TRUSTEE, HEAL THYSELF:
THE UNRULY ADVOCATE’S GUIDE TO UNDERSTANDING LIBEL

For the first time in the one year history of unrulyrus.com, the website’s existence was publicly acknowledged by an East Side Union High School District Trustee during the final moments of the June 16th Board Meeting.

We were not praised for all of our long hours, community service, and investigative work, however.

Surprised? You shouldn’t be. When board member Craig Mann called for a slander or libel suit against an ESTA member for a published letter in the teacher’s union newsletter “Panorama” (see this month’s related story “Casting Stones with the Self-Righteous”), his board colleague Patricia Martinez-Roach chimed in, saying that both the Panorama and “that unruly website” were really offensive. She demanded that the district start an investigation to identify the culprits behind the website. Board President J. Manuel Herrera dissented, noting that the district had limited resources and politely suggesting that the members of the board should accentuate the positive instead of the negative.

Team Unruly appreciates Herrera’s wisdom in this matter. Publicly, he politely reminded his colleagues of the appropriate professional response a politician should take when dealing with critics. Privately, he undoubtedly realizes how slippery a libel investigation slope can be.

Martinez-Roach would be surprised to learn that The Unruly Advocate would welcome a libel investigation. Libel, by definition, is publishing false and malicious statements in order to damage somebody’s reputation. The Unruly Advocate has taken its share of liberties in reporting information and publishing statements. Some might see that as malicious, others as satiric. For example, each chapter in our current series, the Unauthorized Biography of Esperanza Zendejas, takes a little creative license using parody and metaphor. The title of the first installment, “The Lame Cactus,” was a pun on Zendejas’ first novel, The Tame Cactus. We used the cactus as a metaphor for the superintendent due to the geography of Indio, California and Brownsville, Texas. The upcoming second installment makes a pun of her second novel’s title, Infallibility (our piece: “Indianapolis Fallibility”) and we metaphorically compare her to a tornado. Then there are the pages of “Bon Gaffes,” some of the old links prior to the webzine format, lots of frightening skeletons in the East Side board of trustee’s closets, and our growing letters page, all of which have raised many an unruly reader’s eyebrows. Speaking of eyebrows, we can’t leave out The Kiko Chronicles, our tribute to the superintendent’s ventriloquism dummy. Those offended by this website, especially the ridiculous public figure targets of our ridicule, would definitely find The Unruly Advocate malicious. Public figures tend to fear any negative press that might tarnish their reputation. But lawyers know a libel charge is much harder to pursue when public figures are involved.

The operative term in the legal definition of libel is “false”. That’s why Team Unruly would welcome a libel inquiry: the Board of Trustees would have the burden of proof to show we’ve knowingly published false information. How quick those incensed faces will sour when they discover everything we’ve published is true. The cooler heads on the board know it. They are far more rational in matters of perception than their reactionary colleagues.

The other burden to prove in a libel case is the damage to the plaintiff’s reputation. Unrulyrus.com began as clearinghouse of information with the primary purpose of preventing Craig Mann and Juanita Ramirez from getting reelected in the November 2004 election. Mann was reelected, and he likes to believe that his reelection was a referendum on Zendejas’ performance and his reform efforts, as shown in this excerpt from an Evergreen Times article:

“However, on November 2nd, Mann said district constituents spoke and sent a strong sign of support of the educational reform and fiscal accountability agenda led by the board of trustees and administered by Zendejas. Mann called her an ‘excellent and reform-minded superintendent’.” (read the entire article here: )

After her first controversial year in office, Zendejas was given a one-year contract extension. In the past six months she’s traveled the country as a paid speaker and has made a few noteworthy appearances on local media, such as Damian Trujillo’s “Communidad del Valle” and KQED’s “Forum.” It’s pretty hard to make the case that her career has suffered because of The Unruly Advocate. If she does eventually get her contract bought out, we can think of 965 other justifiable reasons why.

