David Smollar
Deposition Transcript Index
Deposition Transcript

1



1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 FOR THE COUNTY OF ORANGE

3

4 RON LACKEY,

5 Plaintiff,

6 vs. No. 06CC00149

7 CRYSTAL KOCHENDORFER, et al.,

8 Defendants.

9

10

11

12 _____________________________________________________

13

14 DEPOSITION OF DAVID J. SMOLLAR

15 Costa Mesa, California

16 Friday, September 15, 2006

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18

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20

21 Reported by:
LORRAINE CHAMPAGNE
22 CSR No. 6452

23 JOB No. 53291

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2


Parties Δ


1 SUPERIOR COURT OF THE STATE OF CALIFORNIA

2 FOR THE COUNTY OF ORANGE

3

4 RON LACKEY,

5 Plaintiff,

6 vs. No. 06CC00149

7 CRYSTAL KOCHENDORFER, DUANE E.
STIFF, JOHN CASABIANCA, SHEILA
8 J. BENECKE, SHELIA J. HENNESS,
MARLENE M. DRAPER, MIKE DARNOLD,
9 individually in their official
capacity as Members of the Board
10 of Trustees of the Capistrano
Unified School District; BOARD OF
11 TRUSTEES OF THE CAPISTRANO UNIFIED
SCHOOL DISTRICT; CAPISTRANO UNIFIED
12 SCHOOL DISTRICT; JAMES FLEMING in
his official capacity as
13 Superintendent of the Capistrano
Unified School District; and DOES 1
14 THROUGH 5 INCLUSIVE,

15 Defendants.
_________________________________________________________
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3



1 Deposition of DAVID J. SMOLLAR, taken on

2 behalf of Defendants Crystal Kochendorfer, Duane

3 E. Stiff, John Casabianca, Sheila J. Benecke,

4 Shelia J. Henness, Marlene M. Draper, Mike

5 Darnold, individually in their official capacity

6 as Members of the Board of Trustees of the

7 Capistrano Unified School District; Board OF

8 Trustees of the Capistrano Unified School

9 District; Capistrano Unified School District;

10 James Fleming in his official capacity as

11 Superintendent of the Capistrano Unified School

12 District, at 611 Anton Boulevard, Thirteenth

13 Floor, Costa Mesa, California, beginning at

14 9:31 a.m. and ending at 3:08 p.m., on Friday,

15 September 15, 2006, before LORRAINE CHAMPAGNE,

16 Certified Shorthand Reporter No. 6452.

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4


Appearances Δ


1 APPEARANCES:

2

3 For Plaintiff:

4 WEWER & LACY, LLP
BY: JAMES V. LACY
5 Attorney at Law
30011 Ivy Glenn Drive, Suite 223
6 Laguna Niguel, California 92677
(877) 449-2700
7
For Defendants Crystal Kochendorfer, Duane E. Stiff, John
8 Casabianca, Sheila J. Benecke, Shelia J. Henness, Marlene
M. Draper, Mike Darnold, individually in their official
9 capacity as Members of the Board of Trustees of the
Capistrano Unified School District; Board of Trustees of
10 the Capistrano Unified School District; Capistrano
Unified School District; James Fleming in his official
11 capacity as Superintendent of the Capistrano Unified
School District:
12
RUTAN & TUCKER, LLP
13 BY: DAVID C. LARSEN
Attorney at Law
14 611 Anton Boulevard, Fourteenth Floor
Costa Mesa, California 92626-1931
15 (714) 641-5100

16 Also Present:

17 RON LACKEY
TONI SIMPSON
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5


Index Δ


1 INDEX

2 WITNESS EXAMINATION

3 DAVID J. SMOLLAR

4

5 BY MR. LARSEN 8, 194

6 BY MR. LACY 95

7

8
EXHIBITS
9
DEFENDANTS' PAGE
10
1 Deposition Subpoena and attachments; 7 pages 11
11
2 7/22/06 Register article; 1 page 69
12
3 7/27/06 Register article; 1 page 69
13
4 Complaint and answer; 29 pages 76
14
5 Westlaw Attached Printing Summary Report for 76
15 Lacy, Janice; 15 pages

16 6 Findlaw printout for Duval v. Board of Trustees; 77
11 pages
17
7 4/25/05 memo to Trustees; 2 pages 81
18
8 Notice Of Intention To Circulate Recall 81
19 Petition; 1 page

20 9 A Special Statement By Superintendent James A. 82
Fleming Relating Facts About The District;
21 3 pages

22 10 4/26/05 letter from James V. Lacy to Dr. James 83
A. Fleming; 4 pages
23
11 11/18/05 News Release; 3 pages 84
24
12 James A. Fleming Biography; 1 page 86
25




6



1 INDEX (Continued):

2 EXHIBITS

3 DEFENDANTS' PAGE

4 13 12/15/05 e-mail from DJS to sbenecke; 2 pages 86

5 14 12/23/05 e-mail from Shelia Henness to DJS; 88
1 page
6
15 12/22/05 News Release; 2 pages 88
7
16 2/27/06 Press Release; 2 pages 89
8
17 3/1/06 note to Dr. Fleming; 1 page 90
9
18 5/23/06 resignation; 1 page 91
10
19 5/23/06 letter from James A. Fleming to 91
11 Mr. Smollar; 1 page

12 20 Cartoon; 1 page 91

13
PLAINTIFF'S
14
A Board Actions; 18 pages 140
15
B Board Minutes; 3 pages 146
16
C Disclosure Of Confidential Information; 1 page 149
17
D Article by David Smollar; 3 pages 157
18
E 7/30/05 Special Meeting document; 1 page 160
19
F 7/30/05 memo from Heather Wheeler to Dr. James 161
20 A. Fleming; 8 pages

21 G 4/25/05 Superintendent's Prepared Statement 170
Regarding Ron Lackey's Request At Board Regarding
22 Alleged FBI Investigation Of District; 4 pages

23 H From the Desk of James A. Fleming...; 1 page 173

24 I 9/11/06 memo from Chuck McCully to Marlene M. 175
Draper, et al.; 5 pages
25




7



1 INDEX (Continued):

2 EXHIBITS

3 PLAINTIFF'S PAGE

4 J 10/31/05 fax from Ron Lackey to David Smollar; 178
1 page
5
K 12/2/05 fax from Ron Lackey to David Smollar; 179
6 1 page

7 L 6/7/05 letter from David Smollar to Ron Lackey; 181
1 page
8
M Actions By The Board; 3 pages 183
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N Closed Session Purposes And Agendas; 5 pages 184
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1 Costa Mesa, California, Friday, September 15, 2006

2 9:31 a.m. - 3:08 p.m.

3

4 DAVID J. SMOLLAR,

5 having been administered the oath, was examined and

6 testified as follows:

7

8 EXAMINATION

9 BY MR. LARSEN:

10 Q All right. Mr. Smollar, would you state and

11 spell your name for the record.

12 A Okay, David, D-a-v-i-d; middle initial, J.; last

13 name, Smollar, S-, as in Sam, -m-, as in Michael,

14 -o-l-l-a, as in apple, -r.

15 Q And what's your current address?

16 A 3722 Arnold Avenue, number 4, San Diego,

17 California, 92104.

18 MR. LACY: I'm sorry for interrupting, but while

19 we're on the record, could we discuss what you intend to

20 do today in terms of the deposition? Maybe some of the

21 ground rules that you intend to be working on.

22 MR. LARSEN: Well, I was going to go over those

23 with Mr. Smollar, but the ground rules, of course, are

24 the ground rules in the Code of Civil Procedure, so we'll

25 be following those.




9



1 MR. LACY: No, I understand that, but -- well,

2 the first thing I want to say is that it appears that

3 you've elected to not record this deposition through

4 instant visual display of testimony or videotape; that's

5 correct, isn't it?

6 MR. LARSEN: That's correct.

7 MR. LACY: Okay. Secondly, I'd like to have an

8 idea of how long you expect to be conducting this

9 deposition, because I have staff here, and I have the

10 plaintiff here, and I'd also like to know when I might be

11 able to expect to be able to ask my questions. So I'm

12 asking you a timing question, and that's what I meant by

13 "ground rules."

14 MR. LARSEN: Okay. You know, it's difficult to

15 estimate. I estimate that my questions will last

16 somewhere between two to three hours. I mean, that's

17 just an approximation, it could be more, could be less.

18 MR. LACY: I'd like to express the hope or

19 possibility that we might be able to complete your

20 questions before lunch, because if you're saying three

21 hours, that would take us into about 12:30, maybe take a

22 short break for lunch, and then have us come back and

23 have me ask my questions. Is that something that might

24 be a goal that we could work towards?

25 MR. LARSEN: It certainly could be a goal. You




10



1 know, I'm not going to be constrained by any --

2 MR. LACY: I understand.

3 MR. LARSEN: If the examination takes longer,

4 it'll take longer. I don't have any problem breaking for

5 lunch. And if there are -- you know, we'll just have to

6 kind of see where the questions lead. If we're finished

7 before, if I'm through for some reason after an hour,

8 hour and a half, I would expect you to just go ahead and

9 get started --

10 MR. LACY: Of course.

11 MR. LARSEN: -- if that's all right.

12 MR. LACY: To just get off of this, could we

13 just say we'll break around noon for lunch?

14 MR. LARSEN: Absolutely. Let's ask the witness.

15 Q Do you have any time constraints?

16 A No, but just as a matter of suggestion, if you

17 were -- if it's noon and you're near to finishing, would

18 it not make more sense to go a little past noon --

19 MR. LACY: Of course.

20 THE WITNESS: All right.

21 MR. LACY: For right now --

22 THE WITNESS: I don't have any time constraints.

23 MR. LACY: -- break about noon to about 1:15?

24 MR. LARSEN: Fine.

25 MR. LACY: Thank you very much.




11



1 BY MR. LARSEN:

2 Q All right. Mr. Smollar, have you ever had your

3 deposition taken before?

4 A No.

5 Q Have you ever testified in any kind of legal

6 proceeding?

7 A Actually in a courtroom?

8 Q Courtroom --

9 A I'm trying to cover all bases.

10 Q -- office, administrative hearing, or any other

11 situations where you were placed under oath.

12 A Not that I can recall, no.

13 Q Okay. Well, just to kind of review what we're

14 doing here today, you are being deposed in a legal

15 proceeding brought by Mr. Lackey against the trustees and

16 Dr. Fleming of Capistrano School District. And as I

17 understand it, you're here pursuant to a subpoena that

18 you received --

19 A Received from you, yeah. Or from your office.

20 MR. LARSEN: I'll just mark as Exhibit 1 to the

21 deposition a copy of the subpoena. We'll call this

22 Defense Exhibit 1.

23 (Defendants' Exhibit 1 was marked.)

24 BY MR. LARSEN:

25 Q Is that a copy of the subpoena you received?




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1 A It looks to be the same copy. Okay, and you're

2 not videotaping, even though it is marked?

3 Q Correct.

4 A Audiotape?

5 Q No. We'll go into that in a minute.

6 A Okay, then don't explain it now.

7 Q That is the deposition (sic) you received?

8 A Correct.

9 Q Okay. And you've been placed under oath --

10 A Correct.

11 Q -- and that's the same oath that you would take

12 if you were testifying in a court or legal proceeding

13 testifying; do you understand that?

14 A Understand that.

15 Q And that oath requires you to be truthful and

16 honest in all of your answers.

17 A I understand that.

18 Q Now, as you properly noted, the notice of the

19 deposition indicated that it could also be videotaped.

20 We won't be videotaping today, but we do have a court

21 reporter. That reporter, and it's the actual court

22 reporter, is the official record of what you testify to,

23 even with the videotape. The court reporter on your

24 right and my left is certified and independent, and she's

25 taking down each and every word that is said today in




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1 this proceeding, unless we say we're off the record. If

2 we're off the record, then she won't type. Unless

3 somebody formally goes off the record and everyone

4 agrees, then everything will be on the record; do you

5 understand that?

6 A I understand that.

7 Q And she will type everything up into a booklet

8 format. You'll be given an opportunity to review that

9 and make any corrections, if you believe corrections are

10 necessary, and to sign it. So that is part of the

11 process. However, if you make corrections that change

12 your testimony, that could reflect adversely upon you as

13 a witness. So it's important that we have complete,

14 accurate testimony today. Will you give us complete and

15 accurate testimony today?

16 A I think I've already sworn to that.

17 Q Okay. So you will?

18 A I've sworn to that.

19 Q Okay. Are you under any medication or physical

20 limitations which would in any way impair your ability to

21 recall or to testify?

22 A No.

23 Q Now, one more just general instruction, or two

24 more. If you don't understand a question for any reason,

25 ask for clarification. If you don't ask for a




14



1 clarification, myself or anyone else reading the

2 transcript will assume you understood the question; is

3 that fair?

4 A Okay.

5 Q Also, it's important that you answer audibly.

6 Sometimes witnesses have a tendency to nod their head,

7 that she doesn't record, and they sometimes use "uh-huh"

8 and "huh-uh," that's just what we all do in speech at

9 times. If you do that, that doesn't make a clear record,

10 so we'll remind you use "yes" or "no."

11 A Okay.

12 Q And if we have to make that reminder, then don't

13 take it as a personal affront, it's just making a clear

14 record.

15 A Okay. Understood.

16 Q We have coffee and juice and water available.

17 If you need a break, please feel free. Also, if you feel

18 a need to visit the restroom, you can ask for a break,

19 and we'll give you a break and opportunity to do that.

20 A All right.

21 Q We've already indicated that we'll be breaking

22 at some point for lunch as we approach the 12:00 hour,

23 and we'll determine exactly what we will do in that

24 respect.

25 A Okay.




15

Smollar's background Δ


1 Q Do you currently have any business address other

2 than your home address?

3 A No.

4 Q Are you currently employed?

5 A No.

6 Q Going back, what is your most recent past

7 employment?

8 A With Capistrano Unified.

9 Q And how long were you employed with Capistrano

10 Unified School District?

11 A Approximately four and a half years.

12 Q And what was your position?

13 A My title was -- official title was director of

14 communications, communications director.

15 Q Did you have any other titles while at

16 Capistrano Unified?

17 A No.

18 Q Who did you report to?

19 A Jim Fleming.

20 Q Did you ever report to anyone else other than

21 Jim Fleming?

22 A No.

23 Q Prior to going to work for Capistrano Unified

24 School District, what was your employment prior to that?

25 A I had worked at San Diego Unified School




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1 District as the public information officer.

2 Q And how long did you work at San Diego Unified

3 School District?

4 A Let's see. Can I write on this or --

5 Q Well, if you need a pad --

6 A Yeah, just a pad. Just a couple pieces. Want

7 to be accurate. Okay.

8 So approximately two and a half years.

9 Q And what was your reason for leaving San Diego

10 Unified School District?

11 A The position in Capistrano Unified was a

12 higher-paying position.

13 Q Who did you report to at San Diego Unified?

14 A Several people. The first -- when I first

15 employed there, Dick -- Dick Daniels. Then I reported to

16 Norma Trost. Then I reported to Tom Mitchell. And then

17 I reported to John Spellig.

18 Q And prior to working for San Diego Unified

19 School District, what was your employment?

20 A I was employed at the -- as the manager of

21 communications at California State University,

22 San Marcos.

23 Q And how long were you in that position?

24 A Approximately 13 months.

25 Q And what was your reason for leaving that




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1 position?

2 A The position at San Diego Unified was a

3 higher-paying position.

4 Q And prior to San Marcos, what position did you

5 have?

6 A I was the director of communications -- no, I'm

7 sorry, I was director of media relations for the

8 California State University at Long Beach.

9 Q And how long were you there?

10 A There approximately 15 months.

11 Q And going back to San Marcos, who was your

12 direct supervisor?

13 A George Cagala, C-a-g-a-l-a.

14 Q And what was your reason for leaving as director

15 of media relations for California State Long Beach?

16 A I wanted a position closer to San Diego.

17 Q Who was your immediate supervisor at Cal State

18 Long Beach?

19 A Tony Barone.

20 Q Prior to working at Cal State Long Beach, where

21 did you work?

22 A Los Angeles Times.

23 Q And how long were you with the Los Angeles

24 Times?

25 A 15 -- 14 years or 15 years. Let me check,




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1 little me do a little quick math. Approximately 15

2 years.

3 Q And what was your reason for leaving the

4 Los Angeles Times?

5 A The Los Angeles Times was in a financial pinch

6 and closed its San Diego bureau.

7 Q Have you ever worked for The Orange County

8 Register?

9 A Temporarily, yes.

10 Q When did you work for The Orange County

11 Register?

12 A From -- it would have been October of '97 to --

13 no, wait a minute. I'm sorry, October of '95 to June of

14 '96.

15 Q Who was your immediate supervisor there?

16 A John -- I'm blanking on his last name.

17 Doussard, D-o-u-s-s-a-r-d.

18 Q And was your employment with The Orange County

19 Register concurrent with your L.A. Times employment or

20 after?

21 A After.

22 Q And it was prior to your work for Cal State Long

23 Beach?

24 A Correct.

Smollar's duties at CUSD Δ


25 Q All right. As director of communications at




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1 Capistrano Unified School District, what were your duties

2 and responsibilities?

3 A Let's see. I essentially prepared press

4 releases or news releases. I would draft the weekly

5 update for the superintendent. I would draft his monthly

6 column, monthly column for the superintendent. I would

7 generally edit all correspondence that went out from the

8 district to more than 15 people, a rule of thumb. I was

9 the point of contact in most cases for media, either

10 getting them the information or referring them to the

11 appropriate person in the district. I had oversight of

12 the two receptionists in the lobby. And the last year of

13 my employment there I had oversight of the graphic arts

14 department. And I would do other writing as directed by

15 the superintendent.

16 Q How often did you meet with the superintendent?

17 A Many times a day on a daily basis. But when you

18 say -- I should clarify that. When you say meetings, I

19 mean, he ran his administration on a somewhat informal

20 basis, where administrators essentially just went in and

21 out of his office whenever they needed to see him, they

22 weren't -- they weren't appointments. The only time I

23 think I ever saw him on an appointment basis would be if

24 he had scheduled a meeting with several people and wanted

25 me to be part of it or as -- sometimes when you were down




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1 there, there was a meeting with you and the staffers and

2 he wanted me there, there would be a time certain. But

3 otherwise, it was essentially whenever he needed to see

4 me or I needed to get approval from him on something that

5 had been written or edited.

6 Q Did you ever attend school board meetings?

7 A Yes.

8 Q And how often did you attend school board

9 meetings?

10 A I attended every school board meeting during my

11 tenure at Capistrano Unified.

12 Q Did you attend closed sessions?

13 A No. And that needs -- I can explain that.

14 MR. LACY: Could I just ask for a clarification

15 for the record? You might want to explain what a closed

16 session is.

17 MR. LARSEN: Or, you know --

18 MR. LACY: I mean, does he understand what you

19 mean by "closed session"?

20 MR. LARSEN: You know, I think he does.

21 Q You understand what I mean by "closed session"?

22 A Yeah, it's understood, it's a session that the

23 public -- there are topics on the agenda that are said

24 not to be in the purview of the public.

25 I did attend -- when I first got to Capo in --




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1 MR. LACY: Are you referring to closed -- I'm

2 sorry to --

3 THE WITNESS: Closed sessions.

4 MR. LACY: -- interrupt, but to address myself

5 to counsel, when you say "closed session," if I may, I

6 think it might help the record if you explain what you're

7 referring to. Are you talking to just a closed meeting,

8 or are you talking about some sort of legal connotation,

9 such as a closed session under the Brown Act? And you

10 might want to lay some foundation there for purposes of

11 the record.

12 MR. LARSEN: Counsel, you'll have your

13 opportunity to ask questions. I'm going to conduct my

14 examination the way I feel comfortable and I'll be

15 comfortable with my record. If you feel like there's

16 clarification, you'll be given that opportunity to make

17 any clarification at the conclusion of my examination.

18 MR. LACY: Okay. Well, I think it would help

19 everyone if we understood what you meant by "closed

20 session."

21 MR. LARSEN: All right.

22 THE WITNESS: Can you repeat the question.

23 MR. LARSEN: Yes.

24 Q Did you attend closed sessions that were part of

25 a regular school board meeting or special -- or of a




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1 school board meeting?

2 A Well, first, yes. And I was just told by staff

3 that staff attends the closed sessions, which start at

4 6:00 p.m. on a Monday before the 7:00 p.m. regular

5 meeting, and sometimes they reconvene -- the board

6 reconvenes the closed session following the open session,

7 whenever it ends, at 9:00 or 10:00 or whatever. And it

8 was -- and I did, because the entire cabinet, which was

9 11, 12, 13 people, depending on the particular time,

10 there was a lot of staff in there.

Brown Act violations Δ


11 I got to be a bit uncomfortable attending

12 because, from my knowledge of the Brown Act and closed

13 and open meetings, from both my experience as a

14 journalist and my work with the Cal State systems, and

15 particularly with San Diego Unified, there was a lot of

16 discussion that went on in the closed meetings that

17 struck me as problematical. And I told Dr. Fleming --

18 this would have been probably in late spring of '02 --

19 that I was uncomfortable attending because there were

20 things being talked about that, if I were asked by a

21 member of the public or the media, I would have to lie if

22 I was to say I had no knowledge of it, and I felt, for my

23 protection, it would be best that I wouldn't be in closed

24 meetings, unless I was there on a particular issue

25 regarding the communications department. And he looked




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1 at me quite puzzled and said, Well, that's okay, but I'm

2 shocked, in so many words, not quoting him precisely, but

3 you're the first communications person I ever had who

4 didn't want to be there at the seat of the power. And I

5 said, you know, essentially, "Well, so be it, but I'd be

6 more comfortable not being in those meetings."

7 Q So you did not attend closed session after

8 spring of 2002?

9 A Correct. Unless I was specifically instructed

10 to because there was an issue that I would need to

11 address as part of a closed session agenda item.

12 Q After spring of '02, approximately how many

13 closed sessions did you attend?

14 A Less than -- less than five, I'm sure.

15 Q Did you attend a closed session on July 30th,

16 2005, to discuss the superintendent's evaluation?

17 A I attended no closed session on July 30th, 2005.

18 Q Did you ever attend a closed session where the

19 superintendent's evaluation was discussed?

20 A No.

Fleming's responsibilities Δ


21 Q What do you understand to be the

22 superintendent's job duties and responsibilities?

23 A Basically, to carry out the policies of the

24 school district as directed by the board of trustees. I

25 mean, in the broadest sense.




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1 Q He is the chief executive officer of the

2 district, in your understanding?

3 MR. LACY: That's a leading question, but I

4 won't object.

5 THE WITNESS: I just -- I'm not sure what you

6 mean by that.

7 BY MR. LARSEN:

8 Q Well, who is the chief executive officer of the

9 school district?

10 A Well, explain to me what -- precisely when you

11 say "chief executive officer." Because I think of the

12 term "chief executive officer" in private sector terms,

13 and I'm not sure that it equates exactly to a public

14 agency.

15 Q Well, is there anybody at the school district

16 that's responsible for the overall operations of the

17 district?

18 A Yes.

19 Q And who's that?

20 A The superintendent.

21 Q And is there any part of the school's operations

22 that he's not responsible for, to your knowledge?

23 A To my knowledge, no.

24 Q And would you expect him to -- he answers to the

25 board of trustees; is that your understanding?




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1 A Yes.

2 Q And would you expect him to be evaluated on all

3 aspects of the district's operation?

4 A I think that's reasonable.

5 Q Is there any aspect of the district's operation

6 that you would not expect him to be evaluated on?

7 A He has the ultimate responsibility for the

8 district.

9 Q He would even have ultimate responsibility for

10 communications, would he not?

11 A Yes.

Smollar's reason for quitting Δ


12 Q Why did you terminate your employment with the

13 district?

14 A It's best expressed in one of the documents that

15 I gave you in my letter of resignation. And if I could

16 see it, I'd like to pair- -- I'd like to actually read

17 it.

18 Q Well, we're going to get into the documents in a

19 minute, but as you sit here today as a witness, what was

20 your reason for --

21 A My reason was I no longer felt that I could

22 portray a truthful picture of the district because, in

23 essence, I was not receiving truthful information from

24 the superintendent.

25 Q Did you ever tell anyone that you were resigning




26



1 from the district because the district had contracted

2 with Mike Eggers?

3 A No.

4 Q Did you ever mention being upset about the

5 district contracting with Mike Eggers to anybody?

6 A Not about the contract with Mike Eggers, no.

7 Q Were you upset that he was going to possibly be

8 reviewing your work?

9 A No.

10 Q You never mentioned that to anyone?

Fleming lies about Eggers contract Δ


11 A Well, if you want the context -- you asked me if

12 I was upset on the contract with Mike Eggers, and the

13 answer is no, but I was upset because Dr. Fleming lied to

14 me about there being a contract and then lied to me about

15 the authorship of a particular document that, unbeknown

16 to him, I had been given by a secretary that was offered

17 by Mike Eggers. And subsequently both -- he lied about

18 the particulars of an invoice that Mike Eggers had

19 submitted to the district.

20 Q So you had conversations with Dr. Fleming about

21 the district's relationship with Mike Eggers; is that

22 correct?

23 A Yes.

24 Q And what did you say in those -- how many

25 conversations did you have with him about the contract




27



1 with Mike Eggers?

