented below:

Dear Dr. Day,

It’s unfortunate you chose to quote the Scottsdale Republic editorial board’s spin on the validity of my lawsuit. It is not accurate.

I went after Lewis & Roca and got skewered as a result. In May, 2003, I filed a bar complaint against Ms. Simonson that got some press locally and on the AP wire. Then, in April, 2004, I filed the lawsuit against Ms. Simonson & L&R which got a lot of local press and some AP coverage.

I have no beef against the firm per se, but I believe Dr. Erwin used one of their partners and an associate to “protect her” from negative comments that began surfacing about two years before I filed the lawsuit. Members of the public were already making FOIA requests for copies of the District’s legal bills six months or more before I ran for office.

I have attached a series of six .jpg documents that contain the relevant portion of Judge Teilborg’s ruling on the first amendment claims.

Essentially he held that the claims relating to the first amendment were legally, but not factually, sufficient.

He dismissed claims based on section 1985 (the Ku Klux Klan Act) and the section 1983 equal protection clause because the discriminator and the discriminatee cannot be members of the same class (i.e. while black vs. white is actionable, white vs. white is not).

The Judge concluded that one school board member could not violate the section 1985 or the equal protection rights of another school board member, because they are members of the same “protected class.” His ruling basically killed my claim against Karen Beckvar, because my strongest argument against her was “negligent failure to prevent a civil rights violation,” which is found in section 1985.

Although the Scottsdale Republic’s editorial board asserted I could not pony up the facts, my attorney felt fairly confident the amended complaint, which was prepared but never filed, would survive the second motion to dismiss for failure to state a claim against L&R (which was the weaker of the two claims because the attorneys’ involvement was much less than the District defendants).

Why did I dismiss the case instead of filing an amended complaint?

Judge Teilborg gave me an extension until after the November, 2004 general election to file the amended complaint. In my opinion, L&R was tired of the public embarrassment and therefore willing to stipulate to the extension on the idea that “if the election goes a certain way, the lawsuit might go away.”

In fact, the election went my way and the lawsuit went away. I was never in it for the money. It was an extreme measure I hoped would change the Board’s behavior. Dr. Erwin and the other school district defendants declined to sign a release and the cause of action against them was dismissed without prejudice. L&R signed a release and the claim against them was dismissed with prejudice.

In January, 2005, after Molly Holzer and Jennifer Petersen replaced Sandra Zapien-Ferrero and Shari Avianantos, I was elected president of the Board.

I remained the new Superintendent’s "controversial” board member, but that doesn’t change the fact that Dr. Erwin wanted to prevent me from disclosing information in a public forum (i.e. Board meetings) where they might get heard by the parents or reported by the press.

What did I want to talk about? It really didn’t matter as long as I opposed Dr. Erwin. I fed into the “negative chorus” that was singing an increasingly louder tune and I believe she wanted to pull the plug on the amplifier so to speak.

Although I have not researched the issue, I will opine that Dr. Erwin may or may not have improved test scores among non-English speaking students, but the Anglo students in our community all come from pretty respectable households with high expectations for post-college education. My little family unit is typical, with one medical doctor, one lawyer, one recent business school graduate, one University attendee to be, and one still in high school. These are the types of families that live in north Scottsdale. Most of us put a very high premium on education. If our kids don’t get it in public school, they go to tutors or private school.

Why did I dislike Dr. Erwin? That’s a complex answer, but here are some basic reasons:

• The teachers really hated her. We had sick outs, protests, red shirts, high turnover—you name it.
• A survey of district teacher-leaders taken shortly before Dr. Erwin left Scottsdale showed that less than 15% of staff members felt “respected” by the
  administration. The opposite number reported that morale was very poor. No doubt her consultants, including Carolyn Warner, were telling her to leave.
• The community was against her because she couldn’t pass ballot initiatives, there was too much “negative” press, and the taxpayers didn’t trust her any more.
• Although they would never say so out loud, the administrators hated her. Most of the good ones left in the 2003 buyout.
• The classified staff hated her. From what they told me, they really resented the fact that she exuded the opinion “peon” when she was in their presence.
• In my opinion, she lied constantly.

She has her supporters, even to this day. They are mostly administrators or current and former school board members. A limited number of parents still support her.

As far as Dr. Erwin’s side of the “story,” I have no doubt the blame will be laid at my feet. Perhaps she is right, but I’m still having coffee with my neighbors and she never did.

Best wishes,

Christine Schild
Chair,
Scottsdale Neighborhood Enhancement Commission
LAW OFFICE OF CHRISTINE SCHILD, P.C.
7418 E. Helm Drive
Scottsdale, AZ 85260

Wow.

Now, I won't pretend to know who's right or who's wrong in this case. I won't even pretend to fully understand the case. But it sure sounds like Barbara Erwin knew there was a case. Why did she mark otherwise on her application?

Ray & Associates suggests that "there's a story that goes with that." So what?

The application gives the applicant the opportunity (actually, it requires the applicant) to attach an explanation. So, if there's a story...let's hear it.

In any case, Barbara Erwin was personally a name defendant in Schild v. Erwin and she appears to have knowingly withheld that information from the Kentucky Board of Education.

Like most applications, the one for Commissioner contains a verification statement that warns candidates that "misrepresentation or omission" are a problem. Erwin signed that she understood that doing so "may be cause for my rejection from employment or may result in my subsequent dismissal if I am hired."

But Schild's letter raises the spectre of yet another problem. On that same Background Check and Information form (Item #2) also asked Erwin if she ever resigned under "pressure from your employer or left employment while charges against you or an investigation of your behavior was pending..." Schild v. Erwin was pending in U S District Court when Erwin left Scottsdale.

Well, that sounds like a big YES. But again, Barbara Erwin marked NO.