Getting mad at what your critics report about you is easy. Reflecting on what you might have done to draw their ire—and making an effort to appropriately address those concerns—is difficult. Rather than casting aspersions, the offended parties should be doing a little soul searching in an effort to understand why anyone would put the time and energy into this website. Unrulyrus.com did not start because a group of people thought it might be fun to lambast some minor elected officials and k-12 bureaucrats. The people involved are simply tired of the deceit, malfeasance, and thuggery coming out of 830 North Capitol Ave. Trustees using district funds for personal expenditures. A superintendent who habitually belittles her subordinates. A former trustee who once tried to run over the brother of one of her board colleagues with her car. Shamelessly escorting the former deputy superintendent from the district office after 30 years of dedicated service. And let’s not forget the quid pro quo nepotism. There are so many examples of egregious backroom shenanigans you’d think a Chicago mayor was running the district.

The East Side’s trustees do not really fear libel. They fear exposure. Since Zendejas’ arrival the East Side community has witnessed an unprecedented attempt to spin self-promotional information to the media. Zendejas and her board allies make a weekly, and sometimes daily, habit of contacting local reporters. The stories that come out, especially those gracing the editorial pages of the San Jose Mercury News, characterize the superintendent as a “bold and tough reformer” who is unafraid to stand up to the anti-reform minded, mean ol’ teachers union. During last year’s election we started writing editorials to challenge the guano dripping from San Jose Mercury editor John Fensterwald’s pen. We dubbed him the information minister and had fun pointing out his endless list of contradictions. We moved our fifth column website into the fourth estate, however, when the Mercury News and the broadcast media failed to accurately cover the judicial ruling to make an auditor’s report concerning Craig Mann’s credit card spending records public. Zendejas and Mann suppressed the report when it came out that past spring, and a newly retired district official, Doug Emerson, showed up to the press conference to confirm. Nobody in the media asked that hard question, and the Mercury News failed to even mention it (read the article here: )

The Mercury News is first and foremost a business. They cannot spend all of their time focusing on the scandals and stories developing in the East Side. While their editorial board has egregiously dedicated more time to East Side than any other district in Santa Clara County this year, the beat reporters are busy covering any number of local stories. They have deadlines and a word limit due to the size of the car or mattress ad crowding the page. Their journalists fail to adequately research stories given these time conditions (except Jon Fortt. He was great). And we do not have to remind savvy readers that American journalists are more interested in removed feeding tubes, Michael Jackson’s court appearances, and runaway brides than local school politics. Team Unruly didn’t like the news we were getting, so we went out and made our own.

Though the monthly opining resembles a blog, we consider the Unruly Advocate a webzine. And its readership is soaring. Since January, the website averages over 500 hits a month. But not only is our readership growing, so is Team Unruly. What began with a few teachers and community members at a couple of schools has evolved into a network of correspondents and readers from throughout the district. We all share the same goals: more balance from the local newspaper and integrity restored to the district office that governs the schools within this community.

Trustee Roach would be surprised to discover that we do adhere to journalistic standards. We only publish what we can verify from a number of sources. Most of the time, we just dig up what we find on Google, make our commentary, and back up our statements with links to our sources. We also make sure to maintain our focus on the public figures involved in these scandals. And we stay away from stories about students. That is why, to the dismay of our EVHS readership, we have not published stories about a certain board member’s parenting. It’s not the student’s fault if a parent is a public figure.

Another point that should worry the trustees: three times as many stories have not made it to publication that could have.

It’s interesting to note that the board member who mentioned us publicly is one of three up for reelection in 17 months. That’s why she’s clamoring for a libel suit. The truth of the matter is we would love to disband the site. Doing so would mean our mission to restore trust, collegiality, and competence to ESUHSD governance has been met. Since we do not foresee that happening anytime soon, we offer the following suggestions to our bevy of board critics.

1. STOP USING THE MERCURY NEWS TO ATTACK YOUR EMPLOYEES!

There have been nearly 20 editorials this past school year dedicated to ESUHSD issues. Many of them have demonized the teachers union or vilified former superintendent Joe Coto to sanctify the performance of Zendejas and the board of trustees. Most of the other school districts in the county have only graced the op-ed pages once or twice. Quick! How many unruly readers know the class size ratio in Gilroy Unified? Los Altos Hills? Fremont Union? Are the benefits generous in Santa Clara Unified? You can’t answer those questions if you read the Mercury News op-ed page. But odds are daily readers unfamiliar with the district are convinced that the East Side’s class size is too low and their benefits too generous.

