Lawsuit Update: Responding to the Superintendent's Bad Faith
We wanted to provide an update in our struggle to get Superintendent Jorge Aguilar and the School Board to honor their contract that was signed and ratified over one year ago--and to fix the self-inflicted budget fiasco by curbing bureaucratic bloat.
As we reported on the Friday before break (November 16), the District is trying to go to court to prevent us from enforcing our contract through arbitration. In short, the Superintendent is not only backtracking from his agreement on the new salary schedule, but now he's backtracking on his commitment to arbitrate the dispute and has taken the extraordinary act of suing to try to stop us from arbitrating.
Even more importantly, by going to court the District is delaying getting the matter resolved. Of course, the quickest path would be for the Superintendent simply to honor his agreement. But since he was unwilling to do that, we could have already had an arbitrator's decision that was final and binding on both parties. By going to court, the Superintendent is merely trying to delay the inevitable. The court has already informed us that no action will occur until well after a case management conference with the judge on May 23, 2019--six months from now. And a hearing will occur months after that.
In the meantime, we will be exploring all legal options to force the District to honor the agreement in a timely way.
How we got here deserves a more complete explanation.
Background:
On November 5, 2017, Sac City Superintendent Jorge Aguilar signed an agreement with SCTA brokered by Mayor Darrell Steinberg to resolve our contract dispute and to avoid a strike that was scheduled to commence three days later.
You can view the agreement here.
In that agreement, Mr. Aguilar agreed to the "Union's proposed structure," to revise the salary schedule. At Mr. Aguilar's request, SCTA provided an explanation of the revised salary schedule and how to implement it to share with the School Board--BEFORE the school board unanimously approved the contract.
You can view the explanation here.
However, this past spring, when it came time to implement the "Union's proposed structure," the Superintendent backtracked on the agreement.
Since then, Mr. Aguilar delayed meeting to discuss the implementation and now, despite his personal agreement to move the dispute to arbitration, avoiding going to arbitration.
After a mutually-agreed upon arbitrator was selected in September, the arbitrator suggested an expedited process that would allow the matter to be heard quickly, particularly since there were not many witnesses on either side. An expedited process would also mean that a decision would be rendered within days of the hearing.
We immediately agreed to an expedited process. The District refused.
The arbitrator then offered dates for January 7, February 19, 20, 27, 28, and March 1. We accepted all those dates. On November 9, when the District's response was due, the District's attorney wrote to the arbitrator:
"I need a few additional days to respond to this request in order to coordinate calendars and move items around. May I have until next week to respond to the offered dates?
Thank you."
The District's outside attorney gave no indication that her law firm was preparing to file suit in Sacramento Superior Court one week later to avoid arbitration.
The Lawsuit:
The lawsuit appears to make the following argument: 1) Even though there is a contract; 2) a dispute about the contract is subject to the grievance/arbitration procedure; 3) the Superintendent agreed to arbitrate his refusal to implement the salary schedule 4) but # 2 , doesn't apply
because
we have a disagreement about the implementation of the salary schedule, despite there being a contract with an arbitration clause. To say it is a circular argument is an understatement.
Ironically, as the documents linked above make clear, we don't believe we have a different understanding of what the Superintendent agreed to, he is just shamelessly trying to backtrack out of the agreement, and his subsequent agreement to arbitrate the disagreement.
Before proceeding to arbitration in September, we notified Mr. Aguilar. He responded:
"Based on your message, we will prepare accordingly for arbitration."
Because of this contradiction and in response to the lawsuit, we emailed him on November 19, 2018:
"The District’s course of action is all the more troubling given that it was entirely unexpected. You personally agreed to the contract settlement, you also personally agreed to arbitrate this matter, and the Parties have been working for some time to first select an arbitrator and then select a hearing date. At no time during this process did anyone at the District even suggest that the matter was not arbitrable (as it decidedly is).
The District’s decision to turn its back on the Parties’ contract and its arbitration provision, and to initiate expensive and wholly unnecessary court litigation in a vain attempt to avoid a hearing before Arbitrator Perea does considerable—and possibly irreversible—damage to the Parties’ bargaining relationship. It also is an entirely unwarranted waste of District resources, and at a time when we would have thought the District would have been more sensitive to financial waste. The Lozano Smith firm will be the only winner should the District insist on litigating this matter."
In a bizarre letter dated November 20, 2018, Mr. Aguilar responded: "the District is not refusing to arbitrate," the District is just going to court to determine whether the issue is arbitrable, and therefore "to avoid wasting resources arbitrating a grievance that may not be arbitrable." A complete copy of his response
can be viewed here
.
The twisted logic simply sidesteps two important issues: 1) an arbitrator can decide whether an issue is properly before him or her, and 2) it is substantially less expensive and much quicker to arbitrate the dispute.