2 A Well, the conversations with Mike Eggers go back

3 to fall of 2005, when I had come back from a vacation and

4 was working on the superintendent's weekly update and had

5 given it to Dr. Fleming and was concerned why I hadn't

6 gotten it back to post it on the Web site. And I ran

7 into Susan McGill, who was Dr. Fleming's administrative

8 assistant/superintendent of administration at that point,

9 or whatever her title was, and she, in essence, told me

10 that Mike Eggers was reviewing all district -- all the

11 superintendent's documents.

Fleming considers resigning Δ


12 And I went in and asked Dr. Fleming quite

13 pointedly, "What's going on here?" And he, you know,

14 said, "I don't like this any more than you do, but it's

15 being forced on me, because we're in a recall, and the

16 board president insists, and that's just the way it's

17 going to have to be for a while. And I'm thinking of

18 quitting," this is Dr. Fleming talking to me. And, in

19 fact, that's when Dr. Fleming had me start work on a

20 resignation, slash, retirement news release that he said

21 he might issue at the end of November following -- or

22 between the time the recall petitions were turned in and

23 before it was announced by the registrar whether the

24 recall had succeeded or not.

Eggers replaces Smollar Δ


25 Subsequently the column, which, of course, Mike




28



1 Eggers was writing in toto, I had nothing to do, then,

2 with the column or the weekly update, so he wasn't

3 editing me, it was being done by Susan McGill and/or

4 Dr. Fleming, to the extent he was getting Susan McGill's

5 input, his column was sent out by the secretary to the

6 eight Orange County weekly newspapers and the Capistrano

7 Dispatch, which is an every-other-week newspaper, which

8 sometimes used his column, sometimes didn't.

Fleming lies about Eggers Δ


9 And Jonathan Volzke called me back, who's the

10 editor of the Capistrano Dispatch, and said, "How come

11 Mike Eggers is writing the superintendent's column?" And

12 I said, "Well, I'm not sure he is." He says, "Well, yes,

13 he is. I right-clicked on the document that his

14 secretary, superintendent's secretary, sent over, and it

15 says 'Author, Mike Eggers.'" So I said, "Well, Jonathan,

16 you'll have to talk to Dr. Fleming about that, I'm not in

17 a position to answer that question."

18 He talked to Dr. Fleming. Dr. Fleming came to

19 my office after that was -- this conversation with Volzke

20 and said, "Well, I couldn't tell Jonathan, you know, the

21 truth, that, you know, I'm under orders to do it, I just

22 told him Mike Eggers is an old friend of mine, and, you

23 know, he helps me out from time to time."

Eggers crosses Fleming Δ


24 Then subsequently Dr. Fleming asked me if I

25 knew -- this is maybe a couple days later -- if I knew




29



1 that Mike Eggers was conducting some sort of strategic

2 analysis for the district. I said, "I don't talk to Mike

3 Eggers, I don't think I've met him but once, but I have

4 no knowledge of that." And Dr. Fleming told me, well,

5 that Mike Eggers had gone to the associate

6 superintendent, Dan Crawford, associate or deputy

7 superintendent, Marge LaRoe -- I think those were their

8 titles at that point -- and also associate

9 superintendent, Dave Doomey, and told them that he had

10 been tasked by the board president to do a strategic

11 study/analysis of the district separate from the

12 superintendent.

Doomey or Crawford squeals Δ


12 Apparently, Dave Doomey and or Dan

13 Crawford or both of them informed Dr. Fleming about that,

Fleming confronts Draper Δ


14 and Dr. Fleming told me that he was going to have -- and

15 these are his exact words -- a, quote, Come to Jesus

16 meeting with board president, Marlene Draper, about Mike

17 Eggers and what he was doing.

Smollar reinstated Δ


17 Within the next week I was

18 back writing the weekly update and the superintendent's

19 monthly column.

Egger's PAC retained Δ


20 Now, to bring forward to your original question,

21 I heard nothing more about Mike Eggers. The recall, as

22 we all know, failed, we went into the year. And then Sam

23 Miller of the Register queried me about a listing on the

24 warrants listings, which are these voluminous, many-page,

25 sometimes 70 or more pages, of all the purchase orders,




30



1 warrants, et cetera, that go out of the -- that are paid

2 for the district, they hire people, payments to Rutan &

3 Tucker are listed monthly on those purchase warrants.

4 Apparently, there was a listing for something called

5 Creative Connection, and Sam Miller said that that was

6 Mike Eggers' public relations -- or public -- political

7 action firm, I'm not sure what -- how exactly would

8 clarify -- how he would describe it. I said "I" -- "I

9 don't know, but I'll find out."

Fleming warned about Eggers Δ


10 So I went in and asked Dr. Fleming, and I said,

11 you know, "This could be a problem. Why are we hiring

12 him?"

Fleming lies about Eggers Δ


13 "Well, Marlene wants him to do some community

14 outreach," this and that. I said, "Well, you know, you

15 asked me for advice as communications director. This is

16 problematic. Sam Miller knows about it. Volzke will

17 probably know about it. I mean, it doesn't look good.

18 We've hired the PAC" -- "the man who ran the trustees'

19 political action committee, he's now on our payroll

20 doing, quote, community relations or whatever type of

21 work." He said, "I know, I know, but it won't have

22 anything to do with your area, nothing to do with your

23 area," meaning communications, the weekly update or the

24 column. I said, "Well, you know, Sam Miller has

25 requested any documentation." He says, "Well, give it to




31



1 him, you know, that's okay, fine."

2 Around that time -- I'm not quite sure the time

3 process -- Dr. Fleming then went to Italy for a vacation,

4 and the day he left -- it was a Friday, whatever that

5 Friday was, it was around the time of the Easter break --

6 he gave me his column for the May -- the May column, in

7 essence, and he wanted -- it was on -- he had dictated --

8 he never wrote -- he never wrote anything, because he

9 didn't have a -- he doesn't use a computer, and he very

10 rarely writes, but he dictated about 1,200 words to Jane

11 Boos, his secretary -- or one of the secretaries,

12 shorthand, and they transcribed it. He gave it to me,

13 says, "I'm leaving. I want you to look at this. You

14 need to cut it down," because the newspapers needed no

15 more -- would take, excuse me, no more than 650 words.

16 Says, you know, "You gotta edit it." He would always

17 say, he used the phrase a lot, "This is a" -- you know,

18 "an unfinished clay, mold it into a nice statue," he

19 liked to use that term. I said, "Okay," you know, "I'll

20 work on it while you're on" -- "over in Italy." And I

21 said, "But think about, you know, when you want to use

22 it. Do you want to use it in May, or do you want to wait

23 till June? Because we're moving in May, and if something

24 doesn't go right with the move, the column would have

25 been out" -- usually the column ran in the early part of




32



1 May -- "and it'll look funny. So just think about

2 whether we want to wait and use the column in June, when

3 we're moved in. And, you know, things can go wrong while

4 you're moving an entire office." He said, "Fine."

5 So I worked on it, cut it down to half. And but

6 while he was gone, about late the following week, some

7 stuff was dropped in my basket, I guess when I was at

8 lunch, and when I got back, I looked at it, and it was

9 the column he had sent to Mike Eggers and a cover note to

10 Eggers -- and this is all done through e-mail, through

11 Kate McIntyre, because she sent all of his e-mail -- and

12 Eggers' edited column came back. And I thought, "Gee,

13 this is interesting." And, basically, he told Eggers,

14 you know, "Some of my staff doesn't think," you know,

15 this, that. So I looked at it, and I didn't honestly

16 think Eggers' thing was very good, and I figured, what

17 the hell, but I didn't know why I got it.

18 So Dr. Fleming got back the following week, and

19 it was very busy, because he got back literally on a

20 board night day. And I brought in my edited column to

21 him and said, "Here's the column." He said, "Oh, great,

22 I'll read it," blah, blah, blah. And he says, "This is

23 great, this is great, but I want to show you, I actually

24 worked on it while I was over in Italy." And I sort of

25 did a -- was a little surprised, because, you know, while




33



1 he was on vacation -- he normally wouldn't do it anyways.

2 He said, "I want you to look at my edited version." So I

3 said, "Fine," and he looks for it, but, as usual, he can

4 never find anything in his office. So I said, "I'm

5 across the hall. When you find it, come over, and I'll

6 read it."

7 About five minutes later he comes over and said,

8 "I edited it myself, what do you think?" So I looked at

9 it, and I realized right away it was Mike Eggers' edit.

10 So I figure, you know, he's having a little fun with me

11 or whatever. So I figure, well, I'll -- let's play along

12 with the fun. So I read it, and I said, "Well, I have to

13 be honest with you, Dr. Fleming, I think your

14 original" -- "the original version you wrote is better

15 than the one you just edited." He goes, "Really? Oh,

16 okay, we're going to use yours anyway. So -- and he

17 walked out.

18 So I thought, well, he's going to say, "Hey,

19 this was a test thing to Eggers," or whatever. Remember,

20 he had told me that Eggers would have nothing to do with

21 the district communications, he was on this contract to

22 do community outreach, like, get plaques of all the

23 cities in the Capo area to put on the wall in the new

24 district office, and he was going to line up -- plan a

25 party, sort of reception in the building once we got in.




34


Fleming betrays Smollar Δ


1 But Dr. Fleming never fessed up. And at that point I

2 decided, you know, if I don't have the trust of the

3 superintendent, then, you know, that's a pretty lousy

4 situation to be working in. What other games is he

5 playing with me? What else has he lied to me about? And

6 that's where it crystallized.

7 So that's a long answer to your question.

8 Q And you then resigned?

9 A Couple weeks later I submitted a letter of

10 resignation.

OCR public records request Δ


11 Q Anything else happen between during that two

12 weeks which caused you to submit your resignation?

13 A Well, the only other thing was that Sam Miller,

14 you know, had had a public information request in for the

15 documentation of Eggers' contract, Creative Connection,

16 and I -- I told Dr. Fleming, said, "Well, you know, you

17 got it as public record, public record, and I had given

18 it to Miller."

Public records abuse Δ


18 But I guess Dr. Fleming didn't realize

19 that I was going to give it to Miller, he thought that I

20 would do what Dr. Fleming liked us to do a lot on public

21 records requests, is wait ten days, send the notice back

22 saying, "Well, we got your request, and we're looking

23 into it," and then sort of delay, delay, delay.

Phony bill scam foiled Δ


24 And I found out from other people in the

25 building he was furious that it had gone out, because,




35



1 apparently, he and Marlene Draper were going to have Mike

2 Eggers submit a new -- what do you call -- a new form for

3 work done, his -- I'm blanking on the word he used, when

4 you submit your bill that lists the work you've done.

5 There's a word for it. But, anyways, that he was going

6 to submit a different one, because the first one he

7 submitted could be open to, I guess, ridicule because he

8 charged for two and a half hours for lunch with Laguna

9 Niguel, you know, mayor about teacher of the month

10 program and some other things. And, in fact, the board

11 night in May I learned a duplicate bill was actually

12 faxed to the district, but -- and it was going to be

13 given to me to give to Sam Miller, but I'd already given

14 Sam Miller the initial, true bill, so my understanding

15 was that he -- that the board president was quite upset

16 at that.

Fleming fakes anger Δ


17 Q Well, who told you that, who told you he was

18 furious? You said you learned from other people in the

19 building that he was furious. Who?

20 A Sherry Hahn.

21 Q And what did she tell you?

22 A She told me he had been back there trying to

23 find out how the document had gotten to Sam Miller.

24 And -- as I told Sherry Hahn at the time, the strange

25 thing is he knew the document had gotten to Sam Miller,




36



1 and I think he was just -- he was role-playing for the --

2 probably the benefit of Marlene Draper.

Fleming is "duplicitous" Δ


2 But in any

3 event, I realized that this man was so duplicitous, that

4 I no longer had any desire to continue working for him.

5 Q And this all related to the issue surrounding

6 yourself and Mr. Eggers; is that correct?

7 A No, it related to other issues that had been

8 building, but, you know, this was sort of the straw that

9 broke the camel's back.

Fleming bald-faced liar Δ


10 Q Well, let's talk a little bit about -- did you

11 ever go and talk to Dr. Fleming about your concern that

12 the column had been edited by Mr. Eggers that you wrote

13 in the spring of 2006?

14 A No.

15 Q Why not?

16 A Because of the way he had been duplicitous and

17 lying bald-faced that he had edited something that wasn't

18 an edit of his at all, what was he going to do, blow more

19 smoke in my face? You know, there was -- at that point,

20 you know, it was very hard to trust anything that the man

21 would say to me.

Ron Lackey Δ


22 Q Do you know Mr. Lackey, Dr. Lackey?

23 A Yes, I do.

24 Q And how do you know Dr. Lackey?

25 A I be- -- I became aware of Ron Lackey probably




37



1 at least as early as board meetings of spring 2002, when

2 he -- I became aware he was a regular person attending

3 board meetings and speaking during the public session

4 about special ed, special education matters. And if

5 there was a special education matter that were actually

6 docketed on the agenda, he would speak to that as well,

7 but if not, he would always speak during the public

8 comment session of the open meeting.

Meeting rules Δ


9 Q And were there rules and regulations that

10 related to public comment at the open meeting?

11 A Yeah. I mean, I'm not -- I don't -- I don't run

12 the board meetings, so I'm not -- I don't know them in

13 all detail, but, yes, there are.

14 Q Who was responsible for making sure the rules

15 and regulations were followed in the district,

16 ultimately?

17 A Well, the superintendent.

18 Q And you would expect the board to hold him

19 accountable for how those rules and regulations were

20 followed?

21 A I would answer that question this way: I would

22 expect that a board of trustees would expect their -- or

23 its chief administrative officer or chief executive

24 officer to follow all the rules and regulations. I

25 have -- I would state it as a generality.




38



1 Q And would you expect them to look to him for

2 guidance and direction on what those rules and

3 regulations are?

4 A Well, I guess I have to ask for clarification of

5 your question. Are you talking specifically about the

6 Capistrano Unified School Board?

7 Q Yes.

8 A But I -- there are enough instances that I saw

9 over four and a half years where I'm not sure I could

10 make that generality in all cases with this board and

11 this superin- -- or the former superintendent.

12 Q Would you expect a school board to look to their

13 superintendent to keep them informed as to what are the

14 rules and regulations?

15 A In a general sense, yes.

16 Q Now, other than Mr. Lackey -- or Dr. Lackey, I'm

17 sorry -- Dr. Lackey speaking at board meetings, did you

18 have other interactions with Dr. Lackey?

19 A Yes. I mean, Dr. -- the interactions with

20 Dr. Lackey sort of waxed and waned over the entire four

21 and a half years of my work at Capo. I mean, at the

22 outset in that spring I really didn't have any

23 interaction with him, other than I would see him at the

24 board meetings every month, and he would be speaking on

25 special ed, and he would be the source of a fair amount




39



1 of comment in the Tuesday cabinet sessions that the

2 superintendent holds every week, and particularly the

3 Tuesday cabinet sessions following the Monday night board

4 meeting.

Plan to shut up Lackey Δ


4 And, I mean, sometimes he'd say, you know,

5 "Isn't there any way, you know, we could shut that guy

6 up?" or blah, blah, blah.

7 I mean, if Lackey had -- Dr. Lackey, in

8 particular during that period, was very critical of the

9 district's special ed executive director, Susan Roice,

10 who was number two under Doreen Lohnes, who was the

11 assistant superintendent, I think -- I think that was her

12 title, but she was in charge of special ed, Susan Roice,

13 I think, was the operations.

Susan & Robert Roice issues Δ


13 Dr. Lackey was very

14 critical because the husband of Susan Roice, a man I

15 think, if I'm not mistaken, his name is Robert Roice,

16 worked as a consultant in our special ed division or

17 department, and Dr. Lackey was very, very critical of

18 that, because he thought it was a conflict of interest

19 with Susan Roice being the exec director. But he also --

20 there was another point he was also making. Oh, also

21 because Robert Roice, he said, was doing attorney-like

22 functions or had an attorney-like role in special ed

23 hearings and he was not an attorney. And this went on, I

24 mean, you know, month after month.

Lackey feared as candidate Δ


 25 And then the -- we were into the summer and




40



1 early fall of '02, and Dr. Lackey was a declared and then

2 certified candidate to run for the district board seat

3 held by Crystal Kochendorfer. And there was one meeting

4 where Dr. Lackey in particular -- maybe it was September

5 or October, one of the meetings just before the

6 election -- where he got the ear of a reporter from the

7 San Clemente Sun Post and the reporter from the

8 San Clemente Sun Post, which is a three-times-a-week

9 newspaper and owned by The Orange County Register. At

10 that time the way the Register covered the district on

11 most things was they would have that reporter for the Sun

12 Post write stories that would then go in all of the seven

13 other weekly editions of the Register that circulated

14 within the Capo Unified School District geographical

15 area. And Crystal Kochendorfer and Dr. Fleming and Susan

16 Roice, I mean, they were all worried about what a story

17 like that would look like.

Roice special ed case Δ


 18 And I was given by Doreen Lohnes, who I

19 assume -- and it's an assumption, but I -- who got it

20 from Susan Roice, but I was given a copy of a court case

21 that I think originated against the Poway Unified School

22 District, and they were sued -- Poway was sued by some

23 special ed advocates, and Robert Roice was at issue, and

24 the issue in that case was that, basically, Robert Roice

25 was practicing law without -- you know, without proper




41



1 procedure or whatever, the rules and regulations of

2 special ed. The case went against the special ed

3 advocates, it went for the city of -- or the Poway School

4 District, and I think it was certified by whatever the --

5 I guess the court of appeals.

6 Q Let me refocus your answer a little bit, because

7 I --

8 A Well, this is -- well, but this is -- goes to

9 the gist of your answer.

10 Q Let me rephrase the question, maybe, so we can

11 get through the deposition.

12 A All right.

13 Q Beginning with 2005, maybe the last -- 2004-'05

14 school year, so that would be September '04 and

15 thereafter, did you spend a great deal of time responding

16 to requests by Dr. Lackey?

17 A Yes, Dr. Lackey -- actually, for a while during

18 the '04-'05, Doreen Lohnes was replaced in special ed by

19 Susan McGill, temporary assignment, and for a period

20 there things seemed to calm down. I think Dr. Lackey

21 even got up at one board meeting and actually praised

22 Susan McGill for the way she was handling the special ed,

23 and he -- he wasn't there every meeting. But then --

24 and, again, I -- I guess this was sometime in late

Joint powers authority Δ


 25 '04-'05 the district joined a consortium along with other




42



1 school districts of some authority where they're pooling

2 their money to be able to fight special ed advocates and

3 IEPs more strongly or whatever. I forget what it's

4 called, but that seemed to just tick off Ron Lackey

5 immensely, and subsequently every board meeting he was

6 there.

7 And at one board meeting Dr. Fleming had me

8 prepare -- because --

9 Q If you just focus in on the questions.

10 Was a lot of time spent responding to

11 Dr. Lackey?

12 A By the district, yes.

13 Q Yes.

14 A Yes.

15 Q And were a lot of district resources being

16 absorbed by responding to Dr. Lackey?

17 A Not necessar- -- not really.

18 Q Well, when you say a lot of time was spent,

19 approximately how much time was spent?

20 A Well, it was my time, and, I mean, that was part

21 of my -- that's part of my job description. So I would

22 be spending, I don't know, maybe, you know, two hours a

23 week. I mean, it's hard to estimate. I mean, he --

24 because he -- he would ask for the same items essentially

25 over and over and over again, and my responses to him in




43



1 many ways was a reiteration, "Dr. Lackey, you were given

2 this this date, this this date," I mean, I would go down

3 this laundry list and say, "I've already given you this,

4 you already have it. Some other things are still waiting

5 for you at the reception desk." Because he objected to

6 the 15-cent-per-page copy, and he would come in and read

7 the documents in the lobby. And I'd say, "You've asked

8 for this before, it's been sitting here in the lobby.

9 Here are the lobby hours, come in and look at it." But,

10 I mean, it was essentially a reiteration over and over.

11 But as to a tremendous amount of time on my part, no, the

12 answer to that is no.

13 Q Were other employees spending time responding to

14 Dr. Lackey?

15 A Not that I'm aware of, no.

16 Q Was Dr. Lackey a special education advocate?

17 A I mean, he's self -- self-proclaimed, so I guess

18 he considers him a special education advocate.

19 Q Did he represent individuals who were seeking

20 services or benefits or expenses from the district?

21 A I don't know. I'm not aware of that.

Relationship with McGill Δ


 22 Q Now, what was your working relationship with

23 Susan McGill?

24 A I'd say overall, probably businesslike.

25 Q Did you have any personality clashes with her?




44



1 A No.

Visit to Registrar's office Δ


 2 Q Did you and she go to the registrar's office?

3 A Yes.

4 Q Why did you go to the registrar's office?

5 A She -- I don't know if -- well, I assume she was

6 asked by Dr. Fleming to call Neil Kelly, whom she had

7 had, Dr. Fleming's words, a special relationship with for

8 several months during the recall, for -- I guess, you

9 know, Dr. Fleming wanted someone to look at all the

10 petitions, after -- this is after the recall was over,

11 and --

12 Q You say you guess.

13 A Well, I don't know, because I was only told by

14 Dr. Fleming to go along with her, but I don't know what

15 the original motivation was.

16 Q Did he tell you why he was sending you to go

17 along with her?

18 A No, he didn't, he just said, "I think you should

19 go along with her."

20 Q Okay. Did he give you any specific instructions

21 on what to do when you were there?

22 A He said, "Take a look, you know, see if there's

23 interesting stuff." You know, it was very vague.

24 Q Did you do that?

25 A Did I go? Yes, I went with Susan McGill.




45



1 Q And did you take a look to see if there was any,

2 quote, interesting stuff?

3 A She and I got there, we were taken back. And

4 the arrangement was there were several tables all piled

5 high with petitions for each one. And, I mean, I don't

6 recognize -- she started to go through, because she

7 thought maybe she'd recognize names.

McGill's idea to copy names Δ


7 Then she said,

8 "Well, why don't we at least take down the petitioners,"

9 because each of the bottom of a -- of the signature sheet

10 would be the person who had gone out and solicited those

11 names. So I think we ended up taking down about two

12 dozen names of people who at every table, you know,

13 showed up, because it -- and it turned out it was very

14 logical, because if someone signed one, this person had

15 all seven, so that it would be essentially the same

16 person -- two dozen people who went around and circulated

17 petitions.

18 Q So you took down two dozen names out of the

19 seven tables piled high?

20 A Correct.

Smollar types list Δ


 21 Q And once you did that, what did you do with

22 them?

23 A I came back to the district, it was on a Friday.

24 I think the following Monday I typed the list up, it was

25 a single page, and I gave one copy to Dr. Fleming, I gave




46



1 another copy to Susan McGill.

2 Q Why did you type up that list?

3 A Because Susan McGill had, you know, said, "Let's

4 take the names" -- you know, "take the names down." And

5 Dr. Fleming had wanted something as a result of the -- I

6 think she had briefed him that Friday when she came back,

7 orally, on what we had done.

8 Q So she briefed him orally. Did anybody tell you

9 to type up that list of names?

10 A Nobody directed me to type the list up.

11 Q So you just did that and gave it to her and

12 Dr. Fleming?

13 A Uh-huh.

14 Q By "uh-huh," you mean yes?

15 A Yes. Yes.

16 Q That's one of those --

17 A Sorry, yes.

Fleming takes list Δ


 18 Q And nobody asked you for that, you just did it;

19 is that correct?

20 A But Dr. Fleming was very happy to receive it.

21 Q Well, how do you know, did you personally hand

22 it to him?

23 A Because I personally handed it to him.

24 Q And what did he say?

25 A He said, "This is great," the way he would




47



1 usually characterize things. And as he's want to, he

2 would stand when I came in, because he was a little

3 bit -- he didn't like the fact that he was so much

4 shorter than I was. So I handed it to him, he was

5 standing, said, "Thanks, this is great," and he put it in

6 his box -- he had a whole bunch of double boxes, and he

7 has a single box at the end which was for his trustees,

8 and he put it in his trustees box.

9 Q This is in the office where he can't find

10 anything?

11 A Uh-huh.

12 Q "Uh-huh" meaning yes?

13 A Yes.

14 Q Now, did you do anything else with respect to

15 your visit to the registrar's office?

16 A No.

Cost of recall Δ


 17 Q Was there any concern in the district about the

18 cost of the recall?

19 A A lot of concern.

20 Q And why was the district concerned about the

21 cost of the recall?

22 A Because the superintendent -- Registrar of

23 Voters had told us -- and I think this was back when it

24 was -- certificated petitions to go out for signatures in

25 June of '05 -- that a special election would cost up to




48



1 $600,000, because there was some cent figure per

2 signature that the registrar charged for counting, and

3 you could figure they were going to submit, you know --

4 they had to submit a minimum of, like, what, 23 or

5 however many signatures, and you multiply that by seven,

6 and you multiply that by the cost per signature the

7 registrar would charge, you had a big cost right there.

8 And then on top of that, if you had a special election,

9 we knew -- the business division knew what it would cost

10 to put on a special election. So the grand total in the

11 worst case was -- I mean, I shouldn't swear to this

12 figure, because I'm not sure, but I think it was near

13 $600,000 it could have run.

14 Q At the time you ended up at the registrar's

15 office, was there still some concern about the fact the

16 district may be paying for these signatures and how that

17 was going to be calculated?

18 A No.

Fleming knew CUSD off hook Δ


 19 Q When did the district learn that it was not

20 going to have to pay for the verification signature?