But the problem is much deeper than the repetition of false claims. The Mercury News has lately had a peculiar habit of printing contract negotiation information before any of the employees have a chance to receive an update from union officials. In other words, someone from the district office is leaking this information to the Mercury News. Is it illegal? Technically no. Is it an example of bad faith collective bargaining? Yes.

Need proof? Let’s look at the most recent example. On June 16th, the day of the last board meeting, the East Side’s Information Ministry at the Mercury News ran an editorial titled “Budget’s Balanced, but Not For Long.” For the first time ever, Fensterwald had something nice to say about the teacher’s union—and in doing so, negated every argument he made over the year about the union, its inflexibility, and its role in the budget crisis. So much for his credibility.

But then he wrote this curious paragraph about the concessions the district negotiated with the union:

“The union had resisted concessions, doubting the severity of the crisis, but in the end came through. It agreed to add as many as three students per class, to 31, for one year. Teachers also will eat a portion of double-digit increases in health care expenses. These compromises saved the jobs of librarians, counselors and dozens of others.” (read the whole article here: )

Did you hear a peculiar sound the morning of June 16th? Hundreds of teachers simultaneously spit coffee on their morning paper as they discovered they would be paying more for their health care benefits. According to one teacher familiar with the bargaining team, the health care issue was still on the negotiating table when the article was written. So why did the Mercury report it? How did they learn about it?

Team Unruly knows there are only three people who email Fensterwald regularly: Superintendent Zendejas, trustee Mann, and, to a lesser extent, trustee Martinez-Roach. Perhaps they should heed the advice Fensterwald gave them in the article above: “Superintendent Esperanza Zendejas and the trustees should use this time to build the trust that will be needed to avoid another crisis.” If you want employees to trust you, trustees, delete Fensterwald from your address book.

2. QUIT THREATENING TO SUE EACH OTHER!

Two of the most embarrassing board spectacles of the year had to do with the threat of litigation. Patricia Martinez-Roach felt slighted by her board colleagues back in November, so she publicly declared that she was considering filing a lawsuit against the other trustees for something we still don’t fully understand. Then there was Craig Mann threatening to sue if the board used money earned from the sale of surplus land to balance the budget. He claims to have wanted to use the money to address the impacted facilities issue at Evergreen Valley High School (though a quick trip to http://www.craigmann.org/VisionToLead.html suggests he wanted to reserve the money for a new high school in the Coyote Valley area). In the end, 965 angry employees made the board realize that, yes, the profits from the surplus land should be used to cover the budget crisis the board created. Mann never followed through with his threat, but it is doubtful that those on the board who are quick to litigate will ever understand the extent to which such threats damage their credibility.

3. TAKE RESPONSIBILITY FOR CAUSING THE LOW MORALE!

Want to know which board member went from goat to hero after meeting with a group of teachers during a staff meeting? George Shirakawa, Jr. Our correspondents from Andrew Hill inform us that, unlike some of his other colleagues, trustee Shirakawa admitted that he was not as knowledgeable on specific school issues as he should be. It was as blunt and honest an opening comment any trustee could have made. But he went further. He told the crowd that the ESUHSD board is dysfunctional, and the dysfunction is exacerbating the variety of crises facing the district. He confirmed what most teachers throughout the district had suspected for years.

The ESUHSD board has been facing a supposed budget crisis for a couple of years now, and they have done what most self-serving politicians with an eye to the next rung of the political ladder does: blame the guy that’s no longer there. In this case, some district officials have manipulated the media into blaming the entire budget crisis on former superintendent Joe Coto. This website contains enough articles and comments on why Coto isn’t to blame, so we’ll just state the obvious through an analogy. Independence High School has a Space and Aeronautics magnet program affiliated with NASA. Let’s say a pro-science superintendent comes along and proposes we spend, oh, 30 million dollars so five students in that academy can take a field trip to the moon on board the space shuttle. Students, parents, and the media would erupt over such an outrageous proposal. But the key word here is “proposal”. A superintendent can make all kinds of outrageous proposals, from sending 5 kids into space to starting a school-site sewage treatment facility to unnecessarily laying off 80% of the workforce. The board of trustees has the final say on any proposal. They are the group entrusted to keep the district in the black. Joe Coto might have made suggestions, but the trustees are the ones who sign the authorizations.