The District has already spent more money filing the lawsuit than an arbitration would cost.
In addition, if the District loses the lawsuit (which we believe is highly likely) it
will have to pay our attorney fees
, as we have notified the Superintendent. Finally, if the District had agreed to the arbitrator's suggestion to hear the matter on an expedited basis,
we would already have a decision.
So What's Really Going On?
This is Mr. Aguilar's first time ever leading a school district, while he continues to be employed by UC Merced.
For the first time in Sac City under his leadership, the District submitted a budget that has been rejected by SCOE. After that rejection in September, the District submitted a second budget that rejected again by SCOE. We understand that it is the first time SCOE has ever rejected a school district's budget. One major factor in the rejection was the District's willingness to spend limited dollars on expenditures without specified funding sources, like the $6 million vacation buyout last year for administrators and others. Mr. Aguilar also promised a hiring freeze at the Serna Center while continue to add positions, including his appointment (without posting or an interview panel) of another Area Instructional Superintendent and others (
click here
).
At the same time, Mr. Aguilar's failure to implement recommendations from a Special Education Audit conducted by the Council of Great City Schools in May 2016 prompted the mass resignation of the District's Community Action Council. Although Mr. Aguilar inherited the audit, for more than one year he ignored calls from SCTA, parents and others to move more intensely to address special education issues. We have recently learned
(
click here
)
that the District has been cited by the California Department of Education for its failure to respond to several recommendations contained in the audit. Mr. Aguilar made no effort to discuss these developments with SCTA which only came to light as a result of an SCTA information request after the District was forced to halt another unlawful top-down initiative.
Similarly, Sac City has been roundly criticized for its high suspension rates, again another problem Mr. Aguilar inherited, but has dragged his feet to address. Rather than act decisively to address disciplinary issues in the District, particularly the implementation of a bottom-up restorative practices culture, Mr. Aguilar has rejected a proposal jointly developed by SCTA and the Black Parallel School Board, and which incorporated several suggestions personally made by Mr. Aguilar. You can view our response to Mr. Aguilar's rejection of our joint proposal
here
.
After Mr. Aguilar was forced to delay his attempt to unilaterally implement a CORE sponsored "District Improvement Team," we learned
(
click here
)
that it was part of the District's response for failing to show the necessary improvements in its LCAP Dashboard. As a result of these deficiencies, the District is now in required to receive "Differentiated Assistance," in order to achieve the necessary improvements. Mr. Aguilar has made no effort to include SCTA in working together in defining solutions.
Mr. Aguilar has also been challenged for his failure to move forward on implementing an improved music and arts program in the District, after he promised in November 2017 to $4.6 million on such programs.
Mr. Aguilar's refusal to cooperate with SCTA has led the California Public Employee Relations Board to issue two new complaints (
here
and
here
)
against the District for failing to bargain in good faith and failing to provide information. Just like the lawsuit, the big winner is the District's outside law firms which appear to continue to advise the District to continue to litigate rather than settle. This same mentality, which has continued under Mr. Aguilar's leadership, allowed outside attorneys to rack up an estimated $1 million in legal fees (plus an additional $668,000 it had to pay to our attorneys,
click here
) AFTER the District lost a lawsuit to reinstate a teacher, where the only issue that was in dispute were the attorney fees.
At the same time, despite repeated SCTA requests, Mr. Aguilar has refused to empower a District team to meet with SCTA and the California Education Coalition for Health Care Reform in an effort to reduce healthcare costs, with the savings being used to reduce class sizes and increase other professional support staff. See David Fisher's
letter to Mr. Aguilar here.
Administrator's are increasingly vocal at the dysfunction a the Serna Center and the absence of experienced, focused, and decisive leadership. Many feel that Chiefs and Department Directors are not empowered to make basic decisions, and getting a decision from the top takes forever. Phone calls and emails go unanswered and the most mundane decisions languish for months.
Then there's his refusal to honor his agreements on the salary schedule and going to arbitration.
Following our settlement one year ago, we thought we were on a path towards a much more constructive relationship with our new Superintendent and the District generally. It was hard to imagine a more destructive act than refusing to honor a signed agreement--and then Mr. Aguilar authorized the frivolous lawsuit.
Fortunately, as we demonstrated last November, we have great power when we are unified.
And now it's time to demonstrate once again our unity.
What Can We Do About It?
And after you have signed it, share the link with friends and family and encourage them to sign it as well.
Next, the SCTA Executive Board and Rep Council are developing a comprehensive plan of action to ensure that Superintendent honors our contract.
Last November, we demonstrated what can be accomplished when we stand together. It's time to do that again!