21 A Dr. Fleming and Susan McGill and subsequently

22 cabinet, we knew sometime during the day on whatever the

23 Monday of the first board meeting was in January, so that

24 was the 9th -- I don't know when the board meeting was,

25 but, anyways, during the day on that board meeting.




49


Fear factor at CUSD Δ


 1 Q Since leaving the district, have you had any

2 discussions with any district employees?

3 A Not substantive. I mean, I've called some to

4 say hi.

5 Q Who have you talked to?

6 A I've talked to my -- I'm not sure it's his --

7 I'm not sure they want me to -- because of the fear

8 factor that's in the district.

9 Q Well, you're under oath, there's no reason not

10 to answer the question. Who did you talk to?

11 A I talked to the Web master, Tanya Owens, to ask

12 her if the Web was being kept up. I've talked to both

13 receptionists just to say hi. Linda Ross and Pat -- Pat

14 Cox, because Pat had been out sick for a long, long time

15 during the last six months, and I made sure she was okay.

16 I've talked with several other -- Sherry Hahn and Sherine

17 Smith. Shelia Henness. Maybe one or two more, but those

18 are the -- think Dave Doomey one time.

District Attorney raid Δ


 19 Q Did you ever talk to Carla Delatorre?

20 A Uh-huh.

21 Q By "uh-huh," you mean yes?

22 A Yes. Talked to her once.

23 Q You talked to her once?

24 A Actually twice, yeah.

25 Q And what was your purpose in calling her?




50



1 A I had heard -- I'd gotten a phone call from The

2 Orange County Register that the district attorney had

3 raided the -- had raided -- essentially come down to the

4 office to cart away stuff, and I called her to ask her

5 what it was like in there. Said it was real quiet, real

6 quiet.

7 Q Did you laugh while you were talking to her?

8 A Uh-huh.

9 Q Why did you laugh?

10 A I thought it was amusing.

11 Q You thought what was amusing?

12 A I thought the reaction, she said, "Around here

13 is real quiet," I thought that was amusing.

14 Q Did you ask her if they were being allowed to

15 leave the building?

16 A Yes.

17 Q And what was her response?

18 A She said she didn't know.

19 Q And did you tell her that you'd heard from a

20 source inside the district they were not being allowed to

21 leave?

22 A No.

23 Q You didn't tell her that?

24 A No.

25 Q You're absolutely sure?




51



1 A I'm almost positive I didn't tell her that.

2 Q Did you tell her that you'd been in contact with

3 someone on the inside for some time and that was your

4 source?

5 A No, because, in fact, my source was someone at

6 the Register.

7 Q And that's how you learned that there had been

8 a --

9 MR. LACY: I'm going to interpose an objection

10 to the relevance of this line of discussion to the

11 complaint that we've filed. And my objection is to the

12 entire line of questioning with respect to the call and

13 discussion to this Carla.

14 And you can go ahead and answer the questions.

15 THE WITNESS: No.

16 BY MR. LARSEN:

Smollar gave "hit lists" to OCR Δ


 17 Q You took some documents to The Orange County

18 Register, correct?

19 A Yes.

20 Q What documents did you take to the -- give to

21 The Orange County Register?

22 A To The Orange County Register? They, let's see,

23 would have been hit lists -- see, what did they have?

24 The hit lists that were prepared in Dr. Fleming's office

25 from the e-mail of Kevin Murphy. Let's see.

Smoillar gave mole memo to OCR Δ


25 The memo




52



1 that Ed Kovac -- or that Fleming had written to trustees,

2 based on Ed Kovac, of the mole that they had inside the

3 recall.

Smollar gave other docs to OCR Δ


3 The true calculation of his total compensation

4 for '03-'04. Gosh, what else? A copy of the draft press

5 release that he had me prepare announcing his

6 resignation, that would have been for November of '05.

7 Two or three of e-mail blasts that he sent out to his key

8 communicators over the period right when the recall was

9 being served to the board, the board members being

10 served, he sent out a series of e-mail blasts and

11 attachments of documents to these various key

12 communicator groups. A copy of the meeting notes that

13 were given out to staff about this July 30th, Saturday

14 meeting. And an agenda of, I think the July '04 Saturday

15 meeting and an agenda of the January '05 Saturday

16 meeting. And there may be one or two others, but I'm

17 just blanking.

Public records conspiracy Δ


 18 Q Those were all documents that you had taken with

19 you when you left the employment of the district?

20 A Oh, no, a lot of those I'd had. Most of the

21 ones for the recall I had had at home at the time,

22 because he had told, not just me, but I think he had told

23 all cabinet, on the advice that you had given him as the

24 district's attorney, that recall-related documents should

25 be kept at home, and, therefore, they wouldn't be subject




53



1 to public-requests records, because there wouldn't be

2 documents in the files of the district. So most of those

3 documents I had had -- I had been keeping at home since,

4 you know, probably April -- April or May of '05.

Larson advised Smollar Δ


 5 Q Is it true that he told you that all recall work

6 should be done at home and on your own personal time

7 because it shouldn't be district business?

8 A No, I think you told me that directly.

9 Q So you understood that you shouldn't be working

10 on district time on the recall; is that correct?

11 A Correct. And I didn't.

Why Smollar went to OCR Δ


 12 Q Why did you give documents to the Register after

13 you left the district?

14 A Well, the Register had called Dr. Fleming,

15 apparently, to ask, you know, "Why did Smollar quit?"

16 And I think Sam Miller knew, because I think I probably

17 expressed to him the storm that had arisen over him

18 having the documentation of Eggers.

Fleming lies about Smollar Δ


18 And I guess, you

19 know, Fleming characterized my leaving that, "Oh, I was

20 going to fire him anyway, and he's disgruntled, and he

21 wasn't all that great," to Miller, and I just thought,

22 well, the truth ought to come out about something.

OCR wanted truth Δ


22 So

23 when Sam called me in reaction to that, I said, "Well,

24 Sam, I can tell you that a lot of that's not correct."

25 He said, "Well, can you prove any of that?" And I said,




54



1 "Well, I'll show you some things."

2 Q Well, how did all these documents you shared

3 with him have to do with your work product?

Fleming defies counsel Δ


 4 A Well, let's -- you know, let's go back to the

5 hit lists and the Kovac memo, which I was specifically

6 told by you, when I called you for advice, that they were

7 public documents, and that even though they'd be

8 embarrassing, they were public documents and they needed

9 to be released to Kevin Murphy as part of Kevin Murphy's

10 request. And when I told Dr. Fleming that, he absolutely

11 said no,

Fleming protects mole Δ


11 and he was most concerned about the Kovac memo,

12 because he was petrified that the recall people would

13 learn -- or figure out from that memo who the mole was

14 in -- in their midst.

15 And all of these documents had been compiled,

16 they were all recall documents that had been in his

17 office. And when Kevin Murphy's FOI came in in May and

18 it was passed down to me and I went in to Dr. Fleming and

19 said, "I need to look at all the recall documents to see

20 what's, you know, public, what we have to give him," and,

21 again, because he couldn't find anything in his office,

22 he buzzed for Kate McIntyre, who came in and said, "It's

23 over here," this big, fat manila folder of stuff, and I

24 went through it, and most of it, according to what I

25 understood, were public documents.




55



1 And remember calling you, and specifically on

2 the Kovac, because there was a confidential stamp on the

3 Kovac, and you said it didn't matter what kind of stamp

4 was on there, unless it was specifically subject to

5 attorney-client privilege, it was a public document. And

6 Dr. Fleming absolutely forbade me to hand those out, and

7 I didn't.

CUSD buries liquor receipts Δ


7 The same way he forbade me to hand out when

8 Kevin Murphy had also requested the expense receipts of

9 the trustees, and he forbade me to hand those out before

10 having the business division -- and someone in the

11 business division went through and pulled out all

12 receipts that were liquor receipts, because one or more

13 trustees was quite worried it would get out that liquor

14 might have been ordered on business trips and paid for.

15 So that's why I kept those at home, because I

16 was, frankly, worried that at some point if there were to

17 be, you know, someone swoop down in all the files, you

18 know, somebody would say, "Jeez, you know, why weren't

19 those released?"

Fleming knew records offsite Δ


 20 Q Did you tell Dr. Fleming you were keeping

21 district records at your home?

22 A I'm not the own- -- he knew. I think he knew

23 that --

24 Q My question is: Did you tell him that you had

25 taken district documents and were keeping them at your




56



1 home?

2 A I think I did on some of those, yes.

3 Q And what did he say?

4 A He said, "Good," I think, because he was worried

5 about this idea that they would be, you know, subject to

6 the records -- you know, public records request if they

7 were in district files.

Records kept in shared "communications folder" Δ


 8 Q When you left the district, did you disable your

9 computer?

10 A No.

11 Q Did you erase any items from your computer?

12 A I trashed lots of notes, you know. For example,

13 I had probably 15 different -- probably 15 different

14 versions of a letter I had written for Shelia Henness,

15 when she was board president, responding to the teachers'

16 strike. But the reason why it didn't matter is there's a

17 shared file, called communications folder, and everything

18 of record is in that shared file that I had access to,

19 Jane Boos had access to, I think Greg Nestor, my -- so

20 what essentially I trashed were notes, memorandum, all

21 the things, as I understand in the Brown Act, you know,

22 you don't have to keep anyways. As I say, everything of

23 record is in the -- is in that shared communications

24 folder.

25 Q And where is that?




57



1 A Well, I mean, it's kept on -- you know, it's on

2 some server, but, you know, I have an icon. I'm sure Bev

3 DeNicola has that same folder, she inherited that folder

4 from me. Jane Boos has access to it.

5 Q So you deleted everything off of your computer?

6 A No, not everything.

7 Q What did you delete off your computer?

8 A As I said, I deleted a lot of my -- you know, my

9 documents that I knew were either duplicative of what was

10 in the shared folder or preliminary memoranda as such. I

11 mean, other stuff, for example, the PIB, the Parent

12 Information Booklet, I probably had the Pagemaker

13 documents for those going back three or four years, I

14 trashed those because those would be of no use anyways.

Convesations with Sherry Hahn Δ


 15 Q Since leaving the district, how many

16 conversations have you had with Sherry Hahn?

17 A Oh, probably maybe a half-dozen or so.

18 Q And what was discussed in those conversations?

19 A Oh, she would laugh, tell me about her dog, tell

20 me about how my name was mud. You know, after each story

21 would come out, how, you know, people would trash my

22 name.

Conversations with Shelia Henness Δ


Conversations with Shelia Henness
23 Q What was said in your conversations with Shelia

24 Henness?

25 A She offered to write me a letter of




58



1 recommendation if I needed it.

2 Q Did you have her write one?

3 A She wrote a draft, and I never followed up on

4 it.

Conversations with David Doomey Δ


5 Q What was said in your conversations with Dave

6 Doomey?

7 A I think it was just how to find -- get ahold of

8 Christian Osmania, who had been the board student trustee

9 and was working in Washington, doing his work in

10 Washington.

Conversations with Pat Cox Δ


11 Q When you talked to Pat Cox, did you talk to Pat

12 Cox right after the first article, where you had your

13 discussions about Sam Miller's reporting?

14 A I don't remember.

15 Q Did you call to brag about the fact that you had

16 gone to the Register and caused problems?

17 A I don't recall doing that, no.

Convesations with Sherine Smith Δ


18 Q What was said in your conversations with Sherine

19 Smith?

20 A I asked Sherine what did she think. She --

21 because she had been -- in private conversations with me

22 she had been very, very critical of the way the

23 superintendent was running things and the hyperbole, the

24 evasions, the outright lies at times. And talked to her

25 and said, "Well, what do you think?" She thought it was




59



1 for the best that he had resigned.

2 Q And how many conversations did you have with

3 her?

4 A One, I think.

Convesations with Sherry Hahn Δ


5 Q Your conversations with Sherry Hahn, did you

6 initiate those, or did she?

7 A I think she called some of the time, I called

8 some of the time.

9 Q Were those when she was at work?

10 A No.

Conversations with Linda Ross Δ


11 Q Anyone else in the district you talked to? You

12 said you talked to Linda Ross, what was said in your

13 conversations with Linda Ross?

14 A I just asked her how she was doing.

15 Q What did she say?

16 A She said things were fine. She said she missed

17 me.

18 Q Did you ever do any research with respect to

19 board policy dealing with public communications?

20 A I don't understand the question.

21 MR. LACY: I'm going to object as vague, and I'm

22 going to, you know, suggest that you might want to have a

23 more targeted question.

24 THE WITNESS: I just don't understand the

25 question.




60



1 MR. LARSEN: All right, I'll rephrase the

2 question.

Board policies relating to public comment at board meetings Δ


3 Q Are you aware of any board policies that related

4 to regulation of public comment at board meetings?

5 A Say that again.

6 Q Are you aware of any board policies that dealt

7 with regulating public comment at the school board

8 meetings?

9 A Yes.

10 Q Did you ever do any research or evaluation of

11 those policies?

12 A No.

13 Q Did anyone ever ask you to?

14 A I don't think so, no.

15 Q Did anyone ever ask you to -- in your presence,

16 ever ask anyone else to research or evaluate those

17 policies?

18 A That I'm not sure of. They might have -- he

19 might have asked somebody in cabinet once, but I'm not --

20 I couldn't swear to that.

21 Q Did anyone ever discuss in your presence the

22 need on behalf of the superintendent to start making sure

23 those policies were enforced?

24 A No.

Discussions about how to enforce board policies against Ron Lackey Δ


25 Q Did you ever attend a cabinet meeting when it




61



1 was discussed how the district could enforce board

2 policies with respect to public communications with

3 respect to Dr. Lackey?

4 A Well, there were innumerable times when it was

5 discussed about Dr. Lackey and was there a way to keep

6 him from getting up. But I don't -- I don't recall it

7 being talked to -- talked about in the cabinet with

8 respect to specific board policies.

9 Q What was said about ways to keep Dr. Lackey from

10 getting up? Answer his questions, staff try to talk with

11 him, work with him?

12 A Well, I mean, strangely enough -- as I said, it

13 waxed and waned, because while Susan McGill was running

14 special ed and before this joint powers authority, or

15 whatever it was created by all these districts, he

16 actually, I think, got up a couple times and was quite

17 complimentary about Susan McGill, you know, and some

18 improvements in special ed. I mean, that's, you know, my

19 broad recall.

20 Q Did you ever have any direct discussions with

21 Dr. Lackey?

22 A About?

23 Q About anything.

24 A Oh, yes.

25 Q Since leaving the district, have you had any




62



1 discussions with Dr. --

2 A No.

3 Q -- Lackey?

4 A No.

Conversations with Ron Lackey Δ


5 Q What were your discussions with Dr. Lackey

6 about?

7 A The telephone discussions? Basically, I was

8 trying to explain to him -- he kept -- he kept asking at

9 board meeting after board meeting for a line-item budget,

10 and I kept trying to explain to him we don't have a

11 line-item budget as such. What we do have is this

12 voluminous document that shows each category for spending

13 for every department, and it's voluminous, and I could

14 put it on a disc and he could have it and open it and

15 look at it, you know, and I think that's what he wanted.

16 And I think we had two or three discussions about that.

17 And we actually -- I think I did make the disc, and I

18 don't know if he ever picked it up, but it was brought to

19 the reception area in an envelope for him to pick up.

20 Q Were you ever -- withdraw that.

21 Let me mark as --

22 Do you need a bathroom break at all?

23 A No, I'm fine.

24 MR. LARSEN: Anybody else?

25 MR. LACY: I'd actually appreciate a quick one.




63



1 MR. LARSEN: Okay. Why don't we --

2 MR. LACKEY: Is that on record?

3 MR. LACY: Just a few minutes?

4 THE WITNESS: Five.

5 (Recess.)

6 BY MR. LARSEN:

Last conversation with Sherry Hahn Δ


7 Q When was the last time you had a discussion with

8 Sherry Hahn?

9 A I guess probably about a week ago.

10 Q And what was the content of that discussion?

11 A She called to joke about -- I was quoted, I

12 think, on a -- I said I'd swear on a stack of bibles, and

13 she thought that was funny.


Smollar learns about search warrant from Sam Miller Δ


14 Q Who at the Register told you about the search

15 warrant or what you called the raid at the district

16 office?

17 A Sam Miller.

18 Q Do you have a close relationship with Sam

19 Miller?

20 A No.

Discussed deposition with Jim Lacy Δ


21 Q Have you had any discussions with anyone about

22 your deposition today?

23 A Yes.

24 Q Who have you had discussions with?

25 A Jim Lacy.




64



1 Q When did you have your discussions with

2 Mr. Lacy?

3 A I called him after I received your subpoena to

4 ask him if he was aware of it, and he said yes. And then

5 I said, "Well, can you tell me what the process is? I

6 haven't gone through a deposition." And he walked me

7 through, said, you know, you would ask questions, there

8 would be a stenographer, it would range -- could range

9 widely over things. I then asked him if he would send me

10 a copy of the case, because I hadn't seen the case. The

11 only knowledge I had of the case is the L.A. Times had

12 written a story about the lawsuit by Ron Lackey. And he

13 agreed he would Fed-Ex me a copy of the case, which he

14 did. And then subsequently he Fed-Ex'd me a copy of your

15 answer. And when he did that, I called him and asked him

16 was he going to be here at this, and he said, well, yes,

17 because he could piggyback on. I said, "Well, are you

18 going to ask me any questions?" He says, "Yes." I said,

19 "Well, can I ask you what they'll be?" He said, "Well,

20 no, but I can sketch for you sort of broad areas where

21 it'll be" -- what is it -- my general knowledge of how

22 the administration ran in Capo, my knowledge of the

23 Saturday meetings, and my knowledge of district

24 interaction with Ron Lackey.

25 Q And did you discuss any of those topics with




65



1 him?

2 A Not in any substance, no.

3 Q What did you say with respect to each of those

4 topics?

5 A I told him I could talk a lot about interaction

6 with Ron Lackey and the district. I obviously am

7 familiar with administrative areas of the district. And

8 that I said -- I said, "But, you know, you should know

9 this going in, I did not attend the Saturday meeting."

10 Q And what was his response to any of that?

11 A I guess I would say unremarkable, because I

12 can't characterize it any more. You know, just "Be happy

13 to see you there."

Documents given to the Register or the District Attorney Δ


14 Q Now, you brought with you some documents today.

15 You indicated that there are other documents that you

16 took home that were district documents.

17 A Well, they were public documents that --

18 Q That you took home.

19 A Correct. Or I had at home.

20 Q And you didn't bring copies of any of those

21 documents?

22 A I don't have them.

23 Q You gave them all to the Register?

24 A Register or other parties.

25 Q Who else did you give them to?




66



1 A Investigator for the district attorney.

2 Q And what documents did you give to the

3 investigator for the district attorney?

4 A The -- I had a -- one of the lists or maybe two

5 of the lists. Some of the -- Fleming's e-mails, the

6 e-mails Fleming sent out to key communicators. Oh, the

7 Kovac -- Fleming-Kovac memo on the mole. Trying to

8 think. I think he -- no, he didn't want the press

9 release. There may have been one or two more, but

10 basically --

11 Q How many times did you have discussions with the

12 dis- -- who was the district attorney investigator you

13 talked with?

14 A His name is Luis Gutierrez.

15 Q How many times did you talk with him?

16 A I've talked with him several times.

17 Q Have you ever signed any statements or

18 documents?

19 A No.

20 Q When was the last time you talked with him?

21 A Within the past week.

22 Q And what was said in your discussions with him

23 in the past week?

24 A I called him to tell him I was being deposed by

25 you.




67



1 Q And did he give you any instructions with

2 respect to that discussion?

3 A No.

4 Q When you talked with him, did he record your

5 conversations?

6 A Yes. Well, he recorded at least one.

7 Q Did you have any discussions with him about the

8 meeting of July 30th?

9 A No.

10 Q What topics did you discuss with him?

11 A Jeez. I mean, he ranged all over the place. I

12 mean, he talked about -- I mean, he asked questions

13 about -- I don't know a lot about a lot of stuff he was

14 asking, but he was asking about, you know, district's

15 financing of --

16 MR. LACY: I'm going to object for relevance,

17 because he's already answered that they didn't say

18 anything about the meeting of July 30th.

19 But I'm interposing the objection for the

20 purpose of the record, so you can go ahead and answer the

21 question.

22 BY MR. LARSEN:

23 Q Go ahead.

24 A Do I need to answer?

25 MR. LACY: It's up to you.




68



1 BY MR. LARSEN:

2 Q Well, we don't have a judge here.

3 MR. LACY: That's right.

4 BY MR. LARSEN:

5 Q And the question is posed. I understand you're

6 not being represented by Mr. Lacy, are you?

7 A No.

8 MR. LACY: My objection is for the record.

9 BY MR. LARSEN:

10 Q So, yes, you should go ahead and answer the

11 question.

12 A Well, he asked me about all the stuff the recall

13 people had been saying about financing facilities, about

14 portable classrooms, about Brown Act violations, about

15 public records violations, about -- I don't know, it just

16 went across the board, every -- every allegation that's

17 been raised, I mean, they were -- it was a very

18 open-ended --

19 Q What was said in your conversations about Brown

20 Act violations?

21 MR. LACY: I'll withdraw my objection.

22 BY MR. LARSEN:

23 Q What did you say, and what did he say?

24 A What did -- well, I mean, he just posed

25 directly. I mean, I -- I sort of raised issues of, you




69



1 know -- you know, some specifics that I thought were --

2 were in violation, but, you know, that I wasn't an expert

3 on the Brown Act.

4 Q Well, what did you tell him, what specifics that

5 you thought was a violation?

6 A I told him there were questions about, you know,

7 whether the Saturday meetings were really evaluations of

8 the superintendent. And I said I couldn't be sure,

9 because he did ask why does every agenda show an

10 evaluation of the superintendent in closed session. He

11 had gotten copies of all the other agendas, this said

12 "closed session" there. I said, "I don't know why, but

13 maybe it's a good question."

14 Q With respect to --

15 Let's mark as District Exhibit 2 a copy of a

16 newspaper article written in The Orange County Register

17 dated July 22nd, and as District Exhibit 3 a copy of a

18 newspaper article written in The Orange County Register

19 dated July 27th.

20 (Defendants' Exhibits 2 and 3 were marked.)

21 BY MR. LARSEN:

22 Q Are you familiar with either one of these

23 articles?

24 A I think I wrote them both.

25 Q Did you discuss either one of them -- well,




70



1 let's start with District Exhibit 2. Do you know Tony

2 Saavedra, S-a-a-v-e-d-r-a, or Norberto Santana?

3 A I don't know Norberto Santana. I have talked

4 with Tony Saavedra.

5 Q Did you discuss this article at all with Tony

6 Saavedra?

7 A He called me on it, yes.

8 Q Before or after it was written?

9 A Before.

10 Q And what was said in your discussions with Tony

11 Saavedra about the article?

12 A He asked me if I had been in the meeting, I said

13 no. And he said, "Oh, you weren't in the meeting?" I

14 said, "No, I never attended those meetings." And he

15 asked maybe a few others the questions along those lines,

16 I said I wasn't in the meetings. He said, "Okay."

17 Q Did he tell you why he was calling you?

18 A Why he was calling? He was calling me because

19 he was preparing this story.

20 Q Well, do you have any knowledge as to why he

21 would call you about this story?

22 A Why he would call me about this story?

23 Q Correct.

24 A Because I was a source -- I'd been named in

25 previous stories that he and Sam Miller had written for




71



1 the Register.

2 Q The article says about two-thirds of the way

3 down, "The document also shows the trustees discussed 31

4 items that day that were outside the scope of Fleming's

5 evaluation, such as how to handle the parent of a special

6 education student." Do you see that?

7 A Uh-huh.

8 Q By "uh-huh," you mean yes?

9 A Yes, I see where you're pointing to.

10 Q Okay. Did you discuss that with Mr. Saavedra at

11 all?

12 A No.

13 Q Is the superintendent ultimately responsible for

14 how the parent of a special education student is handled?

15 A I assume so.

16 Q Does the board have a right to hold the

17 superintendent accountable for how the parent of a

18 special education student is handled?

19 A I assume so, yes.

20 Q Let's go to Exhibit 3. Did you discuss this --

21 let me go back, I'm sorry, to Exhibit 2, one follow-up

22 question.

23 After the article came out, did you have any

24 discussions with anyone at the Register concerning the

25 article?




72



1 A After it came out?

2 Q Yes.

3 A No.

4 Q Going to Exhibit 3, did you discuss this article

5 with Sam Miller?

6 A Yes, he called me to tell me that he would be

7 doing a story.

8 Q And what was said in that conversation with Sam

9 Miller about the story he was doing?

10 A He told me that he was going into more detail on

11 the story that had run the previous week, which I

12 think -- well, it was clearly referring to the Saavedra

13 and Santana story.

14 Q And did you discuss that story with him at all?

15 A No. I don't even think -- I don't even think he

16 asked me any questions.

17 Q He was just telling you that he was doing a

18 follow- --

19 A He was doing a follow-up story.

20 Q And after the story came out, did you have any

21 discussions with him?

22 A Yes.

23 Q What was said in those discussions?

24 A I told him I was quite surprised to see Terry

25 Francke's comment that Francke found this the worst




73



1 example of a Brown Act violation in closed session that

2 he had seen in 25 years.

3 Q And why were you surprised about that comment?

4 A Well, it's a -- I think anybody who read a

5 comment like that, it's quite a telling comment by -- I

6 mean, I know Terry Francke from my days at the L.A.

