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Settlements common in efforts to remove teachers
By SCOTT MARTINDALE and FERMIN LEAL



When female students at Garden Grove's Walton Intermediate School caught teacher Marc Cross' eye, he reportedly shared his thoughts about them – with his other students.

"Ooh, she's hot," Cross was accused of saying about a female student in April 2009.

"Oh yeah, she's fine," Cross was accused of telling another student the following month. "Why don't you get with her?"

About his own daughter, Cross was accused of saying she was "(expletive) fine" and that every male student would want to "do it" with her.

In October 2009, four months after raiding Cross' classroom computer and extracting about 40 graphic sexual images, the Garden Grove Unified School District initiated termination proceedings against the middle school teacher.

But Cross, then 50, disputed there was "sufficient evidence" to fire him, and in March 2010, was allowed to resign and received a $37,084 cash payout, including for his unused sick time.

The settlement offered to Cross – part of a 106-page personnel file released by the school district in response to a records request by The Orange County Register – may seem counterintuitive, but experts say it's a commonly used strategy to quickly and effectively put an end to teacher misconduct cases.

"When you go to trial, you're taking a chance the district loses," said attorney Margaret Merchat, general counsel for School & College Legal Services of California. "If a case drags on, you might have your principal and some of your staff pulled off-site to testify. These cases are very, very hard on staff – it takes an emotional toll, plus you have operational disruption at the school and enormous costs involved."

One in three Orange County teachers who left an Orange County district amid misconduct allegations over the past five years was allowed to settle, often receiving a cash payout and/or the opportunity to continue receiving district health benefits for a year or more, according to a Register analysis of Orange County teacher discipline records over the past five years.

The Register reviewed 36 cases in which county teachers voluntarily left or were forced from their jobs since 2007, including one case that is still pending. The personnel records revealed that the districts signed off on settlement agreements for at least 12 of them, often after a district governing board had already voted to fire the teachers.

"By no means do we want to reward bad behavior, but sometimes, offering them a settlement is the best alternative we have," Santa Ana Unified trustee Audrey Yamagata-Noji said. "When we have to decide between returning to the classroom a teacher who we believe is unfit or giving the teacher a payout to go away, we're likely going to choose the payout.

The biggest settlement payout reviewed by the Register was $68,595, three-quarters of San Juan Capistrano physical-education teacher Kirk Last’s annual salary, after he was accused of poor classroom management skills by a Commission on Professional Competence.

In a 2008 case, Last was accused of grabbing a disrespectful student by the sweatshirt to prevent him from entering a fitness room. Last told the commission that he used “slight force” to get the student out of line by using “two fingers” to take hold of the student's shirt, and that the two might have “scuffled a bit.”

The commisison determined Last was unfit to teach. Last challenged the commission's decision in a civil suit and was allowed to resign.

Settlements avoid state hearing

School districts often settle in cases where a teacher disputes the district's grounds for dismissal, even in cases where criminal charges have been filed, experts say.

The reason is that even after a district initiates termination proceedings against a teacher, that teacher still has the right to fight the accusation via a hearing before a three-member panel. During the hearing, which mimics a civil court trial, witnesses are typically called to testify and lawyers make their case before the panel, which consists of one district appointee, one appointee selected by the teacher and an independent administrative-law judge.

"There's no guarantee with the panel," Merchat said. "It's a hard situation where you have one of your peers making a decision about you. It's hard to get those people to see it from a purely judicial standpoint. And they obviously consult with their two panel members, which could tip the vote."

The panel's decision takes precedence over the school district's own termination decision, and the teacher can return to the classroom on a 2-1 panel vote.

State legislators introduced a bill earlier this year to eliminate the panel and give the district's governing board the final say, but the proposal was defeated after receiving fierce opposition from the state teachers union.

Merchat also said that when districts proceed to a hearing instead of settling a case, they run the risk of an unexpected problem with a key witness. Witnesses can become intimidated by the court-like feel of the hearing and might refuse to testify or change their story, she said.

"If one witness changes their story, there goes the case," Merchat said.

Naomi Perez, 36, a former teacher at Santa Ana's Saddleback High School, received a $10,000 settlement payout from the Santa Ana Unified School District in February 2010, less than four months after being criminally charged for having a sexual relationship with an underage student at the school and vandalizing his car after their relationship ended.

Four months after settling, Perez pleaded guilty and was ordered to serve a 150-day jail sentence and register as a sex offender.

No settlement needed in some cases

In some cases, the teacher's misconduct is so egregious that districts are able to push out the employee without offering a settlement. Also, some teachers will voluntarily resign after being confronted with misconduct allegations – some so quickly, the districts never know of their violations.

"Every case is different," said Chad Hammitt, Santa Ana Unified's assistant superintendent for personnel. "There are times when employees are arrested and resign immediately, and there are times employees are arrested and resign after being confronted with the arrest notification."

In cases where districts settle with teachers, some of the agreements contain nondisclosure clauses prohibiting the district from publicly discussing the matter or even acknowledging the accusations when contacted for future reference checks.

The settlement for Cross, the Garden Grove middle school teacher, stipulated that all reference check requests were to be referred to the school district's head of personnel, who was only allowed to confirm basic information about Cross – job title, dates employed, final salary and that he resigned.

Orange County Department of Education lawyer Ronald Wenkart said a non-disclosure clause is a safer approach than allowing a positive reference to be mistakenly issued by a principal or colleague who doesn't know any better. If a settlement was reached confidentially, even colleagues who know the teacher may not be aware of the accusations, Wenkart said.

"The assumption is the person doing the reference check would be able to read between the lines," Wenkart said. "If a teacher is not getting a positive recommendation, the person who is asking for the reference should understand: We're not recommending this person for employment."

Contact the writer: 714-796-7802 or smartindale@ocregister.com or Twitter: @MartindaleScott



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