It also helps to call a wrong a wrong. Trustee Craig Mann has spent most of the past year inappropriately attacking employees. He acts as if winning a school board election made him the ruler of an empire. His particular brand of megalomania has caused more damage to the school board than they are willing to acknowledge. It should not be the job of teachers and community members to remind public figures that they have to adhere to a higher ethical standard. It is high time Mann’s colleagues on the board reprimanded him for his inappropriate outbursts.

Pay attention to all the red flags. Besides the 965 layoff notices, has anyone on the board noticed the mass exodus of popular site administrators out of the district? A handful left last year; this year twice as many either retired early or left for saner pastures. Did anyone on the board bother to ask Jack Mahrt why he left? The Unruly Advocate knows it was more than just a better job in a community college district. Like the rest of us in this community, Mahrt was weary of the malfeasance and dysfunction.

When all is said and done, the responsibility to maintain a professional climate and positive morale rests with the board of trustees. Shirakawa and newcomer Lan Nguyen seem to be the only ones who understand that.

4. THE APPEARANCE OF CONFLICT IS STILL A CONFLICT!

Coto’s biggest problem as a superintendent was his district office hiring policy. Rather than fire incompetent site administrators, Coto had a habit of moving them into menial district office jobs. Some argued he wanted to keep that site-administrator from destroying relationships with employee groups. His methods led people to believe Coto practiced cronyism. It was one of the primary complaints against Coto’s administration—and those complaints came from the more publicly vocal members of the board.

What happens when Coto leaves? Relatives of current board members get hired into six-figure salary district-level jobs. Strings are pulled and favors are granted. Given all the turmoil this past year, one would hope a little more caution would be taken in these matters to rebuild trust. But the school year ended with the discovery that the new principal at CCOC was none other than Esperanza Zendejas’ husband from Indianapolis. As the Metro notes, the appearance of conflict is just as bad as genuine conflict (read the article here: ) And the hypocrisy does nothing to repair trust between employees and management.

5. BUY OUT ZENDEJAS’ CONTRACT

As we demonstrated in part one of the “Unauthorized Biography of Esperanza Zendejas,” this superintendent is no stranger to controversy. Contrary to popular belief, Zendejas appears to have had her contract bought out only once—in Indianapolis. Prior to that, her modus operandi was to leave before a buyout could take place. The evidence of her destruction is all around the district. Questionable budget numbers. The highest rate in administrative turnover in decades. The largest teacher protest in district history. The largest unnecessary layoff in the history of California public education. Remember Fensterwald’s second full-page feature on Zendejas? It was titled “Tough Love, Tough Year,” (and you can read the whole article here: ), and it featured an accompanying sidebar on Zendejas’ hand-picked cabinet with the bombastic title “Running the Show.” All five members of Zendejas’ cabinet were featured.

Only three of those five currently remain in the district.

Team Unruly understands the realpolitik. Buying out a contract is admitting a mistake was made. An admission of that nature could destroy a political future. The other side of the coin has been the million dollar question since we launched this website. Maybe the board wanted this type of leadership. Maybe the board wanted to shake up the unions, commit what they call in the private sector a slash and burn. It all boils down to two possibilities: incompetence or malice. Incompetence destroys political careers; malice is a better gamble. It worked for this guy: and it might work for East Side’s beleaguered trustees. Besides, a buyout is a political statement that requires courage and integrity. They are both in short supply at 830 North Capitol Ave.

Every action has a consequence. The decision to hire Zendejas, manipulate the media, and sanction self-serving behaviors resulted in the largest employee backlash this district has ever seen. It also led to the creation of this website. But we are only a symptom, not the disease. To those who seek to cure our unruliness through the threat of litigation we say, “trustee, heal thyself.”