7 Times, I mean, he's an expert on press freedoms, open

8 meeting law, Brown Act, public records, the whole nine

9 yards, and thought that was a pretty -- a pretty

10 interesting conclusion he drew from whatever Sam Miller

11 presented to him.

12 Q Is the superintendent responsible for developing

13 the appropriate school calendar?

14 A Ultimately, yeah, he delegates it every year.

15 Q But he's the one who's ultimately responsible to

16 the trustees for doing that?

17 A Well, that's a funny question, because my

18 recollection is when they sit down to do the parent

19 calendar each year, a trustee or two trustees actually

20 sit in on part of the planning meeting. So, I mean, I'm

21 not 100 percent sure, but I know there's a lot of direct.

22 So in some respects he's responsible, and he's not,

23 because they take -- they almost take direct, you know --

24 a much more direct role in it than they might on some

25 other things.




74



1 Q Well, who else is involved in that planning

2 meeting, is the superintendent involved in it?

3 A He's not in those actual meetings, no, one of

4 his deputies. And in this particular case he brought

5 back a retired employee -- why am I blanking on her

6 name? -- Jackie Price, to be a facilitator between the

7 parents/trustees there and the staff over how to get --

8 over what calendar to come up with.

9 Q Well, who's responsible for establishing that

10 process?

11 A Ultimately, the superintendent.

12 Q And if that process is flawed, who bears the

13 responsibility for the flawed process?

14 A Superintendent. Because they've actually --

15 they've actually discussed -- I remember one -- the

16 calendar, when they switched to the pre-Labor Day

17 calendar, the strange thing is that discussion on that

18 calendar was the subject of probably two very long and

19 vocal public hearings at an open board meeting.

20 Q Lot of criticism of the superintendent for that

21 calendar?

22 A No, not in terms of numbers of parents, but,

23 apparently, in terms of influential parents, yes.

24 Q With respect to advertising on school buses,

25 who's ultimately responsible for making a recommendation




75



1 on advertising on school buses?

2 A I guess the superintendent.

3 Q Who's ultimately responsible in the district for

4 making sure that the No Child Left Behind Act is

5 implemented and complied with?

6 A Superintendent. But I know -- I know of that

7 particular item that I think was on that Saturday

8 meeting, Austin Buffum, the PowerPoint that he presented

9 was actually up on our public Web site at about the same

10 time, so it was -- it's an interesting question of why it

11 was, you know -- why I was allowed to put it up on the

12 Web site.

13 Q Well, there was nothing particularly

14 confidential about the presentation of --

15 A Well, I don't know, I mean, that's --

16 Q You don't actually know what the --

17 A I'm not drawing a conclusion.

18 Q Do you have any idea what the context of the

19 presentation was to the board?

20 A It was a PowerPoint, according to Austin.

21 Q Okay. And --

22 A Because it was discussed at the follow-up

23 cabinet meeting. Austin wanted to know when it should be

24 calendared for open session, because the trustees

25 thought, "Oh, this is a nice presentation, let's put it




76



1 on open session."

2 Q Is the superintendent responsible for the No

3 Child Left Behind implementation?

4 A Well, the elements of No Child Left Behind that

5 affect the district, yes.

6 Q In evaluating him, would it be appropriate for

7 the trustees to have some awareness of what he was going

8 to have to do to comply?

9 A I can't -- I'm not capable of answering that.

10 MR. LARSEN: Just for our record, we'll mark as

11 Exhibit 4 jointly a copy of the complaint and the answer.

12 (Defendants' Exhibit 4 was marked.)

13 BY MR. LARSEN:

14 Q These are documents sent to you by Mr. Lacy?

15 A Correct.

16 Q You also brought with you --

17 Mark as Exhibit 5 a case, says "Westlaw Attached

18 Printing Summer Report for Lacy, Janice," of Leventhal

19 vs. Vista Unified School District.

20 (Defendants' Exhibit 5 was marked.)

21 BY MR. LARSEN:

22 Q Why did you bring that document?

23 A Well, the subpoena says to bring any and all

24 documents I have that relate to Capo Unified, and out of

25 an abundance of caution -- I mean, Mr. Lacy sent this to




77



1 me, and one other case, because he thought I'd be

2 interested in it because they relate to this issue that's

3 being adjudicated, so I -- I mean, I brought it. I

4 mean --

5 Q Did you discuss that case with Mr. Lacy?

6 A No.

7 Q Did he tell you why he was sending it to you?

8 A He thought it would be of interest to me because

9 of the matter of -- the content of it.

10 Q Did he tell you why it would be of interest to

11 you?

12 A Yeah, he said it relates to the topic of

13 closed/open meetings.

14 Q Did he tell you how it related?

15 A No. Well, in fact, on that one I think he said

16 because it's a federal case, it might not relate at all.

17 MR. LARSEN: Mark as Exhibit 6 the case of

18 Duval, D-u-v-a-l, vs. Board of Trustees.

19 (Defendants' Exhibit 6 was marked.)

20 BY MR. LARSEN:

21 Q Is that the other case that Mr. Lacy sent you?

22 A Yes.

23 Q Did you discuss that case at all with Mr. Lacy?

24 A Yes.

25 Q What was said in your discussions with Mr. Lacy




78



1 about that case?

2 A Well, I said to him, I said, "Gee, why don't you

3 send me" -- there's a case that Dr. Fleming always

4 said -- because I raised the issue of the Saturday

5 meetings to Dr. Fleming privately in '02, the spring of

6 '02, when the planning for his Saturday meetings first

7 started to come up in cabinet, because he'd have some

8 issue that he said, "Oh, I don't want this in a public

9 meeting, let's" -- "I'll hold it over to Saturday, hold

10 it over to the Saturday meeting and return to" -- at that

11 time it was Nikki Wheeler who was the -- no, Nikki Kramer

12 who was the board secretary.

13 And I went up to him at one -- after one

14 cabinet, and I said, "Jeez, what are these Saturday

15 meetings? Did we have an all-day public night?" He

16 said, "Oh, no, no, no, they're private, they're closed."

17 I said, "Jeez, how do you" -- he said, "It's for my

18 evaluation." I said, "Jeez," you know. I know how they

19 had done it in San Diego, and I sketched that out to him.

20 He said, "Well, I've been doing this for years, but Dave

21 Larsen gave us a case that shows it's okay." I remember

22 asking him, "Gee, can I see the case?" And he never

23 did -- I never did see the case. He said it was a

24 case -- some case from Sacramento. And then when he told

25 me he was sending me this case in Coalinga -- or Jim Lacy




79



1 said, I said, "Jeez, I wonder if that's the same case

2 that Dr. Fleming was referring to."

3 And it's curious, because before every Saturday

4 meeting, when the agenda would go around cabinet and he'd

5 ask cabinet officers if they wanted to put something on

6 the agenda, because he essentially drove the Saturday

7 agenda, he put all the -- 99 percent of the documents --

8 agenda items on there. The superintendents, like John

9 Casabianca, wanted a discussion once about the laptop

10 program, because it was in his area, Chaparral, and it

11 was going to be expanded, I think, to whatever the middle

12 school -- Ladera Ranch Middle and Ladera Ranch Elementary

13 as well and then to the new one that was open just to the

14 south of Ladera Ranch, the final elementary there. And

15 he says, "I don't want to do that in open session, it'll

16 take too long, we'll do it in closed" -- "in the

17 Saturday." And he said -- and he would look up at all of

18 us and say, "Now, remember, this is okay, because we got

19 this court case. And we don't take any decisions,

20 remember, we don't take any decisions in the Saturday

21 meeting."

22 And in the one that he was planning for this

23 past July, which I guess never took place because he

24 subsequently resigned, but I was still in cabinet when he

25 was putting that together, he mentioned that Sheila




80



1 Benecke was getting pissed off because they were

2 getting -- continued to get criticized even post recall

3 about the way we were funding facilities and criticism

4 that was escalating still about how we used Mello-Roos in

5 the cost of the new office building and why was Newhart

6 adopted, have money for this and that, and she wanted a

7 workshop on facilities funding. And he said -- and he

8 started laughing, he says, you know, "I'm not even sure

9 we can do that in a closed session, I'm not even sure

10 that's legal. But she doesn't want it in open session,

11 so I'm" -- and this is Fleming speaking -- "I'm going to

12 have what's-her-name and Dee Culbertson come in" -- and

13 Culbertson being of Culbertson, Adams, whatever the hell

14 the name of the firm, the land use planning firm the

15 district uses as a consultant, and she happens to be an

16 attorney -- "and she can" -- "then we have

17 attorney-client privilege, and we can have it in closed

18 session."

19 So that's why I was very interested, and I -- to

20 see this suit, because it was also referenced, I think,

21 in one of -- in Sam Miller's story.

22 Q There's some handwriting on the cover page,

23 whose handwriting is that?

24 A Not mine. I don't know. I assume it's -- I

25 don't know. Not my handwriting.




81



1 And this is not my handwriting, for the record,

2 on the other one.

3 MR. LARSEN: Mark as District's Exhibit 7 -- for

4 the record, we made a copy of everything you brought

5 today, except we did not copy the 100th issue of the

6 Capistrano Dispatch, and we did not copy the Capistrano

7 Unified School District comprehensive assessment and

8 accountability report, 2006 edition. Just so you know.

9 (Defendants' Exhibit 7 was marked.)

10 BY MR. LARSEN:

11 Q With respect to the draft response to recall

12 petitioners, is this something you prepared?

13 A I prepared the second page, I did not -- Fleming

14 prepared the top page.

15 Q Did you do this at work, or did you do this on

16 your own time?

17 A I did it on my own time. And the reason why I

18 saved this from way back is because the superintendent

19 states here that I did it over the weekend on my own

20 time, and I wanted this as the fact that I never violated

21 the law, like everybody else in the district.

22 MR. LARSEN: Mark as Exhibit 8 the notice of

23 intention to circulate recall.

24 (Defendants' Exhibit 8 was marked.)

25 BY MR. LARSEN:




82



1 Q Where did you get this document?

2 A This is what was handed out at the board

3 meeting, was it April -- April 26th, whatever the

4 Monday -- the last Monday in April, this was the actual

5 thing that was presented to the board. And because I had

6 to work on answers for the trustees from home, I had this

7 at home so I would have some reference.

8 MR. LARSEN: Mark as Exhibit 9 a special

9 statement by superintendent James A. Fleming relating

10 facts about the district.

11 (Defendants' Exhibit 9 was marked.)

12 BY MR. LARSEN:

13 Q Did you prepare this document?

14 A I prepared it at home, because I wasn't sure if

15 a document like this was allowed to be done on district

16 time, I wasn't sure where it fell on the boundary, and he

17 decided it fell -- it could be worked on in public time,

18 and he sent it out -- had it sent out like we usually

19 send out news releases and such. That's what went out to

20 the media.

21 Q This represents an overview of some of the

22 positive things happening in the district?

23 A Well, there were questions not only that I

24 raised, but some other members of cabinet, over the

25 timing of this and the fact that the items that were




83



1 being pointed out could also be read as direct

2 responses of what the recall people were alleging were

3 deficits in the district. So the superintendent made the

4 call that, no, this was proper, it's a district document,

5 and had me send it out to the media, and I think that he

6 sent it out to his key communicators, his usual e-mail

7 blast.

8 MR. LARSEN: Mark as Exhibit 10 a letter from

9 Mr. Lacy to Dr. Fleming dated April 26, 2005.

10 (Defendants' Exhibit 10 was marked.)

11 BY MR. LARSEN:

12 Q This is a document that you -- what was your

13 purpose in saving this document?

14 A Because, again, this -- I think I used this -- I

15 took it home probably with some other materials on the --

16 to write the trustees' answers. And this was also -- I

17 think superintendent faxed you a copy of this. And

18 that's when he came back to us administrators to pass the

19 word down that "You should use your home e-mails if

20 you're going to do e-mails, and just be real, real

21 careful of what you work on on district time."

22 Q And you did that; is that correct?

23 A I did what?

24 Q You followed that direction, be very careful and

25 not work on political issues on district time.




84



1 A Yes.

2 MR. LARSEN: Mark as District Exhibit 11 a news

3 release, Superintendent Fleming to retire June 2006.

4 (Defendants' Exhibit 11 was marked.)

5 BY MR. LARSEN:

6 Q Is this something that --

7 A This is what he directed me to prepare. I think

8 I referenced this earlier to you. He directed me to

9 start preparing this when I went in to ask him about

10 Eggers being the majordomo of the district communications

11 office during the recall. And this went through many,

12 many drafts, and this was literally the final draft that

13 was going to go out, except if you notice on page 3, at

14 the end, Dr. Fleming expected Dan Crawford and Austin

15 Buffum to announce their resignation simultaneously with

16 his, and I still needed to add material that would be

17 forthcoming from those two people.

18 Q Now, with respect to this news release, you were

19 never authorized to issue it to the press, correct?

20 A Correct.

21 Q And you subsequently had lunch with

22 Mr. Mickadeit and gave it to him?

23 A Correct.

24 Q And why did you give it to Mr. Mickadeit? I

25 mean, what did it have to do with anything other than




85



1 trying to embarrass the superintendent?

2 A It had to do with what -- essentially my

3 answering the lies the superintendent had been telling

4 the media with telling the media something that actually

5 did happen.

6 Q Okay, so what was the lie that he told the media

7 that you were responding to with this Exhibit 11?

8 A Specifically, when he told the L.A. Times that

9 he told me to find another job in June. See, he doesn't

10 know how to lie accurately, because I was gone by June,

11 so he -- if he wanted to lie accurately, he would have

12 said he told me to find another job in May, but he can't

13 even lie correctly.

14 Q Well, so how does this draft press release of

15 November 18th, 2005, relate to him telling you to find

16 another job --

17 A Because --

18 Q -- in --

19 A -- I told --

20 Q Let me finish the question.

21 -- in June 2006?

22 A Because Frank Mickadeit talked to other

23 reporters there, who had already told him that Fleming

24 said I was disgruntled, that I was a jerk, and all of

25 this, and I showed it to Frank saying, "Look what he




86



1 entrusted me to have prepared, and, in fact, he's the one

2 who was ready to quit and wanted to quit in 2005."

3 Q You weren't disgruntled in May of 2006, is that

4 what your testimony is?

5 A No, that's not my testimony.

6 Q You were disgruntled in May 2006, correct?

7 A I was disgruntled over things like the lies and

8 the misdirection, and that's the context in which I

9 presented to Mr. Mickadeit.

10 MR. LARSEN: Mark as Exhibit 12 a biography of

11 James A. Fleming.

12 (Defendants' Exhibit 12 was marked.)

13 BY MR. LARSEN:

14 Q Did you prepare that?

15 A No.

16 Q Why did you --

17 A Well, that was atta- -- that was used in

18 preparing his press release.

19 MR. LARSEN: Mark as Exhibit 13.

20 (Defendants' Exhibit 13 was marked.)

21 BY MR. LARSEN:

22 Q It says "From: DJS," who's DJS?

23 A That's my home e-mail.

24 Q And this was to Sheila Benecke?

25 A Sheila Benecke, home to home, as directed by




87



1 the -- by you.

2 Q So this was just part of your communications

3 with her --

4 A Well, she --

5 Q -- on your own time?

6 A She specifically -- I was actually directed by

7 Dr. Fleming to do it, but as I say, I did it from home.

8 She -- they couldn't understand -- the Registrar of

9 Voters had given us information that no one else had

10 during the counting of the recall. The snap count, where

11 they do the 5 percent determine, he told everybody the 5

12 percent showed that they had to do a full count. But

13 what he told us was it showed that one trustee was

14 already free and clear, although he did not tell us

15 which -- did not tell Susan McGill which trustee. And he

16 said that the other trustees, their snap count barely was

17 enough to force a full recount.

18 And Austin Buffum, who had taken several

19 graduate-level courses in statistics, because he had just

20 gotten his Ph.D., figured very quickly that it would be

21 very hard for the full count to result in a validation of

22 the petitions for a special election. And I was asked to

23 go through the -- numerically to show -- to try to

24 explain to the trustees.

25 I had had lunch with the two trustees in




88



1 San Diego during the annual California School Boards

2 Association meeting on a Saturday, and Sheila Benecke

3 said she was still confused, and subsequently I wrote

4 this e-mail. And I still had it because -- I never

5 trashed this because I don't think I could have ever

6 recreated it.

7 MR. LARSEN: Mark as Exhibit 14, apparently from

8 Shelia Henness to --

9 THE WITNESS: To me.

10 MR. LARSEN: -- to DJS.

11 (Defendants' Exhibit 14 was marked.)

12 BY MR. LARSEN:

13 Q This is an e-mail you saved?

14 A Yeah. And the reason I save it was she was

15 thanking me for all the support. But I also saved it

16 because she referred to Marlene Draper in this e-mail as

17 "the midget flogger," who told me everything --

18 crystallized everything I already knew about how the

19 trustees weren't all hale and hearty friends and

20 acquaintances.

21 MR. LARSEN: Mark as District Exhibit 15

22 statement from CUSD board of trustees regarding failure

23 of recall drive.

24 (Defendants' Exhibit 15 was marked.)

25 THE WITNESS: Right. And there's an attachment




89



1 that --

2 BY MR. LARSEN:

3 Q Statement by --

4 A Statement by superintendent.

5 Q Is this something you drafted?

6 A I drafted it at home and subsequently got the

7 approval that, you know, this was legitimate and put it

8 out -- actually, I'm not -- I would have thought that the

9 date was actually December 23rd, but it must have been

10 the 22nd that we learned the recall had failed, because

11 of the exhibit -- because of the two press releases that

12 went out.

13 MR. LARSEN: Exhibit 16, this is a press release

14 from Mr., apparently Tom --

15 THE WITNESS: Tom --

16 MR. LARSEN: -- Russell.

17 THE WITNESS: -- Russell.

18 (Defendants' Exhibit 16 was marked.)

19 BY MR. LARSEN:

20 Q And what was your purpose in saving this

21 document?

22 A I had taken it home, I think, that night to work

23 on a draft of, you know, points to -- the superintendent

24 might want to make, because we got calls from the media

25 after this was released. And I think the attached thing,




90



1 the next thing, dated March 1st, I think I probably wrote

2 that -- worked that draft up that night and gave it to

3 him the next morning.

4 MR. LARSEN: We'll mark as Exhibit 17 --

5 THE WITNESS: Which one are you on now?

6 MR. LARSEN: 17 you referred to as the

7 attached --

8 THE WITNESS: I'm sorry, this is --

9 MR. LARSEN: Exhibit 17.

10 (Defendants' Exhibit 17 was marked.)

11 BY MR. LARSEN:

12 Q This is what you worked up that night to give

13 the superintendent as a possible response in case members

14 of the press should call and ask about the --

15 A Then he had me make the points myself the next

16 day.

17 Q So Exhibit 17 was your suggested response to the

18 superintendent to Exhibit 16?

19 A Yeah, but I think -- except I think the Register

20 he might have talked to himself, but I think I actually

21 talked to the other reporters and made the points, not

22 Dr. Fleming. That would be the only thing I'm not

23 certain on.

24 MR. LARSEN: Okay, mark as Exhibit 18,

25 apparently, a letter from you to Dr. Fleming dated




91



1 May 23.

2 (Defendants' Exhibit 18 was marked.)

3 BY MR. LARSEN:

4 Q This is your letter of resignation?

5 A Correct.

6 MR. LACY: I'm sorry, is this 18?

7 MR. LARSEN: Yeah.

8 MR. LARSEN: Mark as District Exhibit 19 a

9 letter that you brought.

10 (Defendants' Exhibit 19 was marked.)

11 BY MR. LARSEN:

12 Q This is Fleming's response to your resignation?

13 A Correct.

14 MR. LARSEN: Mark as Exhibit 20 a cartoon, some

15 writing on it, "Dave - We know how you feel! Good

16 luck!!"

17 (Defendants' Exhibit 20 was marked.)

18 BY MR. LARSEN:

19 Q Who did you receive this from?

20 A I don't know. It was on my desk the day before

21 my final day.

22 MR. LACY: I'm sorry, did I didn't hear the

23 answer.

24 (Record read.)

25 BY MR. LARSEN:




92



1 Q Other than the list that you typed up after your

2 visit to the Registrar of Voters' office, did you ever

3 make any other lists that related to individuals on the

4 recall?

5 A No.

6 Q Do you know who had made such a list?

7 A I don't know if such a list -- subsequent to the

8 re- -- subsequent to that list?

9 Q No, at any time, do you know of anyone who made

10 a list -- you've referred to a hit list or an enemies'

11 list; do you know who made that list?

12 A I have a strong suspicion, but I don't know for

13 sure.

14 Q Well, what is your suspicion?

15 A That it was made by Kate McIntyre.

16 Q And what do you base that suspicion on?

17 A The fact that the fonts of the three XLs, to my

18 eye, look like they were created on a MAC, and she was

19 the only person in the superintendent's suite that had a

20 MAC. No one would have put those lists together without

21 a direct order from Dr. Fleming, because at a minimum, it

22 would have required 10 to 12 hours to go into the

23 specialized district database, extract the information,

24 put it into a separate spreadsheet. She also had two

25 computers in her office, which would make doing something




93



1 like that easier. And the fact that it was done from the

2 Murphy e-mail and the fact that one of his e-mail blasts

3 that was sent that weekend -- and she used to be in his

4 office every weekend working with him, and he was doing

5 an incredible amount of work that weekend before the

6 April board meeting, when the petitions were served. He

7 sent out an e-mail blast that referenced Murphy's e-mail

8 as a -- if I remember, the -- and I'm quoting from

9 memory, but as a veritable who's-who of recall

10 proponents.

11 And, granted, it's very circumstantial, but I

12 just -- there's nobody in the district who would have

13 prepared that without being directed to do so by

14 Dr. Fleming.

15 Q Do you know when it was prepared?

16 A Well, it would have had to have been prepared

17 before the second week of May, because --

18 Q And why do you conclude that?

19 A Because when Kevin Murphy's public records

20 request came in, I was given the recall folder file out

21 of Dr. Fleming's office, and that's where the list

22 that -- that's where I saw the list for the first and

23 only time.

24 Q And what did you do with the list after you saw

25 it?




94



1 A I called you, because in the same packet was

2 the -- Kovac's confidential, and you advised me that

3 those are public documents. I told Dr. Fleming that our

4 counsel had said they were public documents, and

5 Dr. Fleming said, "That's fine. I don't always take the

6 advice of counsel, I take it into consideration." He

7 said, "Absolutely not." So I had a complete set of

8 everything, had already been copied, and I withheld those

9 documents, as told by Dr. Fleming, and the rest I gave to

10 Kevin Murphy.

11 Q Then you took your set home?

12 A Uh-huh.

13 Q By "uh-huh," you mean yes?

14 A Yes.

15 MR. LARSEN: All right, I have no further

16 questions at this time.

17 Do you want to take a short break?

18 MR. LACY: Yeah, why don't we take a short break

19 and come back. I do think, however, that because of the

20 time, we probably are going to want to take a lunch break

21 at some point.

22 MR. LARSEN: Why don't we go off the record.

23 MR. LACY: Okay.

24 (Discussion off the record.)

25 (Recess.)




95



1 EXAMINATION

2 BY MR. LACY:

3 Q Mr. Smollar, you and I have never met before

4 today, have we?

5 A No.

6 Q And, in fact, you and I had really never even

7 talked with each other until you called me, as you've

8 already earlier testified, after you received the

9 deposition --

10 A Correct.

11 Q -- subpoena, correct?

12 A That's correct. However, to be fair, I've

13 corresponded with you over your record --

14 Q We'll elaborate on that.

15 A Okay.

16 Q We have exchanged correspondence, have we

17 not?

18 A Yes.

19 Q And in what circumstances have we exchanged

20 correspondence?

21 A You filed two or three public records requests

22 on behalf of the -- of recall people, I'm not sure

23 exactly who they were, but for proponents of the

24 recall.

25 Q And you responded to them on behalf of the




96



1 district?

2 A On behalf of the district, I responded to

3 those --

4 Q Why did you respond, as opposed to someone else

5 in the district?

6 A As the director of communications, it's not

7 written into the -- I don't think it's written in the job

8 description that they have in the personnel office, but

9 that ipso or ipso facto is part of the duties when a

10 public records request comes in, the initial reply, if

11 there needs to be a lot of work to gather together, comes

12 from me within ten days, or if Fleming directs quicker, I

13 just try to get it from whoever has the documents, and

14 then prepare the response.

15 Q Yeah, I noted when you testified earlier on what

16 your duties were at CUSD, you gave a list of different

17 activities, including press releases, but you didn't

18 mention in that description that you responded to

19 California Public Record Act requests; do you know what

20 the California Public Record Act is?

21 A Yes.

22 Q And so is it your testimony that it was your

23 responsibility to find documents within the district and

24 prepare responses --

25 A Basically --




97



1 Q -- to requests?

2 A -- yes.

3 Q In preparing those responses, did you work with

4 any other employees or professionals of the district?

5 A Depending on what the request called for, it

6 could be almost anybody in the district who would be the

7 source of those documents.

8 Q I'm talking about in preparing a response on

9 behalf of the district. Did you work with Mr. Larsen,

10 for example, on occasion?

11 A I think a couple of times I did get wording from

12 Mr. Larsen for responses sometimes, but most of the time

13 it would be sort of standard boilerplate wording, I mean,

14 very laconic, you know, very dispassionate, and then

15 Fleming would -- Dr. Fleming would sign off on it, and I

16 would use that. But sometimes -- and, again, I --

17 they're episodic, but there were so many records requests

18 in that nine-month period, that I can't -- I can't even

19 remember what your requests were about.

20 Q You understand that the ground rules for this

21 deposition that were given to you earlier by Mr. Larsen

22 continue to apply and that your answers must be

23 truthful --

24 A Yes.

25 Q -- correct?




98



1 A Yes.

2 Q I'd like to ask you a series of questions about

3 your education and professional background. You

4 testified that you had a series of jobs, but, first of

5 all, where did you go to high school?

6 A Okay. This is rel- -- okay, I guess I can --

7 Pt. Loma High School in San Diego, California.

8 Q Any academic credentials or honors?

9 A From the high school? I think I was -- back

10 then they had California Interscholastic Federation, a

11 gold seal, and you got a signed seal from the governor,

12 and I have a signed seal to my academic prowess from

13 Governor Ronald Reagan, which is his real signature.

14 Q Were you a good student?

15 A I was a very good student.

16 Q Where did you go to college?

17 A Undergraduate I went to Harvard College.

18 Q Harvard College in --

19 A Cambridge, Massachusetts.

20 Q -- in Cambridge, Massachusetts?

21 Did you go on there on scholarship, or did you

22 there --

23 A I went there on a national Harvard scholarship,

24 which was more recognition of your academic achievement

25 and not so much money, it was only, like, $1,000 a year,




99



1 which even then was not nearly enough to cover the

2 tuition and other costs.

3 Q What did you study at Harvard University?

4 A My undergraduate major was American history.

5 Q Did you take any journalism courses while you

6 were at Harvard?

7 A Harvard does not offer any journalism classes.

8 They have writing classes, and I took a fair number of

9 expository and English classes.

10 Q And how did you do in those classes

11 academically?

12 A I did very well.

13 Q Did you receive any academic honors or awards

14 while you were at Harvard?

15 A I received a historic Deerfield fellowship

16 between my junior and senior year for studies in

17 colonial history in Western Massachusetts in the

18 so-called Connecticut Valley area, Pioneer Valley

19 sometimes they call it as well. And then I graduated

20 with honors.

21 Q What does graduating with honors from Harvard

22 mean?

23 A Means your father paid -- your father paid

24 tuition all four years. I'm sorry.

25 MR. LACY: Strike the response as nonresponsive,




100



1 please.

2 THE WITNESS: It means that you completed all

3 your courses, all your courses in major, correctly, and

4 that you wrote a senior thesis on a specific topic of

5 American history.

6 BY MR. LACY:

7 Q And at what grade level would you have to be to

8 graduate with honors?

9 A You have to be, I guess, roughly a 3.5 to 4.

10 Q What would the standing in your class be to have

11 a 3.5 and graduate with the honors, would it be in the

12 top half of the class at Harvard University?

13 A Maybe the top -- top fifth to top fourth, top 20

14 percent.

15 Q Top 20 percent. So you're a top-20-percent

16 graduate of Harvard University?

17 A Harvard -- I do make the distinction, Harvard

18 College, because the undergraduate is the college.

19 Q You went to Harvard College and graduated in the

20 top 20 percent?

21 A Yeah.

22 Q What did you do after Harvard?

23 A Actually, I had a summer job at the Los Angeles

24 Times and liked it. I mean, I worked as an intern in the

25 editorial pages, and I was actually lining up op ed




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1 contributors. Op ed pages were fairly new in the

2 mid-'70s, and I was lining up contributors, you know,

3 academics from around the country, to write on various

4 things. I remember getting -- my editor there had also

5 gone to Harvard and was a great fan of Paul Freund, who

6 was a longtime Harvard constitutional law scholar, and we

7 got Paul Freund to write an op ed piece.

8 Anyways, I was accepted into the UCLA Ph.D.

9 program in history. After my first year in UCLA, I went

10 back to the L.A. Times at a little bit higher intern

11 position the second year and liked it and said, "Is

12 there a way to" -- "I want to become a full-time

13 reporter." So I left UCLA program, I spent a couple

14 months at the L.A. Times, and I got a full-time job at

15 the Honolulu newspaper, the Advertiser, in Honolulu,

16 Hawaii.

17 Q So you did some work there?

18 A About two and a half years.

19 Q Okay. Now, you testified you were director of

20 media relations for California State University at

21 Long Beach.

22 A Correct.

23 Q And how did you come to -- well, strike that.

24 How did you learn about that job opening?

25 A I saw an ad in the L.A. Times classified.




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1 Q So it was a competitive job?

2 A Yes.

3 Q And do you recall at the time how many

4 individuals applied for the job?

5 A I wouldn't know. I mean, you go through an

6 initial interview process where however many people apply

7 and get vetted by the personnel department, those are all

8 lined up for interviews, and then you subsequently come

9 back. If you're chosen, maybe four or five are

10 subsequently interviewed by the president of the

11 university.

12 Q Okay. And you were, in fact, chosen in that

13 competition for that job?

14 A Correct.

15 Q And at California State University, San

16 Marcos --

17 A Yes.

18 Q -- how did you learn about that job?

19 A Through the internal postings of the Cal State,

20 where they post all their job listings.

21 Q Was that also a competitive job?

22 A Yes.

23 Q Are you aware of how many individuals applied

24 for that job?

25 A Actually, I do. There were 26 people.




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1 Q 26 people?

2 A Yeah.

3 Q So you competed against 26 people for --

4 A 25.

5 Q -- 25 people, and you were selected?

6 A Yeah, again, it was a two-stage process.

7 Q Uh-huh.

8 And how did you find out about the job at

9 SDUSD?

10 A San Diego Unified School District.

11 Q Yes.

12 A Again, through -- that was a classified ad in

13 the San Diego Union.

14 Q Was that also a competitive job?

15 A Yes.

16 Q Do you have any idea of how many other people

17 you competed against for that job?

18 A I think there were about a dozen.

19 Q About 12 people?

20 A Yeah.

21 Q And you were selected for that --

22 A Yeah.

23 Q -- position --

24 A Again, a two-stage process.

25 Q Okay. You mentioned something about a cabinet




104



1 in connection with the Capistrano Unified School

2 District, what is the cabinet?

3 A It's a grouping of Dr. Fleming's administrators

4 who meet -- who met regularly every Tuesday, and

5 sometimes there were other meetings scheduled with

6 Dr. Fleming Tuesday mornings for two to three hours, and

7 talked about from soup to nuts about the district.

8 Q And who were members of this cabinet

9 specifically?

10 A Well, I mean, it would change as people --

11 basically, there's always the deputy superintendent of

12 education, the deputy superintendent for personnel, the

13 deputy superintendent for support services, the deputy

14 superintendent for facilities planning. And some of

15 these were associates -- superintendents and titles

16 changed, but the same function. His special assistant,

17 Kate McIntyre. The board operation -- the manager of

18 board operations, either Nikki Kramer, she retired,

19 Heather Wheeler. The deputy superintendent for

20 intergovernmental affairs. The executive director and/or

21 assistant superintendent for special education. Myself,

22 the director of communications. And then over time it

23 expanded to include executive directors of education,

24 secondary and elementary, and then it expanded to also

25 include an executive director of administration and --




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1 and so it would be, you know, from nine to 13 people

2 there --

3 Q Right.

4 A -- more or less.

5 Q Now, I'm going to use the term "closed session,"

6 and when I say "closed session," I'm referring to a

7 closed session that has been publicly agendized

8 consistent with the Brown Act. Do you understand my

9 question?

10 A Yes.

11 Q Or do you understand my statement?

12 A Yeah. Yeah.

13 Q Have you ever attended a closed session of

14 the --

15 A Yes.

16 Q -- Capistrano Unified School District?

17 A Yes.

18 Q When did you attend a closed session?

19 A I attended some closed sessions early in my

20 tenure there, which would have been -- I started late

21 January of '02, so in late winter, early spring.

22 Q How many closed sessions did you attend?

23 A I might have attended four or five.

24 Q Why did you attend those sessions, to your

25 knowledge?




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1 A Basically, I -- at first I remember Marge LaRoe,

2 who was then the -- now retired -- the deputy

3 superintendent for intergovernmental affairs, and she

4 came -- I still remember this, she came around to my

5 office at about -- just before 6:00 the first time, it

6 would have been March -- February or March, and said,

7 "Hurry up, you gotta be in closed session." I said,

8 "Well, we don't go to closed session." She said, "Yeah,

9 we all do." And I was referencing from my San Diego

10 experience, where closed session was the five board

11 members, the superintendent, and one of the district's

12 legal counsel -- they were in house -- and you might be

13 called in if there's a specific question that needed

14 answering, then you left. Says, "Oh, no, we sit in, it's

15 everybody."

16 So I went in, and indeed it was -- I mean, all

17 the chairs are filled around the cabinet room, it's the

18 whole cabinet. And in addition to cabinet there's --

19 sometimes I remember at least one time there was

20 Mr. Larsen, because he was there to brief them

21 specifically on some case or an employee --

22 Q Just to clarify, your testimony is that of the

23 three or four closed sessions you personally attended,

24 Mr. Larsen attended at least one?

25 A For part of it. He would come in -- he was in




107



1 there specifically to brief them on an issue that was,

2 you know, either -- it was either a suit or the

3 negotiations, and then he would leave.

4 Q To your knowledge, was it a routine practice for

5 the district to include a lawyer in its closed-session

6 meetings?

7 A I'm not sure I understand that.

8 Q To your knowledge, would a lawyer for the

9 district regularly attend closed-session meetings?

10 A No.

11 Q Do you have any understanding why a lawyer

12 wouldn't be attending closed-session meetings on a

13 regular basis at the district?

14 A No.

15 Q Earlier in your deposition today you made a

16 statement about concern about closed sessions at the

17 district, and you used the word "problematical"; do you

18 recall that testimony earlier today?

19 A Yes.

20 Q What did you mean by the word "problematical"?

21 A Well, based on what I knew about the Brown Act

22 and about what we were advised and what Cal State

23 trustees, when we would -- because they met in

24 Long Beach, the Cal -- the state university trustees, and

25 particularly at San Diego Unified, and also I covered




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1 San Diego Unified for the L.A. Times, that discussions in

2 the, you know, four or five closed sessions that I

3 attended, I mean, there would be, you know, discussion of

4 a legal case, or there might be a parent, you know,

5 appealing on a suspension. But then Dr. Fleming would

6 run down, you know, the expected to be a rough meeting

7 today and, you know, who might be attending and whether

8 it be opposition and how he was going to frame the

9 questions. And the board a lot of times would indicate,

10 at least the -- you know, the closed session I was in,

11 you know, they would indicate what questions they might

12 or might not ask, because we would have a cabinet

13 meeting -- on every board night we would have a cabinet

14 meeting at 3:30, and that was specifically for

15 Dr. Fleming to go around the table and ask anyone in

16 cabinet if they've had a call from a trustee about

17 anything on the agenda. And if, say, Crystal

18 Kochendorfer called and had, you know, ten questions on

19 one item, he might try to -- you know, he said -- you

20 know, he wanted to know -- he wanted to know all of that.

21 And I do remember at least in one session where

22 they finished about, you know, a quarter to 7:00 and

23 still were kibitzing, because there's food in there, and

24 it was dinnertime for the people as well. He turned to

25 Crystal and said, "You're really not going to ask all




109



1 those questions today." And she, "No, no, no, no, no,

2 I'll only ask one or two." I mean, it was -- so there

3 were things that quickly that I just was very

4 uncomfortable with. Coupled with the fact that he had

5 already started planning the first Saturday session,

6 while I had been there, for that spring, and in the

7 cabinet he -- you know, he was saying, "Well, we're going

8 to put this on the agenda, that on the agenda" --

9 Q I'd like --

10 A -- it was --

11 Q -- to get --

12 A -- strange.

13 Q -- a little more specific on this meeting where

14 there was the discussion between Trustee Crystal

15 Kochendorfer and James Fleming. Do you have a

16 recollection of the date of that meeting that you just

17 testified to?

18 A No. It would have been -- it would have been in

19 late winter -- late winter or early spring of '02.

20 Q Now, I believe from what you've testified, my

21 understanding is what you're testifying to right now, is

22 that you're referring to a closed session that happened

23 before an open session; is that correct?

24 A Yeah. I mean, it was a 6- -- yeah, the 6:00

25 session before the 7:00 open session.




110



1 Q What's the difference between a closed session

2 and an open session?

3 A Well, it's the definition in the Brown Act, that

4 you can only basically discuss issues of personnel or

5 pending legal matters in a closed session, and otherwise,

6 things have to be discussed in an open session. I mean,

7 the basic division.

8 Q Now, in this exchange from between Trustee

9 Kochendorfer and Fleming in the closed session, do I take

10 it it was your impression that they were attempting to

11 orchestrate activity in closed session for the later open

12 session?

13 MR. LARSEN: I'm going to object it calls for

14 speculation.

15 THE WITNESS: I --

16 BY MR. LACY:

17 Q You can answer the question.

18 A I mean, it's -- they weren't -- I mean, they

19 weren't sitting around the table, you know, calculating

20 it, but it was an easy -- I mean, they break into

21 informal conversations. But they're still in closed

22 session. And, I mean, I remember Dr. Fleming reaching

23 over --

24 Q Well, let me stop you there.

25 A Yeah.




111



1 Q In any of the meetings you witnessed in the

2 closed sessions, was there ever any discussion of topics

3 agendized for the subsequent open session that night?

4 A Yes.

5 Q Can you elaborate?

6 A Well, he discussed in a sense that -- you know,

7 and I can't remember the specific topic -- "Well, topic

8 A, we think we're going to have four speakers, and I

9 might put this topic before" -- "I might rearrange the

10 agenda, because this will go quicker than this other

11 topic," so they could switch it around, and he'd tell the

12 board president, "I'm going to ask you permission to

13 rearrange the topics."

14 And the thing with Crystal Kochendorfer, I mean,

15 it was, like, kibitzing, he reaches for a sandwich and

16 says, "Crystal, you're not really going to spend all this

17 time asking ten questions on this, are you?"

18 "No, no, no, Jim, I'll just ask one or two for

19 the public record, but I've already gotten the answer

20 that I want." In that sense, it's orchestrated, but

21 it's --

22 Q You've answered the question.

23 A Okay.

24 Q In that particular meeting was there a lawyer

25 present in the room?




112



1 A No.

2 Q You testified earlier about Fleming urging you

3 to attend a meeting because that meeting was the seat of

4 power. What did you mean --

5 A Well, what he --

6 Q What exactly was your impression of what Fleming

7 meant by "seat of power"?

8 A Well, I think -- I mean, I'm certain what he

9 meant, and this is certainly how I, you know, received

10 it, is he was a bit incredulous that a communications

11 director would not want to be privy to every innermost

12 secret of what was going on with the administration,

13 because information is power. And he said -- he said,

14 "I've never had a communications director in all my years

15 who didn't want to be in all of the closed sessions and

16 hear, you know, all the stuff that was going on." I

17 mean, I -- I mean, that's what I think he meant by it.

18 That's certainly how I took it.

19 Q At Capistrano Unified School District were

20 closed sessions the seat of power?

21 MR. LARSEN: I'll object it calls for

22 speculation, it's vague and ambiguous.

23 THE WITNESS: It's -- I mean, my common sense

24 would say yes, but -- I mean, my common sense would say

25 yes.




113



1 BY MR. LACY:

2 Q You testified --

3 MR. LARSEN: Further object on lack of

4 foundation, it's clearly speculative.

5 THE WITNESS: Are you going to withdraw?

6 BY MR. LACY:

7 Q You earlier testified that you didn't feel that

8 you were receiving -- I'm paraphrasing, but you testified

9 earlier that you felt you were not receiving truthful

10 information from Superintendent Fleming; what did you

11 mean by that?

12 A Well, I can cite you one, you know, additional

13 specific, in addition to what we've already plowed the

14 ground on, where he didn't -- he falsely characterized

15 the Eggers material to me. But for -- the new office

16 building had been planned and the financing arranged

17 before I became communications director, and there were a

18 couple times where you had to talk to the press about it

19 and all that. And he had always told me consistently,

20 you know, it was being financed by redevelopment bond

21 money from San Juan Capistrano, the money could only be

22 used to construct, you know, facilities built in

23 San Juan, there was no other money. And, I mean, I put

24 that litany out, you know, several times. And only after

25 the recall was underway and there was a public




114



1 information request, I think actually by Sam Miller of

2 the Register, and I went to -- had to dig out these

3 documents did I learn that, in fact, there was a lot of

4 Mello-Roos money involved in the financing. And the

5 importance of that politically or communication-wise is

6 that Mello-Roos money can be used for a lot of other

7 things, lease payments, I mean, it can be used -- and it

8 doesn't necessarily have to be used in San Juan

9 Capistrano. And it was almost, like, half the total

10 cost.

11 And I remember going to Dr. Fleming, saying,

12 "Jeez." He said, "Well, isn't that true? Well, ask Dave

13 Doomey." So I went to ask Dave Doomey. And Dave Doomey

14 would always say, "Well, I've never said that." I said,

15 "Dave, you read what we send out all the time on there,

16 you review it. What's going on here?" It goes to my

17 credibility. You know, the superintendent may be the

18 chief executive officer, but, you know, my credibility --

19 because I've worked on the other side, and when you're a

20 reporter for a newspaper and you find that the PIO or the

21 PAC or whatever you want to call them, he or she, is

22 giving you bogus information, deliberately or not, you

23 lose all faith in that person, you don't want to deal

24 with that person.

25 Q In that case, do you feel that Fleming lied to




115



1 you?

2 A Yes.

3 Q Did Fleming have any other occasion to lie to

4 you?

5 A Yeah, about his total remuneration in '03-'04.

6 He didn't lie to me, but he lied to Sam Miller about the

7 veracity of minutes of the board meeting of April of

8 2006. I mean, there are -- and there's probably more if

9 I could recollect.

10 Q All right, well --

11 A And some --

12 Q We'll leave it for --

13 A Okay.

14 Q We need to move on. But I think we've

15 established what we want to establish there.

16 In your opinion, were you ever -- strike that.

17 Were the trustees truthful with you, in your

18 experience?

19 A Some.

20 Q Were there any trustees who were not truthful

21 with you?

22 A Yes.

23 MR. LARSEN: Just object on the grounds of

24 relevance.

25 BY MR. LACY:




116



1 Q Who were the trustees who were untruthful?

2 MR. LARSEN: I'll just object on the grounds of

3 relevance.

4 BY MR. LACY:

5 Q You can answer.

6 MR. LARSEN: If the trustee told him it was

7 raining in Spain and it wasn't, what relevance does that

8 have?

9 BY MR. LACY:

10 Q You can answer the question. Just ignore that.

11 A What was the question?

12 Q Who were the trustees who were untruthful?

13 A Well, in a couple of instances, Marlene Draper.

14 Q How was she untruthful?

15 A She was untruthful in -- during the recall in

16 telling me that Mike Eggers had nothing to do with the

17 recall, with my portion of it, that he was only the PAC.

18 And that was told to me at her house, because I was

19 ordered, along with my Web master, to go over there

20 shortly after the recall. I had to do it on my lunchtime

21 so it wouldn't be district time.

22 Q Excuse me.

23 So Marlene Draper led you to believe that Mike

24 Eggers was only employed by a political action committee?

25 A Or that -- well, no, that he would only be




117



1 dealing with political action committee activities and

2 not anything to do with the communications department.

3 Q What was your understanding of who Eggers was

4 employed by?

5 A My understanding at that time, he was employed

6 by the Kids First PAC that the trustees --

7 Q I see.

8 A -- were funding.

9 Q Did there come a time when he was employed by

10 the district?

11 A Yes. Well, employed, he had a --

12 Q Contract?

13 A He may still have -- yeah, a consul- -- well,

14 funny, he never actually had a contract, was never

15 approved by the board, he just submitted --

16 Q Well, just --

17 A Yeah.

18 Q -- so I understand it, so Marlene Draper

19 indicated to you or stated to you that Mike Eggers was

20 employed by a political action committee that opposed the

21 recall?

22 A Yes.

23 Q And there came a time, to your knowledge, that

24 Mike Eggers was employed by the district; is that

25 correct?




118



1 A What do you -- well, that -- I want to be -- I

2 want to be truthful. I mean, the -- employed, if you

3 mean as a consultant, probably --

4 Q Compensated.

5 A Compensated, okay, yes. But he's not an

6 employee of the district.

7 Q Now, was he compensated by the district

8 subsequent to working for the recall --

9 A Yes.

10 Q -- political action committee?

11 A Yes.

12 Q Are you aware of any press reports -- strike

13 that.

14 MR. LACKEY: Can I take a break?

15 MR. LACY: Sure, let's take five minutes.

16 (Recess.)

17 BY MR. LACY:

18 Q So we've already established that you know who

19 Mike Eggers is, correct?

20 A Yes.

21 Q And you've worked with him?

22 A No, I have not worked with him.

23 Q You haven't worked directly with him, but you

24 know that he worked for the district?

25 A Yes.




119



1 Q Okay. Have individuals at the district ever

2 talked to you about Mike Eggers?

3 A Yes.

4 Q Are you aware of a news report of a drunken

5 driving incident involving Mike Eggers?

6 A Yes.

7 Q What's your knowledge of that report?

8 A That he was arrested for drunk driving, going

9 down the wrong side of I-5. And I know he subsequently

10 lost his position as a columnist for the Capistrano

11 Dispatch, but I don't know what the judicial outcome was

12 of it.

13 Q Do you know when that drunk driving incident

14 occurred, roughly?

15 A I think it was bef- -- well, it would have been

16 before -- before the recall.

17 Q It was before the recall?

18 A Yeah.

19 Q So that would have been before he was employed

20 by the political action committee for the recall, to your

21 knowledge?

22 A Yes. I recall Dr. Fleming telling me that, you

23 know -- because Dr. Fleming, at least in the

24 representations he made to me, was very unhappy to have

25 Mike Eggers around, particularly after the -- Eggers went




120



1 around -- was going around saying he was going to do a

2 strategic analysis of the district. But Mike Eggers

3 said -- it was shared by Mike Darnold, who's a trustee,

4 who's very much into alcohol and drug counseling, and

5 that's what he does for a living, and works with troubled

6 teenagers, felt very strongly that, you know, Eggers

7 deserved a second chance.

8 Q Have you met David Larsen before today?

9 A Oh, yes.

10 Q And in what capacity do you know him?

11 A As the district's general counsel? I guess

12 that's -- I -- I mean, he's legal counsel, but I know

13 there are other attorneys who handle special ed and

14 other -- land units, but he's our general, day-to-day

15 attorney for the district.

16 Q Have you ever discussed plaintiff Ron Lackey

17 with Mr. Larsen?

18 A I might have in some connection, but I don't

19 recall.

20 Q Have you ever discussed plaintiff Ron Lackey

21 with Mike Darnold?

22 A Yes.

23 Q When?

24 A Oh, it was probably after one board meeting

25 where Dr. Lackey was particularly nettlesome and, you




121



1 know, I think not only Darnold but other board members

2 just expressed, you know, "Isn't there anything we can

3 do?" I mean, frustration on the part of the trustees, but

4 "Isn't there something we can do about that guy?" that

5 type of trust- -- I mean, he's not the only trustee who

6 expressed that.

7 Q Have you ever discussed anything else with Mike

8 Darnold and Ron Lackey?

9 A No.

10 Q Have you ever discussed Ron Lackey with Marlene

11 Draper?

12 A Yes.

13 Q When?

14 A Dr. Fleming had me prepare -- I think we

15 referenced it to Mr. Larsen, about the PowerPoint --

16 about Ron Lackey and the hearing -- maybe we didn't. Ron

17 Lackey had a hearing before an administrative judge in

18 Sacramento about whether he could be -- he was -- as I

19 understand it, he was upset that he was no longer being

20 used by the McGeorge School of Law as a facilitator or

21 something in special ed, or the state department of ed or

22 whatever. And he appealed that, and he lost that appeal

23 hearing. And Susan Roice provided to Doreen Lohnes, to

24 me, to Dr. Fleming -- or Dr. Fleming to me the transcript

25 of hearing, and that became the basis of an agenda item




122



1 on Dr. Lackey that Dr. Fleming presented, I guess

2 probably in early 2005, and that was -- that was what

3 sparked off --

4 Q Let me stop you there.

5 A Yeah.

6 Q What do you mean by "agenda item"?

7 A Well, it was a -- it was an actual agenda item

8 about Dr. Lackey.

9 Q By that, do you mean an agenda item for an

10 open-session meeting --

11 A Yes.

12 Q -- of the board of trustees?

13 A Yeah. Dr. Lackey had asked for something to be

14 on an agenda, so there was an agenda item that said

15 "Concerning Ron Lackey" he had requested. And I think I

16 did call Dave Larsen, say, "Dr. Fleming says we can

17 ignore this." I said, "Dave, I don't think we can ignore

18 it." And Dave Larsen said, "No, you can," read me

19 whatever the portion is in the ed code or the Government

20 Code that said Dr. Lackey wanted an agenda item.

21 And I'm not mistaken, I think -- and this is

22 what I was going to say, is Dr. Lackey was alleging that

23 there was an FBI investigation of the district. And I

24 had called the regional public information officer for

25 the FBI in West Los Angeles, a woman whose name I can't




123



1 remember, and she categorically denied it, said, "There's

2 nothing you would know," but she wouldn't go on the

3 record, and we couldn't use it. But that information

4 that there was none was enough for Dr. Fleming to want to

5 hit back very hard at Dr. Lackey for continuing to raise

6 this bogus FBI investigation charge, and the vehicle to

7 do this was the hearing officer's conclusions from this

8 administrative hearing by the State Department of

9 Education.

10 Q All right, let me stop you there.

11 Now, by "bogus charge," in saying that, are you

12 implying that Dr. Lackey knew that the charge was bogus?

13 A Well, it calls for a conclusion on my part,

14 but --

15 Q Well, I'm asking for facts. Do you have any

16 facts to suggest that Dr. Lackey knew that the charge was

17 bogus?

18 A I think Dr. Lackey should have known it was

19 bogus, because the FBI would not get involved in special

20 education. If it got to the federal level, it would be

21 the Office of Civil Rights and not the FBI. So I think

22 Dr. Lackey should have known that --

23 Q Well, let me --

24 A -- when we said no, there wasn't one, we were

25 telling the truth.




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1 Q Let me ask you a few questions about --

2 A Okay.

3 Q -- your relationship with Dr. -- I'm going to

4 come back to this line, but your relationship with

5 Dr. Lackey --

6 A Okay.

7 Q -- as the public information officer --

8 A Okay.

9 Q -- responding to his California Public Records

10 Act request --

11 A Okay.

12 Q -- and his relationship also with the district.

13 I think you've testified that Dr. Lackey made

14 numerous requests of the district for documents that you

15 handled.

16 A Correct.

17 Q In the course of making those requests, did you

18 interface with Dr. Lackey?

19 A What do you mean by "interface"?

20 Q Did you speak to him on the telephone? Did you

21 speak to him person to person? Did you come out to the

22 counter? Did you have exchanges of correspondence?

23 A We had mostly exchange of correspondence. A

24 couple of times, I think I've testified, we talked by

25 phone specifically on his request for a line-item budget.




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1 I did go out most of the time when he would come in the

2 lobby, A, just to make sure that the right material was

3 there that he requested, several times because he

4 continued to complain about the 15-cents-per-page charge.

5 But predominantly my interface, if you will, with

6 Dr. Lackey was through correspondence.

7 Q Okay. In any of these exchanges with Dr. Lackey

8 did he treat you rudely?

9 A How do you mean? Do you mean raise his voice

10 or --

11 Q Did he swear at you? Were there swear words in

12 any of the --

13 A No --

14 Q -- discussions?

15 A -- I think there was one time where he was -- he

16 was agitated about something that he was looking at in

17 the lobby, and it really would have been desirable for

18 him, obviously, to make copies, but -- and I wouldn't

19 relent on the 15 cents, I mean, that was made clear to me

20 by trustees through Dr. Fleming, that, in fact, they

21 wanted to try to raise it above 15. And I said, "I'm

22 sorry, Dr. Lackey, I can't." And he -- he was agitated,

23 and I -- he said something to the effect that, you know,

24 "Well, when I'm on the board, there won't be a

25 communications office," something to that effect.




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1 Q Let me ask you this: On a scale of 1 to 10 --

2 A Yeah.

3 Q -- with 1 being a total rude jerk and 10 being a

4 gentleman, where would you place Dr. Lackey in your

5 exchanges with him?

6 A Oh, I think in -- you know, on -- in general, he

7 was probably an 8 or a 9. I mean, he was --

8 Q Okay, good, good.

9 A -- he never argued in the correspondence, it was

10 pretty straightforward.

11 Q Have you ever heard the word "gadfly" used in

12 the context of a person who makes public comments at

13 open-session meetings --

14 A Yes.

15 Q -- of agencies?

16 A Yes.

17 Q You're familiar with -- you've heard that term

18 before?

19 A Yes.

20 Q What does it mean?

21 A I actually wrote about a gadfly once for the

22 L.A. Times. I mean, it's a person who's a regular --

23 apparently, their only regular profession is to show up

24 at public agency meetings, from the transit board to the

25 city council to the ed board, and get their three minutes




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1 during the open session, sometimes on point to what the

2 board is meeting about, the agency, sometimes not on

3 point. And they become colorful, if you will.

4 Q Is Ron Lackey a gadfly?

5 A Yes and no. Yes, he -- he has a lot of the

6 mannerisms of a gadfly. Gadflies tend to be more

7 elderly, and Dr. Lackey is, you know, elderly. They tend

8 to be a little bit informal, shuffle papers. I mean, he

9 has all those attributes. But he raised -- I mean, two

10 things. One, he was a candidate, and that had all the

11 alarm bells -- red light would come on for the district,

12 because he was a candidate, and he made it clear even

13 before this year that he was going to be a candidate

14 again for a board seat. And some of the issues he raised

15 were quite serious, in the sense of the ramifications

16 that he was alleging.

17 Q Are you aware of any facts that would cause you

18 to doubt Dr. Lackey's sincerity in his dealings with the

19 district? You can answer "yes" or "no."

20 A Say it again.

21 Q Do you have any facts that would cause you to

22 doubt Dr. Lackey's sincerity in his dealings with the

23 district?

24 A No.

25 Q Okay. Have you ever heard of the term




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1 "disgruntled former employee" in your professional

2 experience?

3 A Yes.

4 Q What do you understand a disgruntled former

5 employee to be?

6 A Well, I mean, I could reference myself.

7 Q Are you a disgruntled former employee?

8 A Yes.

9 Q Why are you disgruntled?

10 A Because I don't believe it -- I believe it

11 violates every canon of an organization for someone to

12 lie to the public information officer, to the person who

13 is charged with presenting the picture of the agency to

14 the public. You can tell me, as I've had bosses in the

15 past, "I'm not going to tell you. You can't know. You

16 can go out and tell the press you don't know and there'll

17 be no comment when you went to find out," that's fair and

18 game.

19 The point of a public information officer for a

20 public agency -- and I've had a lot of experience at

21 this -- is honest promotion. I'm not there to tell about

22 all the miserable math teachers we might have or not

23 have, I'm there to say, "You asked me about challenges in

24 math that we have, here's what we're doing to meet that

25 challenge, here's how we're trying to improve." And, of




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1 course, by reference, a reporter will say, "Gee, the

2 district's not as good as they are, but you're doing

3 honest promotion." I can't do honest promotion if the

4 people who charge me with doing it don't level with me.

5 Q Okay. So who is it that didn't level with you

6 that's caused you to become disgruntled?

7 A In almost all instances, the chief executive

8 officer of the school district, the --

9 Q James Fleming?

10 A -- the former chief executive officer.

11 Q Do you have any reason to be disgruntled by

12 virtue of any action of a member of the board of trustees

13 of the district?

14 A Yes.

15 Q And who would that person be?

16 A Well, it would be more than one.

17 Q Well, who are they?

18 A Well, one would be --

19 Q Please list -- please identify them for us and

20 tell us why you have reason to feel --

21 A One would --

22 Q -- disgruntled.

23 A -- be Marlene Draper, because of -- she didn't

24 tell the truth, particularly during the recall, when she

25 told the press that the district hadn't asked for




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1 contributions from contractors for contributions to the

2 Kids First political action committee, when, in fact, the

3 business division, Dave Doomey, had been ordered to draw

4 up a vendor list that they could go out and try to drum

5 up support from the vendors.

6 The two Sheilas, Benecke and Shelia Henness, I'm

7 not sure I'm disgruntled, I'm terribly disappointed,

8 because I had lunch with them in April, they themselves

9 went to Dr. Fleming and expressed abhorrence that Mike

10 Eggers was doing any work for the district. But Sheila

11 Benecke said, "We don't wash our dirty linen in public."

12 And both of them said to me straight-faced over lunch,

13 "Sure he lies, he lies all the time. He lies about big

14 things, he lies about little things. That's Jim

15 Fleming."

16 And Benecke used one little example. Benecke

17 has a son, who I think is in graduate school at NYU in

18 international relations --

19 Q Just to help focus the question, the question is

20 about trustees causing you to be disgruntled.

21 A Yeah, well, this disgruntles me, because she

22 gave the example, Fleming introduces her in the audience

23 all the time and says, "Here's Sheila Benecke, who's son

24 is in the foreign service." And she cringes. You know,

25 it's one of these little white lies, but he tells white




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1 lies, black lies. And it disgruntles me that the

2 trustees, you know, put up with it.

3 MR. LACY: I'm going to take just about ten more

4 minutes, then we can break.

5 Q You testified earlier about efforts by the

6 district to, and this is the quote, "shut up Mr. Lackey."

7 What were you referring to specifically about efforts of

8 the district to shut up Mr. Lackey?

9 A Well, they wanted -- trustees wanted to know,

10 you know, if there was any way that Dr. Lackey could --

11 that they didn't have to endure him, because, you know,

12 he would pull not just -- he would pull many, many items,

13 and he'd want to speak to the minutes, item 2, for

14 example.

15 Q Can you explain what you mean by pulling items.

16 A Agenda i- -- you put a card into the board

17 saying you want to speak, and you say which agenda item

18 you want to speak on, and he would list a whole bunch of

19 items that he wanted --

20 Q Why would that be something that the trustees

21 would --

22 A Because they didn't want him getting up five

23 times, three minutes for each time, and -- 15 minutes,

24 and you've got the public there, and they were personally

25 affronted by him.




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1 Q Well, you understand the Brown Act, you've

2 testified earlier you understand the Brown Act. Isn't

3 putting a card in and having the opportunity to speak

4 something that is afforded to the entire general public

5 under the Brown Act?

6 A Yeah. But I'm not in char- -- I wasn't in

7 charge of handling speakers for the district, I didn't

8 have any responsibility for whether he could speak or

9 not.

10 Q Well, why would the trustees, as you've just

11 testified, why would the trustees be offended of

12 someone wanting to speak to an agenda item under the

13 Brown Act?

14 MR. LARSEN: Object. Calls for speculation.

15 BY MR. LACY:

16 Q I'm asking to your knowledge, why would they,

17 I'm not asking for speculation. Do you have any

18 knowledge of -- I'll rephrase the question.

19 Do you have any knowledge of why trustees would

20 be upset with Mr. Lackey exercising his rights --

21 A Well.

22 Q -- to speak under the Brown Act?

23 A Well, with the two Sheilas, Shelia Henness and

24 Sheila Benecke, they were personally offended by

25 Dr. Lackey. Crystal Kochendorfer saw him as a potential




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1 candidate again, and he had declared himself that he was

2 going to run. Marlene Draper, again, it was irritation.

3 And a lot of it, they were reflecting, you know, the

4 superintendent's irritation. He was -- Dr. Fleming was

5 very irritated. He kept a copy of that PowerPoint on the

6 administrative thing, he had a copy of that and would

7 bring it to board meetings, saying if Lackey really, you

8 know, goes on a bender or whatever, you know, he'll just

9 pull that out and restate it again. I mean, it was -- he

10 got under their skin.

11 MR. LACY: Let me just go over these three -- I

12 have three defendant exhibits to the deposition that I

13 want to just quickly go over, and then perhaps we could

14 break.

15 MR. LARSEN: All right.

16 BY MR. LACY:

17 Q The first is Defendants' 13, which is -- you

18 might want to try and get it, it's this Yahoo e-mail from

19 you, I guess dj "SEN-sigh" --

20 A Sensei. That's Japanese.

21 Q That's your e-mail address?

22 A Yeah.

23 Q To sbenecke.

24 A Okay. All right.

25 Q And sbenecke is --




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1 A Sheila.

2 Q -- Sheila Benecke, and she's a member of the

3 board of trustees?

4 A Yes.

5 Q So you've testified that in order to not have

6 this document be subject to a public records request,

7 that you did it at home pursuant to advice from Dave

8 Larsen, correct? Isn't that what your earlier testimony

9 was?

10 A Yes, but I don't know if it was directly from

11 Dave Larsen or through Dr. Fleming. It was advice that I

12 received --

13 Q You were told the source of the advice came from

14 Dave Larsen?

15 A Yes.

16 Q Okay. Now, it appears to me that you probably

17 would have had to do some research to develop this

18 information for this e-mail; am I correct?

19 A Very little research.

20 Q Who asked you to provide the information in this

21 e-mail?

22 A Dr. Fleming.

23 Q Did he want you to provide it to Sheila Benecke

24 or to the entire board of trustees?

25 A Well, I sent it to her, and I don't know -- my




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1 as- -- assumption is that she sent it on to other board

2 members, although I don't -- I don't know that for sure.

3 Q Okay. So your testimony is that Dr. Fleming

4 asked you to produce this information?

5 A He said that trustees were still confused over

6 the information that had been supplied by the registrar,

7 i.e. --

8 Q How did --

9 A -- that the --

10 Q -- he give you that direction?

11 A He either told it to me in my office or told it

12 to me when I was in his office, orally, verbally.

13 Q Would that have been during regular working

14 hours at the Capistrano Unified School District?

15 A Probably.

16 Q So that I can really understand this,

17 Dr. Fleming told you to prepare this information about

18 the recall and send it to the trustees while you were

19 both at work, under normal business hours, but because

20 you had been advised to provide this type of information

21 and to shield it from public disclosure, you should do it

22 at home, you just went home and did this later that

23 night?

24 MR. LARSEN: I'll object it's compound and

25 misstates his testimony.




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1 BY MR. LACY:

2 Q It is a compounded question, that's for sure,

3 but could you try giving me an answer.

4 A Well, I mean, my assumption -- I'm sure my

5 assumption at the time was he was telling me to do this,

6 but, clearly, not to do it at work, I assume, because I

7 had done previous stuff at home.

8 Q But your testimony is he told you to do it at

9 work?

10 A Well, he told me to do it. I don't -- oh, he --

11 well, he --

12 Q Were you --

13 A -- told me --

14 Q -- at work when he told you to do this?

15 A When I was at work, he told me to draw up

16 something like this, but I think he assumed I would do

17 the actually drawing up of it at home.

18 Q And did you do the actual drawing up of it at

19 home?

20 A Yes.

21 Q Did you do the actual research while you were on

22 company time, if you understand what I mean by "on

23 company time"?

24 A Yeah. I didn't do any research on company time.

25 Did I know these figures, 20,421, on that? I knew that




137



1 from previous documents that were legitimate documents

2 from the registrar that came across from -- the

3 district --

4 Q Sure.

5 A -- company time.

6 Q Thank you.

7 A Okay.

8 Q On Defendants' 18 --

9 A What is that?

10 Q It's your resignation letter.

11 A Oh, okay.

12 Q There's a sentence, and I'll read it to you, "I

13 no longer believe myself capable of communicating a true

14 picture of CUSD." Do you see that?

15 A Uh-huh.

16 Q Did you write that?

17 A Yes.

18 Q Why did you write that?

19 A Because of what had occurred both with the lying

20 on Eggers, the lying about his voucher, and the fact that

21 the superintendent was still writing in his -- or

22 dictating in his documents that the funding was

23 redevelopment money, it could only be used for, you know,

24 limited purposes, I mean, we were still trying to pedal

25 that line.




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1 Q You've earlier in your testimony expressed a

2 general concern about how closed-session meetings were

3 held. Did the practice of the district in holding

4 closed-session meetings figure into your resignation

5 letter in any way?

6 A Probably very little, because I simply, you

7 know, had to take it for granted that somehow this court

8 case that Fleming always referred to and the fact that he

9 would say, "Well, we're not taking any decisions,"

10 although I knew that really didn't apply to the Brown

11 Act, it was just something that, you know -- that he did.

12 I mean, I had -- I thought I protected myself from that

13 by not going to them, and, therefore, I would never have

14 an occasion to have to be untruthful to the press about

15 something that was talked about in a closed meeting that

16 shouldn't have been talked about in a closed meeting, and

17 I could just claim ignorance.

18 Q And then Defendant 19, and then this will be it

19 for now.

20 A Which is the --

21 Q Which is Fleming's letter to you.

22 A Oh, okay.

23 Q He says -- and I'll just read it to you -- the

24 last paragraph, "Some time in the next week and a half I

25 would like for us to schedule some time together to




139



1 determine if there is any way I might be of assistance to

2 you in your future endeavors." Do you see that?

3 A Yep.

4 Q Now, you've given some pretty strong testimony

5 today about your relationship with Dr. Fleming and your

6 concerns about his truthfulness to you.

7 A Uh-huh.

8 Q What does Dr. Fleming mean where he says, "I

9 might be of assistance to you in your future

10 endeavors"?

11 MR. LARSEN: Object. Calls for speculation,

12 lacks a foundation.

13 BY MR. LACY:

14 Q To your knowledge.

15 MR. LARSEN: Same objection.

16 THE WITNESS: Do I not answer it or --

17 BY MR. LACY:

18 Q Go ahead and answer the question.

19 MR. LARSEN: If you know what he means or what

20 he meant is the question.

21 THE WITNESS: Well, I think it's -- I think he

22 was being disingenuous to a fault.

23 BY MR. LACY:

24 Q Do you think that Fleming would have provided

25 assistance to you after your resignation?




140



1 A No, in fact, after I received this letter -- I

2 was still there, as you can see, another week and a

3 half -- I never had another conversation with the man.

4 MR. LACY: Okay. Well, if we could break and

5 then come back. And what time would you like to come

6 back?

7 MR. LARSEN: I'll be here the whole time, so

8 whenever it's convenient for you.

9 MR. LACY: Can we come back, say --

10 THE WITNESS: 1:30?

11 MR. LARSEN: Let's go off the record.

12 (Discussion off the record.)

13 (Lunch recess.)

14 MR. LACY: This will be Plaintiff's Deposition

15 Exhibit A.

16 (Plaintiff's Exhibit A was marked.)

17 BY MR. LACY:

18 Q Mr. Smollar, while you were at the district, did

19 you have any duties in connection with the Web site of

20 the district?

21 A Yes.

22 Q What were those duties?

23 A I was there -- basically, oversaw the content of

24 the Web site.

25 Q So you're familiar with the Web site; is that




141



1 correct?

2 A Yes.

3 Q In looking at this document, are you familiar

4 with what I've printed out here for you?

5 A Board actions --

6 Q Are you familiar --

7 A Yes.

8 Q -- with this document?

9 A Yes.

10 Q What is this document?

11 A This is a print listing of the Web page that are

12 the board actions for the board of trustees of CSU. They

13 are brief -- after each meeting I would write a brief

14 summary of the open session. And I don't know how far

15 back this goes, but about a year ago we started adding --

16 we had violated the law, basically, for years, but

17 Heather Wheeler, who's the board secretary, went to a

18 seminar on Brown Act and open meeting, public records

19 requests at UC Riverside and realized that we needed to

20 post, in addition, a summary of the closed session. So

21 that's -- she would send me her summary of the closed

22 session, and I would then write the open session, we

23 would post it.

24 Q I see.

25 And as you can see, on page 1, this list of




142



1 board actions purports to go back to June 13th, 2005; is

2 that correct?

3 A Yes. Usually we kept -- we kept stuff on for

4 about a year, and then because the Web master said it

5 would start cluttering the site, we would eliminate stuff

6 after about a year.

7 Q Now, have you read the complaint in this

8 action?

9 A Yes. Yes. The lawsuit.

10 Q And are you aware that this action focuses on a

11 meeting of the board of trustees that occurred on

12 July 30th, 2005?

13 A Yes.

14 Q Could you look at page 1 again of Exhibit A.

15 A Okay.

16 Q Do you see a listing there of a July 30th

17 meeting?

18 A No.

19 Q What does the absence of the July 30th meeting

20 of 2005 on this list mean?

21 A I have to be honest with you, I never -- I never

22 thought of it before, because -- I mean, Heather Wheeler,

23 I mean, through the -- Heather Wheeler -- the

24 superintendent through Heather Wheeler and the board was

25 responsible to get to me whatever meetings were called




143



1 closed meetings. So I just -- I never -- I never

2 received anything from any Saturday meeting to put up on

3 the Web site.

4 Q When you say "Saturday meeting," are you

5 referring to the July 30th meeting of 2005 as being the

6 Saturday meeting?

7 A Yes, there were two Saturday meetings of every

8 year, one in January, one in July. He would have these

9 all-day meetings, where, you know, again, lots of staff

10 would be there --

11 Q Right.

12 A -- they'd cater a breakfast, lunch. I mean, it

13 was an all- -- these were all-day sessions.

14 Q If there had been a board action at the

15 July 30th, 2005, meeting, would it have been listed in

16 this list?

17 A Only if somebody had sent it to me, because I

18 wouldn't know -- I would not know if they took any ac- --

19 or what they did.

20 Q And you're talking about your personal

21 knowledge?

22 A Correct.

23 Q But from your personal knowledge, was it your

24 understanding of the district that all board actions be

25 listed in this Web site?




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1 MR. LARSEN: Objection. Calls for speculation,

2 lacks a foundation.

3 BY MR. LACY:

4 Q To your knowledge.

5 A No, that was -- I mean, I started this. There

6 was never -- before I came to the district, the Web site

7 never had a board action, so I created this.

8 Q So that what you're saying is that you created

9 this program in order to publicly disclose board

10 actions?

11 A Yes.

12 Q And was it your intention to disclose all board

13 actions?

14 A Everything that is required by law, yes.

15 Q But you can't explain why the July 30th of 2005

16 meeting isn't here?

17 A Not from my -- from my personal knowledge, no.

18 Q Is it possible there were no board actions on

19 the July 30th meeting?

20 MR. LARSEN: Objection. Calls for

21 speculation --

22 THE WITNESS: I'm not --

23 MR. LARSEN: -- lacks a foundation.

24 BY MR. LACY:

25 Q Would it --




145



1 A -- aware that --

2 Q -- be --

3 MR. LARSEN: You know, it'll go a lot easier for

4 her if we don't all talk at the same time. All three of

5 us were talking,

6 MR. LACY: I'm sorry.

7 Q You can answer the question.

8 A I don't know.

9 Q Okay. To your knowledge, was there a board

10 action at the July 30th, 2005, meeting?

11 A I don't know. To my knowledge, I don't know.

12 Q All right, we'll move on.

13 A Well, can I amend that answer?

14 Q Sure.

15 A I wasn't at the meeting, but, I mean, to the

16 extent -- and I don't have it in front of me, but the

17 meeting notes would tell you if conclusions or actions

18 were reached --

19 Q Okay.

20 A -- at such a meeting.

21 Q Thank you.

22 But, certainly, it doesn't appear from --

23 A Correct.

24 Q -- this document that a board action took place

25 on July 30th, 2005, correct?




146



1 A Correct. Correct.

2 Q Does the board of trustees have bylaws?

3 A Yes.

4 Q What are the bylaws?

5 A They're a -- I guess short answer would be

6 they're a series of codes, regulations, explanations of

7 how the board carries out its functions, its conduct of

8 meetings, et cetera, et cetera. They're part of --

9 they're part of the district policies. I think they're,

10 like, Section 9000. Policies go from the 1000 series to

11 9000 series.

12 Q Are you generally familiar with the bylaws of

13 the board?

14 A Generally.

15 MR. LARSEN: This will be B.

16 (Plaintiff's Exhibit B was marked.)

17 BY MR. LACY:

18 Q I've handed over a document to be designated as

19 Plaintiff's B. At the top it says "Bylaws of the Board,"

20 "Board Minutes."

21 A Okay.

22 Q Have you ever seen this document?

23 A I've seen it in electronic form, yeah.

24 Q Okay. I want to refer to the third paragraph of

25 this document.




147



1 A Okay.

2 Q It says, "The original copy of the minutes shall

3 be signed by the secretary of the Board and approved by

4 the clerk. Original minutes shall be bound in

5 chronological order, volumed by fiscal year and paged

6 consecutively." Do you see that?

7 A Uh-huh. Yes.

8 Q Is it your understanding that minutes of the

9 board of trustees are documents that bear a signature of

10 the secretary of the board, which are approved by the

11 clerk?

12 A Yeah -- yes, I am, because I've seen -- I've

13 seen the originals from a prior meeting on the desk of

14 Heather Wheeler after they've been signed and sealed and

15 she's ready to bound -- put them in the next bounding --

16 binding or whatever.

17 Q And would that also include closed session

18 minutes?

19 A I -- I don't know. I've never -- I've never

20 looked at the actual bound volumes, so I don't know.

21 Q If you look lower down in the document, it

22 states "Closed Session," and it says in the second

23 paragraph under "Closed Session," Minutes for board

24 meetings held in closed session shall be kept in a minute

25 book separate from the minutes of the regular meetings,




148



1 and it says the minute book shall not be opened for

2 public record.

3 A Okay.

4 Q And above it it says, "The Board secretary

5 shall be responsible for minutes of closed session. One

6 copy of the minutes shall be signed by the president and

7 each member of the Board and kept on file." Do you see

8 that?

9 A Yes.

10 Q Is it your understanding that the minutes of the

11 board are signed by the president and each member of the

12 board?

13 MR. LARSEN: Objection. Lacks a foundation.

14 THE WITNESS: I don't know.

15 MR. LACY: I've just laid the foundation.

16 Q Is that your understanding?

17 A Well, my understanding only from --

18 Q From the bylaws?

19 A -- reading the bylaws.

20 Q Okay. Have you ever seen a copy of closed

21 session minutes?

22 A Not in the -- not in the bound -- not in bound

23 form.

24 Q Okay. All right, we're done with that.

25 We up to C?




149



1 THE REPORTER: Yes.

2 (Plaintiff's Exhibit C was marked.)

3 BY MR. LACY:

4 Q I've handed over a document that says bylaws of

5 the board and "Disclosure Of Confidential Information" at

6 top; do you see that?

7 A Yes.

8 Q Have you ever seen this document?

9 A Yes, electronically.

10 Q What is this document?

11 A It talks about disclosure of confidential

12 information, essentially information out of a closed

13 session of the board.

14 Q What's the purpose of this document?

15 MR. LARSEN: I'll object that calls for

16 speculation, lacks a foundation.

17 BY MR. LACY:

18 Q Well, can we establish once again, you are the

19 information -- you were the information officer for the

20 Capistrano Unified School District, correct?

21 A Correct.

22 Q And as such, you handled documents; is that

23 correct?

24 A Correct.

25 Q And did you ever have a discussion with David




150



1 Larsen about whether or not a document was privileged or

2 confidential?

3 A Yes.

4 Q So you've handled privileged and confidential

5 documents at the --

6 A Yes.

7 Q -- district?

8 A Yes.

9 Q Thank you very much, okay.

10 So would it be fair to say this document

11 establishes a policy regarding handling privileged and

12 confidential documents?

13 MR. LARSEN: Objection. The document speaks for

14 itself.

15 BY MR. LACY:

16 Q You can answer the question.

17 A Yes --

18 Q Yeah.

19 A -- it establishes --

20 Q Yeah.

21 A -- a procedure.

22 Q Yeah.

23 THE REPORTER: Counsel, can you please just let

24 him answer and not interrupt?

25 MR. LARSEN: Counsel, I realize we're all really




151



1 trying to get this done, but please don't speak over

2 anyone.

3 MR. LACY: The reason I'm doing that is to try

4 to move things along out of respect for everybody here,

5 so just understand that. And I'll try and do my best to

6 not interrupt.

7 Q In the third paragraph it says, "Information

8 from closed sessions shall be released by the president

9 or chairman of the meeting in which the closed session is

10 held." Do you see that?

11 A Yes.

12 Q Who would the president be that's referred to in

13 this document?

14 A The president of the board at that particular

15 time.

16 Q President of the board of trustees?

17 A Trustees, yes.

18 Q And who would the chairman be?

19 A I don't know why it says both, because we don't

20 have a chairman, we just have a president of the board

21 and a vice president. This language was probably adopted

22 from -- there's a firm in California that puts out

23 language for school districts, basically, to adopt, and I

24 suspect that that may have happened here whenever this

25 was adopted.




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1 Q Thank you.

2 Now, the first paragraph says, "Confidential

3 privileged information which is produced for or which

4 comes out during closed sessions of the Board of Trustees

5 shall not be divulged or released unless a majority of

6 the Board members agree to release the information." Do

7 you see that?

8 A Yes.

9 Q Did there ever come a time in your employment

10 with the board where you were asked to release

11 confidential or privileged information that did not have

12 a majority of the board members in agreement to releasing

13 information?

14 A Well, there certainly were times when the

15 superintendent suggested to me that information that I

16 knew to be privileged, we should leak it to the Register

17 or the Times, I mean, specific cases. And I don't know

18 if the board had taken a vote on it or not, but, I mean,

19 there were several cases where that happened, the

20 superintendent coming to me and saying, "I'd like to have

21 you leak this to Sam," or "How about giving this to

22 Sema," Sema meaning the education reporter at the Times.

23 Q And Sam being who?

24 A He's the Orange County Register education

25 reporter.




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1 Q You said that Fleming suggested you to do this,

2 could it be that Fleming directed you to do this?

3 A I'd have to -- I'd have to talk to you about a

4 specific, because I'd have to tell you why -- why I did

5 or did not follow his directive, even though -- he didn't

6 phrase his directive, but I did not do what he suggested

7 I do.

8 Q Well, that's what I'm driving at. Can you give

9 me some specifics?

10 MR. LARSEN: Objection on the grounds of

11 relevance.

12 BY MR. LACY:

13 Q You can answer the question.

14 A Well, the one that really set off alarm bells

15 all over the place was in, I guess, December of 2005.

16 There was a case at Tesoro High School of two students

17 who wrote journal entries for an English class that were

18 misogynist, violent every which way, threatening the

19 teacher, wanting to kill her in horrendous ways. I mean,

20 it became very prominent because the kids were big

21 football players. And we were handling this case very,

22 very carefully, because there was pressure on -- from the

23 lawyers of the kids about whether they should really be

24 expelled or all of this, there was a lot of interplay in

25 the press. And at one point the superintendent suggested




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1 to me that I should leak portions of the journal entries

2 to the Register.

3 Now, I did not have the journals. I know

4 several copies were made of the journals, I don't know if

5 our legal counsel of CUSD got one. I know Jeff Bristow,

6 who handled suspension matters for the district, the

7 district employees, he had a copy, I know Mike Beekman,

8 who's another employee in the district who handles

9 student personnel issues.

10 I said to Dr. Fleming, you know, "We can't do

11 that, Dr. Fleming." He said, "Oh, we ought'a figure out

12 a way." I went to Jeff Bristow and said, "I don't

13 think" -- "I think this is a bad idea. I'm sure Dave

14 Larsen would think it was a bad idea," and I know he was

15 in contact with Dave Larsen.

16 The upshot that I know what happened is Jeff

17 Bristow had all the copies of the journals that were --

18 that existed in the education center removed from the

19 education center so it just wouldn't be an issue so there

20 was nothing to leak, but I have a feeling that if

21 Dr. Fleming had, you know, continued on it, that probably

22 there would have been a -- I know there was a

23 conversation between the superintendents and legal

24 counsel. But that was one instance that really shook up

25 a lot of people.




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1 I mean, there are other instances. There's a

2 recall proponent by the name of David Bartholomew, who I

3 think -- they used to have a blog, and maybe they still

4 do, on the Register, and he had a moniker, Life With

5 Three Girls, and he was very strident. And he was

6 studying, I guess, to become a teacher and had been a

7 substitute teacher in the district, but had been such a

8 terrible substitute teacher, that the district

9 essentially said, "Well, you're no longer desired to be

10 on the sub list." Ed Kovac, who was the security

11 director of the district, at some point did an

12 investigation, together with the sheriff, of this

13 individual, and I don't know on what basis, but I do know

14 that Dr. Fleming had Bartholomew's personnel record and

15 suggested that that should be leaked to the Register.

16 And I went to Suzette Lovely, who's the

17 assistant superintendent of personnel, and said, "I just

18 want you to know what's happening, because I don't think

19 it's" -- and she said, "Absolutely not." And, again, one

20 of the good things sometimes is Fleming would have an

21 idea, or he'd do something, and he'd -- you know, he

22 wouldn't remember it a day later, and sometimes it was

23 fortuitous.

24 And there was another case where there was

25 another recall proponent by the name of Steve Burt, who,




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1 as I understand it, is a longstanding booster of Aliso

2 Niguel High School, and he helped found the booster clubs

3 there, was very involved in football and was involved in

4 some incident before I got to the district where he

5 allegedly dropped his trousers in front of the football

6 team, showed his behind, basically, to try to get them to

7 loosen up for a team photo or something. And there was

8 an investigation done of him, and Ed Kovac did the

9 investigation. Fleming used to tell me -- he told him,

10 as a result of the investigation, that he was not to be

11 allowed -- he was persona non grata, wouldn't be allowed

12 on our campuses, couldn't come on, all of that.

13 Well, Burt, apparently, was a friend of

14 Fleming's at some point, but they had a falling out, and

15 Fleming at one point during the past year, because Burt

16 was very, very active in the recall, and he came to -- he

17 may still come to board meetings and films the board

18 meetings. And at first Fleming wanted to know if we

19 could -- there was a way we could stop him from filming,

20 but, again, you check on the Brown Act, and, you know,

21 the public has an absolute right, member of the public

22 doesn't even have to be a member of the media. And

23 Fleming suggested that we release the -- Kovac's report.

24 And I actually called Dave Larsen to ask him on

25 that, and Larsen said, "Well, you know, maybe you could,




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1 but you'd have to redact all the names of all the

2 students who were investigated as witnesses," et cetera,

3 et cetera. So I said, "Okay, let me look at it." And in

4 reading it -- and then I found out the report had never

5 been concluded, Kovac had never written a conclusion and

6 had never presented it to Mr. Burt, so the

7 superintendent's understanding of what happened with the

8 report was erroneous.

9 And, again, I just -- on the advice of several

10 people in the district, Sherine Smith, I think, being

11 one, who's an education division superintendent, and what

12 Dave Larsen had given me, I just didn't do it. And,

13 again, the superintendent was sort of -- you know, forget

14 about these things. But I knew -- I mean, I knew we had

15 real problems.

16 I mean, there are probably others, but those

17 come to mind because they're pretty current, and they had

18 to do with the recall.

19 Q Okay. Thank you.

20 Are we E now?

21 THE REPORTER: D.

22 MR. LACY: Okay, this will be D.

23 (Plaintiff's Exhibit D was marked.)

24 BY MR. LACY:

25 Q I've handed over a document with a title that




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1 says "A Journalism Lesson: Hard Questions."

2 Mr. Smollar, have you ever seen this document?

3 A Yes, as a matter of fact, it was part of the

4 document turnover that I did this morning.

5 Q What is this document?

6 A This is a reply that I was asked by the editor

7 of the Capistrano Dispatch if I wanted to write to an

8 article by a woman named Erin Kutnick, a resident of

9 San Juan Capistrano, a close friend of the district,

10 particularly of Marlene Draper and Dr. Fleming, and who

11 wrote a column on education for the Capistrano Dispatch.

12 And she had attacked me in quite personal terms, using

13 information from Marlene Draper and Jim Fleming in her

14 column that ran before -- the issue before this.

15 Q Now, on page 2, at the bottom of the left-hand

16 column, paragraph that starts -- and I'll read it --

17 "Maybe Erin Kutnick could develop some journalism skills

18 by exploring Fleming's deliberate underreporting of his

19 true 2004-05 compensation by some $65,000, or his efforts

20 to subvert the public meetings act through bogus closed

21 sessions on his 'evaluation' called by state Brown Act

22 experts the worst violations they've seen in a quarter

23 century!" Do you see that?

24 A Uh-huh.

25 Q Did you --




159



1 A Yes.

2 Q -- write that?

3 A Yes.

4 Q When you refer to bogus closed sessions on his

5 evaluation, what closed-session meetings specifically are

6 you referring to?

7 A The July 30th meeting that was referenced in The

8 Orange County Register, that's where they quoted Terry

9 Francke.

10 Q Why do you believe that that meeting was a bogus

11 closed session?

12 A Partly because when we went over the meeting

13 notes from that meeting in cabinet, I mean, several of

14 the items on that list -- I mean, first of all, they were

15 already public. Some he was even laughing about, you

16 know, like Crystal Kochendorfer wanting to talk about

17 her -- some charity she was involved with. And, I mean,

18 he couldn't even keep a straight face sometimes when he

19 had his debriefings of these Saturday sessions. And, I

20 mean, people -- you know, other staff would -- you know,

21 they sort of wondered why something would be on that

22 Saturday agenda.

23 Q So your testimony is that the basis of your

24 concluding that these were bogus closed sessions was your

25 knowledge of the subject matter discussed in the closed




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1 sessions?

2 A That and the fact that Terry Francke, who I

3 respect, had seen those notes, I guess courtesy of the

4 Register, and concluded that they were the worst

5 violations he had seen in a quarter century.

6 (Plaintiff's Exhibit E was marked.)

7 BY MR. LACY:

8 Q What I've just turned over as Plaintiff's

9 Exhibit E says at the top, "Special Meeting Capistrano

10 Unified School District," and it's dated July 30th, 2005.

11 And so, Mr. Smollar, my question is: Have you ever seen

12 this document?

13 A In electronic form.

14 Q What is this document?

15 A It's the posting that would have been put on the

16 Web site and in printed form put out in front of the

17 district building on the bulletin board, under the Brown

18 Act, notifying of a meeting being called by the board.

19 Q And it's your understanding that under the Brown

20 Act, an agenda for any meeting must be published in

21 advance; is that correct?

22 A 72 hours, unless it's an emergency meeting, I

23 think, and it's 24 hours. But I'm not precise on the

24 waiver there when it's an emergency meeting.

25 Q And is it also your understanding under the




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1 Brown Act that the only items that can be discussed in

2 closed session are items that have been published in

3 advance?

4 A Yes.

5 Q It appears that the only item that's published

6 on this special meeting agenda is a public employee

7 performance evaluation for the superintendent; do you

8 understand that?

9 A Yes.

10 Q Is that correct?

11 MR. LARSEN: Well, document speaks for itself,

12 Counsel.

13 BY MR. LACY:

14 Q And does the superintendent reference mean

15 Dr. Fleming?

16 A Yes.

17 MR. LACY: Okay, we're done with that.

18 I believe this one is F.

19 (Plaintiff's Exhibit F was marked.)

20 BY MR. LACY:

21 Q And Plaintiff's F is a document that states on

22 the subject line that it's a follow-up to July 30 closed

23 session board meeting evaluation of the superintendent.

24 And the date of this document at the top is July 30th,

25 2005. Do you see that?




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1 A Yes.

2 Q Have you ever seen this document?

3 A Yes.

4 Q What is this document?

5 A This document was handed out at a cabinet

6 meeting in, I guess probably one of the cabinet meetings

7 we had in August of '05 as a follow-up action to what the

8 board wanted done or more reports or whatever in their

9 closed session. These same document- -- type of

10 document would be handed out after every open meeting as

11 well.

12 Q I see.

13 And are you aware of how this document was

14 distributed?

15 A Yes.

16 Q Can you tell me who this document was

17 distributed to.

18 A Well, initially it would go to each cabinet

19 member, and then depending on what Dr. Fleming wanted

20 followed up, it would go to sub-cabinet meetings -- I

21 mean, sub-cabinet me- -- it would go to administrators

22 who didn't go to cabinet, but, you know, people in the ed

23 division who might have to do something, business

24 division, I mean, documents like these were -- you know,

25 maybe 50 or more might end up seeing something like this.




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1 Q I note that this follow-up document doesn't bear

2 any signatures on it of members of the board of trustees

3 or president; is that typical of the distribution of

4 these follow-up documents at the cabinet meetings?

5 A Oh, yeah, I don't think -- I mean, I -- I don't

6 think board members would ever see a document like this.

7 I mean, I don't -- unless he -- it's possible that

8 sometimes he put these in his -- he had what are called

9 Thursday packets, there would be big, thick packets of

10 hundreds of pages of news articles, letters from parents,

11 I mean, privileged information, non-privileged

12 information that he would send out to the trustees every

13 Thursday, and they would also be distributed to cabinet

14 members for them to read and then distribute to their

15 employees within their divisions. So I -- that would be

16 the only way a trustee would ever see it, is if they saw

17 it as part of these big, voluminous packets, I would

18 think.

19 Q Now, you've testified that you've seen official

20 minutes of the Capistrano Unified School District,

21 correct?

22 A Yes.

23 Q On the basis of your understanding of what the

24 minutes are and the bylaws that you've testified to

25 earlier, is this document a minute of the Capistrano




164



1 Unified School District?

2 A No, these aren't minutes. I mean, they're

3 not -- no, they're not minutes.

4 Q And your testimony was that about 50 people

5 obtain this document?

6 A Could see it down the line, because, I mean, you

7 might see -- I don't know, there's one on educa- -- on

8 the new education center, you know, Draper, follow-up

9 Kochendorfer, make sure city is aware, Doomey, Doomey

10 might give that to some of his staff, secretaries would

11 see it, if there was one on education, I mean, if there

12 was something about, you know, No Child Left Behind, you

13 know, a half a dozen could see -- would see that because

14 there was at least that many people involved with some

15 aspect of, you know, making sure that we didn't have a

16 school that got on the No Child Left Behind list or

17 whatever. I mean, these aren't -- I mean, these are

18 minute- -- these aren't -- these type of things are just

19 regularly seen by a lot of people, by a lot of people, I

20 mean a lot of administrators in the district.

21 Q Do you have any reason to believe, based on your

22 knowledge as a public information officer, that this

23 document is privileged in any way?

24 A I'd have to -- if -- well, if someone asked for

25 it -- and they'd have to know to ask for it, because




165



1 it's, obviously, not put on a Web site or something --

2 I'd probably have to consult with counsel and see, you

3 know, what part of it might be redacted. But probably a

4 lot of this -- what I know about the Brown Act, I mean, a

5 lot of this is public information.

6 Q Yeah.

7 Now, I'd like to focus on just the first page --

8 A Okay.

9 Q -- and on the area where it says

10 "Discussion/Action/Follow Up."

11 A Okay.

12 Q And do you see where it says "Trustee Benecke,"

13 colon?

14 A Yes. Yes.

15 Q It says, "If we are going to permit Ron Lackey

16 to speak to numerous items on the agenda, do not list

17 them individually in the minutes. Simply provide a

18 listing of the pulled items."

19 A Yes.

20 Q Do you see that?

21 A Yes.

22 Q Do you understand what that means?

23 A Yes.

24 Q What does it mean?

25 A The -- Dr. Fleming, and I think Marlene Draper




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1 in particular, they were irritated that when Heather

2 Wheeler, who's the board secretary, manager of board

3 operations, prepared the official minutes for each open

4 meeting, and then they would be brought back and voted on

5 at the subsequent open meeting by the board, Dr. Lackey

6 would pull that item, because it's an agenda item,

7 approval of minutes from prior meeting, and Dr. Lackey

8 would object to the way that Heather Wheeler had

9 characterized his presentation on whatever item was

10 referenced in the minutes. So Dr. Fleming had the

11 idea -- and, you know, he talks individually with

12 trustees all -- that, well, it would just say that Ron

13 Lackey pulled item 4, 5, 6, 7, 8, 9, 10 and wouldn't --

14 in the minutes wouldn't reflect why Dr. Lackey had pulled

15 them and what he -- and what points -- the summary of

16 points he made during the three minutes.

17 Q How does Ron Lackey speaking on numerous items

18 relate to Dr. Fleming's performance appraisal?

19 MR. LARSEN: Objection. Lacks a foundation,

20 calls for speculation.

21 BY MR. LACY:

22 Q You can answer the question.

23 A Can you repeat it.

24 Q How does Ron Lackey's speaking to numerous items

25 on the agenda relate to Dr. Fleming's performance




167



1 appraisal?

2 MR. LARSEN: Same objection.

3 THE WITNESS: It doesn't.

4 BY MR. LACY:

5 Q Okay. Below, where it says "Notes," it says,

6 "In general Board members want to start to limit Ron

7 Lackey and the amount of items he can address"; do you

8 see that?

9 A Yes.

10 Q What does that sentence mean?

11 MR. LARSEN: Object. The document speaks for

12 itself. Calls for speculation beyond that.

13 BY MR. LACY:

14 Q Can you explain the meaning of that sentence?

15 A Well, you need to take it with the next sentence

16 that follows, "Suggest that the Board go back to only

17 allowing members of the public to address two items as

18 stated in Board policy." There were a lot of these

19 policies that were never followed, I mean, they would be

20 policies, but the board just didn't follow it, and there

21 was that policy, and there's another policy that the

22 board hadn't followed that supposedly limited someone to

23 speak only two times in a calendar year to a given topic,

24 and they --

25 Q What policy -- excuse me. What policy is that?




168



1 Can you identify the specific policy?

2 A I'd have to see the -- it's -- I'm pretty sure

3 it's in the 9- -- it's a 9000 series policy, but I

4 don't -- I don't know the exact number of it.

5 Q Thank you. Go ahead.

6 A But that's what -- that's what this is referring

7 to, those two sentences, that why isn't the board, you

8 know -- why doesn't the board start following its own

9 policy. I mean, it's nothing Dr. Fleming has a decision

10 on, it's up to the board to follow their policy.

11 Q Now, you're familiar with Dr. Fleming's

12 responsibilities, aren't you?

13 A Yes.

14 Q Because earlier today you testified in response

15 to questions by Mr. Larsen about Fleming's ultimate

16 responsibilities for a wide range of issues that were

17 brought up by Mr. Larsen; that's correct?

18 A Yes.

19 Q How does limiting Ron Lackey in the amount of

20 items he can address at a meeting relate to Dr. Fleming's

21 performance?

22 MR. LARSEN: Objection. Lack of foundation.

23 BY MR. LACY:

24 Q You can answer the question.

25 A Well, it's similar to your other question along




169



1 this line. I mean, it doesn't.

2 Q And, finally, there's a parenthetical statement

3 that says, "Dr. Fleming wants to discuss the Ron Lackey

4 list"; do you see that?

5 A Yes.

6 Q Close parens.

7 What is the Ron Lackey list?

8 A I honest- -- I have no idea. I -- I see that.

9 The only Ron Lackey list that I was familiar with was the

10 list of public records requests that Dr. Lackey had made.

11 And I know the superintendent was aware of those lists,

12 because Dr. Lackey did not send those public records

13 requests directly to me, he sent them to the

14 superintendent, but because the superintendent doesn't

15 have e-mail -- superintendent does not make his e-mail

16 address known to the public, I should put it that way,

17 Dr. Lackey would send his public records requests usually

18 through Heather Wheeler of the board, and then he would

19 copy the trustees with a cc, so the trustees may have

20 been aware of the list as well. But, I mean, it's --

21 it's a compilation of lists, but it's pretty much the

22 same items that Dr. Lackey referred to each time.

23 Q Does the Ron Lackey list that you're referring

24 to have any relationship at all to Superintendent

25 Fleming's performance?




170



1 A It would certainly relate to my performance if I

2 failed to respond to it under the Public Records Act.

3 But I -- it was certainly something I was cognizant

4 about, but I didn't want to be in a position of failing

5 to respond to a public records request. And we had an

6 example of that, so I was doubly cautious.

7 Q Okay, that's all I have for that at this time.

8 And here's our next one.

9 (Plaintiff's Exhibit G was marked.)

10 BY MR. LACY:

11 Q So what I've handed over is a document that's

12 entitled "Superintendent's Prepared Statement Regarding

13 Ron Lackey's Request At Board Regarding Alleged FBI

14 Investigation Of District." Do you see that?

15 A Yes.

16 Q Have you ever seen this document before?

17 A Yes.

18 Q What is this document?

19 A A document that I wrote at the direction of the

20 superintendent.

21 Q So you prepared this document?

22 A Yes.

23 Q On the first page, going down to the

24 fourth-to-last paragraph, there's two sentences, and they

25 say, "We have tried to sit by silently. But Ron Lackey




171



1 could try the patience of an oyster." Did you write that

2 line?

3 A I'm sorry I laugh at that, because that line was

4 one of Dr. Fleming's phrases. But he had a problem with

5 one or more of the trustees over that, and -- because he

6 showed this to probably all of the trustees before he

7 presented it that night, and there were some trustees who

8 didn't think that line -- it was -- it was just funny,

9 but he liked the line, and he kept it in the final

10 version, so --

11 Q So what was meant by that line?

12 A Well, I mean --

13 MR. LARSEN: I'm going to object it calls for

14 conclusion, lacks a foundation, document speaks for

15 itself.

16 MR. LACY: That's fine.

17 Q Now, going to the second page, the end of the

18 first paragraph, it says "because that office had the

19 temerity to terminate Ron Lackey's services for

20 unsatisfactory performance"; do you see that line?

21 A Yes.

22 Q What facts did you have in writing this document

23 to support that Ron Lackey was terminated for

24 unsatisfactory performance?

25 A There was a -- the quote that you see here,




172



1 there was a document that Susan Roice had provided Doreen

2 Lohnes to Dr. Fleming that he gave to me to write that

3 was the hearing officer, you know, how -- like, a judge

4 presents here are the facts of the case, what the

5 argument was at issue, and the conclusion from the way

6 the hearing officer had written it was that the

7 California special education hearing office had told

8 Dr. Lackey his services were no longer needed because of

9 performance and that Dr. Lackey was contesting it and

10 saying that the office was biased against him.

11 Q Now, the third paragraph from the bottom on this

12 page, it says, "So we were not the first victims of

13 Lackey's false charges, although we have endured his

14 attacks and falsehoods on a continuous basis during for

15 the past three years." Do you see that?

16 A Uh-huh. Yes.

17 Q Did you write that sentence?

18 A Yes.

19 Q Where it says "although we have endured his

20 attacks and falsehoods on a continuous basis" --

21 A I'm sorry, I don't see --

22 Q Where it says --

23 A Okay, I'm sorry, I do see it. I do see it.

24 Q Where did those attacks occur?

25 A At the public -- usually in his -- during the




173



1 public comments section of the board -- open board

2 meeting, the three minutes.

3 Q And what false charges did Lackey level?

4 A Well, the -- I guess the FBI investigation would

5 be one, that there was a conflict of interest with Susan

6 Roice -- with her husband working -- being a consultant

7 with the district, that he was working illegally because

8 he's not a lawyer. I mean, there were other -- those

9 would be the three major, because I think those were

10 points that Dr. Lackey reiterated time and time again at

11 the board meeting.

12 Q On the last page it says, in the third-to-last

13 paragraph, "In conclusion, there is one simple thing for

14 all of us to keep in mind each time that that Ron Lackey

15 gets up to speak." Do you see that sentence?

16 A Yes.

17 Q By each time Ron Lackey gets up to speak, do you

18 mean in the public sessions at the Capistrano Unified

19 School District?

20 A That's what that means, yes.

21 MR. LACY: Okay, we're done with that one.

22 This is our next.

23 (Plaintiff's Exhibit H was marked.)

24 BY MR. LACY:

25 Q Our next exhibit says at the top "From the Desk




174



1 of James A. Fleming."

2 A Yes.

3 Q Mr. Smollar, have you ever seen this document?

4 A Electronically.

5 Q And what is it?

6 A It's a statement that Jim Fleming sent to

7 parents of the district. I'm not sure -- I don't know

8 how he sent it, but it's addressed to parents, because

9 this was after I left the district.

10 Q Right.

11 Could you take a second to read the document.

12 Just take a couple minutes or take a minute to read the

13 document.

14 A Okay.

15 Q Do you see the fourth paragraph?

16 A Yes.

17 Q Have you read the fourth paragraph?

18 A Yes.

19 Q To your knowledge, is the fourth paragraph a

20 truthful statement by Dr. Fleming?

21 MR. LARSEN: Objection. Compound.

22 BY MR. LACY:

23 Q To your knowledge --

24 A To my knowledge --

25 Q -- is the fourth paragraph a truthful statement?




175



1 A No.

2 Q Why is it not truthful?

3 A Because I don't believe that Dr. Fleming had no

4 idea what the reporter was referring to.

5 Q And what's the basis of your making that

6 statement?

7 A Because the spreadsheet of information were

8 three lists, three variations of the same list that I had

9 seen in a file folder of recall information that was in

10 his office under the custody of his special assistant,

11 and I had all -- I had gone to him specifically and told

12 him these would be embarrassing because they were public

13 documents, those three lists plus the letter from

14 Dr. Fleming to Ed Kovac about the board of trustees and

15 their mole.

16 Q You mentioned a mole earlier. Do you know who

17 the mole was?

18 A No, I have no idea. But it was somebody who

19 Dr. Fleming was petrified could be identified if Kevin

20 Murphy received that document as part of his public

21 records request.

22 MR. LACY: Here's our next document.

23 (Plaintiff's Exhibit I was marked.)

24 BY MR. LACY:

25 Q What I've handed over is a document entitled




176



1 "Agreement For Legal Services - Ronald G. Brower &

2 Associates," that's the subject line. Mr. Smollar, have

3 you seen this document?

4 A No.

5 Q This is the first time you've ever seen this?

6 A Yes.

7 Q Under "Current Considerations," the first

8 sentence, "The district has received a request from an

9 attorney on behalf of retired Superintendent Dr. James A.

10 Fleming for a legal defense of the Superintendent with

11 respect to the various criminal allegations which are

12 currently being presented to the Grand Jury." Do you see

13 that sentence?

14 A Yes.

15 Q Do you have any knowledge of a grand jury

16 investigation of supervisor (sic) Fleming or the

17 district?

18 A Yes, from one or -- I guess maybe a story, both

19 the Register and L.A. Times.

20 Q That's your only knowledge of it?

21 A I think subsequently a conversation with Sam

22 Miller, the grand jury.

23 Q Now, the next sentence says, "The district is

24 being advised by General Counsel David C. Larsen with

25 the assistance of Special Counsel Paul Meyer with respect




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1 to the District Attorney's investigation." Do you see

2 that?

3 A Yes.

4 Q And you've testified earlier today that you were

5 aware of a district attorney investigation and, in fact,

6 have spoken with a district attorney representative; is

7 that correct?

8 A Investigator for the district attorney, yes.

9 Q Now, was that investigator an investigator or a

10 lawyer for the district?

11 A Investigator.

12 Q Investigator.

13 Why would the district attorney be investigating

14 the district?

15 MR. LARSEN: I'd object that calls for

16 speculation, lacks a foundation.

17 BY MR. LACY:

18 Q Do you have any knowledge of why the district

19 attorney would be investigating the district?

20 A Well, based on the questions that the district

21 attorney investigator posed to me when they came down --

22 he and a partner, who I don't remember her name, came

23 down to San Diego, as I think I previously had testified

24 today, they asked questions that crossed a wide range of

25 subjects.




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1 Q Did they ask any questions about closed-session

2 meetings?

3 A The only question -- and I think I testified

4 previous to this -- he asked what did I know about the

5 fact that there seemed to be an item evaluation of

6 superintendent on every board meeting agenda, closed

7 session.

8 Q So the district attorney did ask you about

9 closed session --

10 A In that context.

11 Q -- agendas?

12 A In that context, yes.

13 MR. LACY: All right, set that one aside for

14 now.

15 (Plaintiff's Exhibit J was marked.)

16 BY MR. LACY:

17 Q I've handed over Plaintiff's Deposition

18 Exhibit J, which the subject line states, "Appreciation,"

19 and it's dated October 31, 2005. Do you see that?

20 A Yes.

21 Q Have you ever seen this document?

22 A I don't remember it, but I'm sure I -- I'm sure

23 I did. I'm sure I read it, and I'm sure I probably had a

24 chuckle over the subject line.

25 Q Well, since you don't remember the document but




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1 you say you've probably received it, I won't ask you any

2 more questions on it.

3 A No, I mean I -- I have no doubt I received it.

4 Q You have no doubt you received it.

5 A Yeah. As I say, Ron Lackey sent me a lot of

6 documents, and I don't, you know -- I don't remember each

7 and every one, but this --

8 Q But you have no doubt you received this?

9 A Because the appreciation thing, that goes to his

10 point where he could actually be quite charming if he

11 wanted to.

12 Q That's good to hear.

13 (Plaintiff's Exhibit K was marked.)

14 BY MR. LACY:

15 Q This is Exhibit K, and this is another similar

16 document where the subject line says "Additional Request

17 for Information." Do you see that, Mr. Smollar?

18 A Yes.

19 Q Have you ever seen this document?

20 A Yes.

21 Q You do recall this document?

22 A I do recall this one.

23 Q Okay. And what is this document?

24 A Well, he's -- and I think -- my own personal

25 feeling is it was simply a misunderstanding about SELPA.




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1 And what SELPA represents -- SELPA being the South --

2 Special Education -- jeez -- Special Education, I think

3 something Plan Area, Legal Plan Area. And in a lot of

4 areas the SELPA's -- a SELPA, special education, you

5 know, planning area encompasses more than one school

6 district, but in Capo in 2002 we became our own SELPA.

7 And the directors of special ed for our district were

8 ipso facto the directors of SELPA, one in the same.

9 And I'm not sure that -- I never got -- I don't

10 think I ever got that point across to Dr. Lackey maybe in

11 clear enough terms that by not including the name of

12 Doreen Lohnes and Susan Roice, that we were trying to

13 hide anything, and I -- I think he thought we were trying

14 to hide something, and I just don't think we -- I have no

15 reason to believe that we were not presenting anything

16 but the facts about SELPA. But the SELPA plan, which he

17 always asked for, and the special ed plan for the

18 district were one in the same, they were coterminous.

19 And, otherwise, he was just thanking me because he found

20 the information at the front desk, you know, when it was

21 promised.

22 Q Was it typical for Dr. Lackey to thank you in

23 response to your assistance?

24 A It was, because I know that when he would try to

25 call other people in the district, he would either not




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1 get a call back, or he'd just be told, "Call Smollar."

2 So in some respects, I guess he thought that I had a

3 choice of whether to talk to him or not, I mean, I was

4 the designated person.

5 MR. LACY: This is another exhibit. And let me

6 apologize for the poor quality of it. This is L.

7 (Plaintiff's Exhibit L was marked.)

8 BY MR. LACY:

9 Q I'm not going to ask a lot of questions about

10 it.

11 A Okay.

12 Q I just wish to establish you had a

13 correspondence with Dr. Lackey, so let me just ask: Have

14 you ever seen this document?

15 A Yes.

16 Q And what is this document?

17 A This was -- there were a lot of people -- lot of

18 recall people asking for documents during this period of

19 time. This was right when the recall kicked off, and

20 they were collecting signatures. And there was another

21 recall proponent who I think just made up the story that

22 we wouldn't take a -- we would require a certified check

23 in advance of providing any copies of district documents,

24 which is absolutely false. And Linda Ross and Pat Cox,

25 my two receptionists, would tell everybody, and I told




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1 everybody, "Bring cash or check, we don't care. You

2 don't have to do anything in advance." Although some of

3 the trustees, particularly Sheila Benecke, had suggested

4 to me directly, and then she also contacted Dr. Fleming,

5 obviously, because he suggested to me could we not

6 require someone to pay in advance, and the law does not

7 allow that, and they dropped the subject.

8 But when Dr. Lackey -- you know, he didn't want

9 to pay the 15 cents. This was to reiterate him that we

10 take check, cash, you don't have to pay in advance. But

11 because at this point my feeling was that he might

12 have -- for whatever reason, he wasn't getting -- saying

13 that he got information from me, we started sending

14 communications to him by registered mail, certified

15 delivery, because I had also been accused by another

16 recall person, Brad Goff, of not sending something, and

17 this went right to the heart of the integrity of my job,

18 and I figured, okay, if we have to pay the $4.00 per

19 mailing to do a certified, limited receipt, we're going

20 to do it.

21 And the other two, he -- he saw on the activity

22 list -- I'm sorry, the warrant list that Rutan & Tucker,

23 you know, was always on there being paid. Well, that's a

24 monthly bill from Rutan & Tucker.

25 Q Hey, there's nothing wrong with it.




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1 A And he wanted to see what they were getting paid

2 for, and Dave Larsen, I think, directly told me, and I

3 ran that by him, and it was subject to attorney-client

4 privilege. So that's this document.

5 Q Thank you.

6 This is our next one.

7 (Plaintiff's Exhibit M was marked.)

8 BY MR. LACY:

9 Q Document M says at the top "Bylaws of the Board"

10 and "Actions By The Board." You testified earlier you're

11 familiar with the Web site, and I think you were

12 generally familiar with the bylaws of the board --

13 A Yes.

14 Q -- I think that was your testimony.

15 A Yes.

16 Q Have you ever seen this document?

17 A In electronic form, yes.

18 Q What is this document?

19 A It's sort of putting into specifics for the

20 board the -- I guess the government codes about what can

21 happen in a nonpublic meeting.

22 Q Is this a bylaw of the board?

23 A Yes. It's in the 9000 series. Board

24 procedure -- I'm sorry, Board Policy 9323.2(a).

25 Q Thank you.




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1 (Plaintiff's Exhibit N was marked.)

2 BY MR. LACY:

3 Q And what I've handed over is another similar

4 document, this is plaintiff's Exhibit N. It says at the

5 top "Bylaws of the Board," "Closed Session Purposes And

6 Agendas." And once again, Mr. Smollar, have you ever

7 seen this document?

8 A I have seen it in, again, electronic form.

9 Q And what is this document?

10 A It's the -- putting into board policy the

11 specific government codes that allow you to have a closed

12 session.

13 Q Is this a bylaw of the board?

14 A Yes, it's, again, in the 9000 series.

15 Could I just make it clear, because I don't

16 know -- you said someone reads this transcript. For the

17 record, that I don't write or have anything to do with

18 forming these bylaws --

19 Q We under- --

20 A -- and policies, I'm just making sure they get

21 up on the Web site.

22 Q Appreciate your testimony.

23 A Okay.

24 MR. LACY: I'm almost done. And I'm done with

25 documents for now. Let me just go through my notes.




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1 Q Who is Kate McIntyre?

2 A She was -- I guess she's still with the

3 district. She was the special assistant to the

4 superintendent.

5 Q Did you have a performance appraisal as an

6 employee of the district?

7 A No.

8 Q Who made the decision to hire you?

9 A As far as I know --

10 Q For the district.

11 A As far as I know, Jim Fleming.

12 Again, it was a competitive process, similar to

13 those you asked me about, where it's a double -- a double

14 inter- -- two-stage interview. Most public agencies

15 follow that process.

16 Q Did you ever have occasion in your career to

17 take any Brown Act training courses?

18 A Yes.

19 Q Can you tell me when you took a Brown Act

20 training course.

21 A I took one during when I was at Cal State Long

22 Beach, was offered by the headquarters of -- because it's

23 in Long Beach, Cal State. And then I had a seminar, a

24 one-day -- half-day seminar, that covered Brown Act and

25 public records, that covered those things in February or




186



1 March of this year at a firm in L.A., I took the train up

2 to L.A. for a half-day.

3 Q February or March of this year?

4 A Of this year.

5 Q I don't want you to speculate, but could the

6 firm be Lorman?

7 A Yes, that is the name of the firm. Because once

8 you take one of theirs, you never got off their e-mail

9 blast list.

10 Q And was the seminar at the -- the reason I'm

11 going to ask these questions is because I've taken the

12 same seminar, so -- was the seminar a half-day on the

13 California Public Records Act and another half-day on the

14 Brown Act?

15 A Basically. I mean, it was -- it covered -- it

16 covered a little -- some things beyond that that weren't

17 really germane to what I was interested in.

18 Q Right.

19 A But it was mostly on, you know, your

20 requirements as agencies.

21 Q Did someone in the district suggest that you

22 attend this seminar?

23 A No, I just saw it, and because Heather Wheeler,

24 you know, had taken the course at UC Riverside and had

25 come back with a few things, you know, about Brown Act




187



1 violations we were doing that I really wasn't even, you

2 know, fully aware of, I thought, you know, it might be

3 useful to do it.

4 Q And could you tell me once again what those

5 Brown Act violations were that Heather had identified to

6 you.

7 A Well, the main one was the failure to have

8 posted, you know, closed session -- some sort of closed

9 session minutes following, you know, a closed session.

10 And also, apparently, because the board would go back in

11 closed session late at night, they would -- even though

12 there's nobody there at midnight when they finally

13 adjourn, they didn't go back out into closed -- into open

14 session and announce any actions that they had taken in

15 closed session. And she, however -- she did -- was able

16 to rectify that and start to go out and sit at the dais

17 and talk to nobody, because nobody was there at the time.

18 Q And her name --

19 A Her name is Heather Wheeler. Her name is on

20 this document. I don't know which letter, but it's the

21 follow-up to the July 30th closed session.

22 Q Is Heather Wheeler still at the Capistrano

23 Unified School District, to your knowledge?

24 A To my knowledge, yes.

25 Q And what, again, was the timeframe of the Brown




188



1 Act training seminar that Heather Wheeler attended?

2 A I think it was sometime probably in spring of

3 '05.

4 Q Would it have been -- by spring of '05, would it

5 have been before July 30th, 2005, or after July 30th,

6 2005?

7 A Boy, I -- sort of a guess, but I think it would

8 have been before.

9 Q Do you know Heather Wheeler's telephone number?

10 A I don't know her new number, no. Because they

11 all have new telephone numbers now, there's a new

12 education center.

13 Q Okay. Do you have any knowledge of members of

14 the board of trustees attending Brown Act seminars?

15 A No.

16 Q Do you know if there is a policy at Capistrano

17 Unified School District to encourage members of the board

18 of trustees to attend Brown Act seminars?

19 A Well, there's an active policy. I think all but

20 one or two trustees have attended some leadership academy

21 that the California Association of School Board Members,

22 CSLBA, or whatever it is, offers, and you get a

23 certificate/diploma, and I think all but Marlene Draper

24 have completed that course. And Dr. Fleming completed

25 that course as an administrator and, I think, may have




189



1 actually taught in one of those sessions. Now, that --

2 it's about boardsmanship and incorporates more than just

3 Brown Act, but I understand that among the items in the

4 boardsmanship program that they get certified in

5 includes, you know, knowledge of the Public Records Act

6 and the Brown Act, open meetings act.

7 Q You mentioned earlier the name Sherry Hauf or

8 Sherry Hunt?

9 A Sherry Hahn, H-a-h-n.

10 Q Who is Sherry Hahn?

11 A She's the -- I think her title's chief business

12 officer for the district.

13 Q Do you have her telephone number?

14 A Not her new one, no.

15 Q You mentioned earlier a Kovac memo.

16 A Yes.

17 Q And you testified about a Kovac memo.

18 A Yes.

19 Q And I believe you testified about the disclosure

20 of the Kovac memo; is that correct?

21 A Yes.

22 Q I may have to be reminded of this, so, you know,

23 I'm supposed to be asking questions, but were you asked

24 to disclose the Kovac memo to the public?

25 A I was asked not to. I was told not to disclose




190



1 it by Dr. Fleming.

2 Q And were you told by Dr. Fleming not to disclose

3 it, even though David Larsen said that it was

4 disclosable --

5 A Yes.

6 Q -- under the California Public Records Act?

7 A Yes.

8 Q Now, did you report back to David Larsen that

9 Dr. Fleming told you not to disclose it?

10 MR. LARSEN: I'm going to object to the whole

11 line of questioning on the grounds of attorney-client

12 privilege.

13 MR. LACY: I'll respect that. For purposes of

14 the question only.

15 Q Did you disclose the document?

16 A To the public?

17 Q Yes.

18 A No. I might --

19 Q That's okay. It's all right.

20 What date did this event occur where Dr. Fleming

21 told you to not disclose the document?

22 A It would have been sometime in May 2005, shortly

23 after Kevin Murphy's public records request --

24 Q I see.

25 A -- had been received. And the -- the reason




191



1 why -- I would -- you know, if I didn't -- you know,

2 wasn't clear on whether a document -- because Dr. Fleming

3 would always say a lot of things, "Screw 'em. Don't even

4 answer 'em," and I had to go to Dave Larsen to cover

5 myself. But Dr. Fleming had made it very clear to me

6 early on that we had legal counsel, he went to legal

7 counsel and would ask him things, but it was

8 Dr. Fleming's decision when and how and whether he would

9 follow that advice or follow some other advice.

10 So it was not my calling to -- you know,

11 particularly on this memo. I mean, I've seen him react

12 viscerally over the years, but he really reacted, because

13 I thought he would have been more spooked by the list, to

14 be perfectly frank, but he was more spooked -- I mean, he

15 wasn't happy with the lists, he didn't want them

16 disclosed, but he was really, really spooked that that

17 information that Kovac had prepared could get out.

18 Q Again, your testimony is that Dr. Fleming

19 instructed you to not release the document in roughly the

20 spring of 2005?

21 A Sometime in mid-May, I can narrow it down to

22 that time period.

23 Q And when did you take the Lorman seminar on the

24 California Public Records Act?

25 A In February or March of this year, of 2006.




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1 Q Having taken the California Public Records Act

2 seminar from Lorman and looking back on the nondisclosure

3 of the Kovac memo, in hindsight, do you have any

4 different view on the disclosure?

5 MR. LARSEN: Objection on the grounds --

6 BY MR. LACY:

7 Q Or nondisclosure.

8 MR. LARSEN: Objection on the grounds of

9 relevancy.

10 THE WITNESS: I'm -- if you're asking me --

11 MR. LACY: Okay, he's objected, so I'm going to

12 withdraw my question.

13 THE WITNESS: Okay.

14 BY MR. LACY:

15 Q And I'm going to ask you this: Did the Lorman

16 seminar help you in your understanding of the California

17 Public Records Act?

18 A Yes.

19 Q Did it help you in your understanding of the

20 Brown Act?

21 A Yes.

22 Q Did that Lorman seminar help you in your

23 understanding of the Brown Act when you wrote your piece

24 for the Capistrano Dispatch, which is an exhibit in this

25 case?




193



1 A Yes, but --

2 Q You've answered the question.

3 A Okay.

4 Q Okay. Earlier today I asked you some questions

5 about whether or not David Larsen or Mike Darnold or

6 Marlene Draper had spoken to you at all about Ron Lackey;

7 do you recall me asking you those questions?

8 A Yes.

9 Q Okay. I'd now like you to tell me, in the

10 interest of time, if you can recollect any discussions at

11 all that you had about Ron Lackey with Shelia Henness,

12 Sheila Benecke, John Casabianca, Duane Stiff, or Crystal

13 Kochendorfer.

14 A John Casabianca, I don't think I ever had

15 conversation. Duane Stiff, the only time is I think he

16 came past me during a break in an open meeting after Ron

17 Lackey had testified and said, you know, "That SOB, what

18 the hell are we going to do with him?" -- I mean, that's

19 vintage, you know, Duane Stiff -- as he went to the

20 restroom.

21 Crystal Kochendorfer, probably over -- I can't

22 recall specifically, but I did have conversations with

23 her, because she was most -- other than Draper, for some

24 reason, she was most concerned with Dr. Lackey, because

25 he had been an opponent and was a potential opponent




194



1 again, and she would just always be shaking her head and

2 saying, you know, "What can we do about him? What is

3 there to do?" I don't know why they're asking me, you

4 know, I don't have a magic wand. I mean, they were

5 expressing their frustration.

6 MR. LACY: I'd like to take, if I can, just a

7 few-minute break just to consult with my client and see

8 if I have any other --

9 MR. LARSEN: Sure.

10 MR. LACY: -- questions to ask. Take about five

11 minutes.

12 MR. LARSEN: Sure.

13 (Recess.)

14 MR. LACY: We don't have anything else at this

15 moment.

16 FURTHER EXAMINATION

17 BY MR. LARSEN:

18 Q Mr. Smollar, you indicated that you had

19 discussions with Sam Miller about the grand jury; what

20 did Sam Miller tell you about the grand jury?

21 A He told me that the grand jury was going to

22 meet -- whenever the day of the district attorney police

23 coming to the district, it was that Friday, so in that

24 same conversation he told me that the grand jury was

25 convening.




195



1 Q Did he tell you how he knew that?

2 A No.

3 MR. LARSEN: I have no further questions.

4 MR. LACY: And we have no further questions, but

5 I would like to stay on the record, if I could, to

6 discuss further discovery and what we're going to do with

7 the deposition, how we're going to handle getting the

8 text and so on.

9 MR. LARSEN: Well, I would be willing to

10 stipulate that the original book can be mailed to him,

11 and he can sign it under penalty of perjury, if he'll

12 accept responsibility for doing that and returning it to

13 the court reporter, who will then notify both parties of

14 any changes, or she can send me the original, and I'll be

15 glad to notify you of any changes, and then if he doesn't

16 sign it and return it, that a copy can be used for all

17 purposes within the scope of the statutes.

18 How much time would you need to review it?

19 THE WITNESS: You say it's 200 pages?

20 MR. LARSEN: It's double-spaced.

21 THE WITNESS: Maybe, I don't know, could you

22 give me five days?

23 MR. LARSEN: Well, normally people have 20 to 30

24 days.

25 THE WITNESS: Oh, okay. All right, so




196



1 whatever's normal. Remember, I'm used to --

2 MR. LACY: I'm not planning --

3 THE WITNESS: -- deadlines.

4 MR. LACY: -- any motions, so within 20 to 30

5 days.

6 THE WITNESS: That's fine.

7 MR. LARSEN: We can go 30 days within which the

8 reporter will send it to you, and she will send a

9 stamped, self-addressed envelope for its return.

10 THE WITNESS: Okay.

11 MR. LARSEN: And that you'll return it to her

12 upon receipt.

13 THE WITNESS: Okay.

14 MR. LARSEN: So just to review the stipulation,

15 the original will go to the witness with a stamped,

16 self-addressed envelope, and the witness will sign it,

17 return it under penalty of perjury within 30 days.

18 And you'll send me the original. I'll notify

19 counsel of any changes that were made, and if the witness

20 fails to do so, a copy can be used for all purposes

21 permitted by law.

22 THE WITNESS: And your letter will instruct me

23 how to make any changes if I need to make any changes?

24 THE REPORTER: Yes.

25 THE WITNESS: Okay.




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1 MR. LARSEN: Is that acceptable, Counsel?

2 MR. LACY: Acceptable.

3 MR. LARSEN: Okay.

4 MR. LACY: Discovery. We would like to depose

5 Heather Wheeler and would like to know if you would make

6 her available to us or if you want us to go to the

7 trouble of preparing a deposition subpoena.

8 MR. LARSEN: Well, she is an employee. If

9 you -- actually, she's not a party. Let me talk to her.

10 I don't have a problem with making her available, but we

11 need to coordinate dates, so if you want to call me and

12 we can set up some dates.

13 MR. LACY: Okay. I will call you back. We

14 would like to depose her within a couple of months.

15 MR. LARSEN: That's fine.

16 MR. LACY: Okay.

17 MR. LARSEN: We'll probably to want to depose

18 Dr. Lackey at some point in time, but we can talk about

19 that too.

20 MR. LACY: Of course.

21 Would you have any objection of us conducting

22 the deposition of Wheeler here?

23 MR. LARSEN: No, that would be fine.

24 MR. LACY: And perhaps we'll use the same court

25 reporter, I'll get her card.




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1 MR. LARSEN: That will be fine.

2 MR. LACY: Okay, thank you.

3 I don't have anything else.

4 MR. LARSEN: Okay. Thank you.

5 //

6 //

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1

2

3

4

5

6

7

8

9 I, DAVID J. SMOLLAR, do hereby declare under

10 penalty of perjury that I have read the foregoing

11 transcript; that I have made such corrections as noted

12 herein, in ink, initialed by me, or attached hereto; that

13 my testimony as contained herein, as corrected, is true

14 and correct.

15 EXECUTED this _______ day of ___________,

16 20______, at ____________________, _________________.

17 (City) (State)

18

19

20 _____________________________
DAVID J. SMOLLAR
21

22

23

24

25







1

2

3

4 I, the undersigned, a Certified Shorthand

5 Reporter of the State of California, do hereby certify:

6 That the foregoing proceedings were taken

7 before me at the time and place herein set forth; that

8 any witnesses in the foregoing proceedings, prior to

9 testifying, were placed under oath; that a verbatim

10 record of the proceedings was made by me using machine

11 shorthand which was thereafter transcribed under my

12 direction; further, that the foregoing is an accurate

13 transcription thereof.

14 I further certify that I am neither

15 financially interested in the action nor a relative or

16 employee of any attorney of any of the parties.

17 IN WITNESS WHEREOF, I have this date

18 subscribed my name.

19

20 Dated: ____________________

21

22

23 _______________________________
LORRAINE CHAMPAGNE
24 CSR No. 6452

25