BUSD reveals spending on sexual harassment case

Much of the costs of dealing with a harassment case at Berkeley High were covered by the district’s insurance company. Photo: Frances Dinkelspiel

By Anika Anand, California Watch

The Berkeley Unified School District spent $172,697.15 on a sexual harassment lawsuit brought by a high school student against her guidance counselor, according to records provided by district officials more than a year after they were first requested by California Watch.

All but $46,281.25 of the cost of investigating, defending and settling the case involving Berkeley High School counselor Anthony Smith was paid by the district’s insurance carrier, Deputy Superintendent Javetta Cleveland said in a telephone interview.

Cleveland revealed the information after California Watch reported that since July 2011, district officials had not responded to repeated requests for a breakdown of their spending on the controversial case.

California Watch and a legal watchdog group, the First Amendment Coalition, filed the requests under terms of the state Public Records Act. Peter Scheer, the coalition’s executive director, said district officials had violated state law by failing to respond.

The case itself involved a student identified in court records by the pseudonym Lilah R. In a lawsuit in federal court, she contended in 2010 that Smith had harassed her for much of her junior year and the school district refused to do anything about it.

Smith said he did nothing wrong and still works as a counselor at the high school. Superintendent William Huyett told the girl’s parents that Smith’s conduct was “inappropriate and unprofessional,” but not sexual harassment, court records show. The district settled the lawsuit earlier this year.

According to district records, the spending on the case broke down this way:

  • $21,281.25 paid to Pleasanton lawyer Marleen Sacks’ firm to investigate the girl’s allegations
  • $67,607.54 paid to Pleasant Hill lawyer James Marzan’s firm. He represented the school district in the lawsuit.
  • $26,308.36 to the firm of San Jose lawyer Mark Davis, who represented the counselor
  • $57,500 to the girl to settle the case

Cleveland said the district’s insurance policy paid the settlement, along with the legal bills submitted by Marzan and Smith’s lawyer – $151,415.90 total. The district paid for the investigation by Sacks’ firm and also paid the $25,000 deductible on the insurance claim, she said.

Cleveland said the settlement would not affect the district’s rates.

“One case of this small amount would not change our premium,” she said.

In a statement last week, the school district complained that “there were some statements which were not accurate” in California Watch’s original story. The district claimed it had “satisfied the requirements” of the Public Records Act requests because trial lawyer Marzan had given an interview to a California Watch reporter about the district’s spending.

But as the story reported, Marzan provided incomplete information about how much money the district had spent on the case. He also did not provide public records, which California Watch had requested repeatedly.

The district’s statement also asserted that it was legally entitled to withhold the payment information because it had been “involved in ongoing litigation.” But none of the requests filed by California Watch or the First Amendment Coalition sought information about the sexual harassment lawsuit – just the amount of money the district spent on the case.

Scheer, the First Amendment Coalition director, said the law requires agencies to either turn over requested documents or explain in writing the legal justification for keeping them secret.

“Whether or not they had to turn over the records, it’s indefensible for them to simply remain mute,” he said.

Senior reporter Lance Williams contributed to this report.

This story was produced by California Watch, part of the Center for Investigative Reporting. Learn more at California Watch

BUSD responds to Berkeley High harassment story [07.30.12]
Costs unknown for Berkeley High School harassment case [07.25.12]

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  • Mein Stein

    $172,697.15 would have been a cheap price to get rid of Smith. The school board and the union will wear this fetid albatross around their necks for a very long time. 

  • PragmaticProgressive

    So if his conduct was “inappropriate and unprofessional,” why does he still have a job?

  • bgal4

    Ironic twist

    Marleen Sachs attorney for BUSD is a strong citizen advocate in her hometown of Oakland for good governance and fiscal responsibility.


  • berkopinionator

    BUSD should use qualified in-house staff attorneys on fixed salaries instead of paying hourly attorneys.  This is what all major insurance companies do.  BUSD should immediately fire any employee determined to have engaged in this type of misconduct.   BUSD money would be better spent paying the salary of an in-house staff attorney to defend against any such employee who is foolish enough then try to sue the district.  The clear message from BUSD is that protecting a guilty employee is more important than student safety. 

  • Anonymous

     And why did we pay $26K of his legal fees?

  • TN

    Employers pay the legal costs of employees being sued civilly for actions taken in the course of their jobs duties. Criminal charges are a different matter.

    If the employers didn’t pay, think of the consequences. A complainant could sue some employee  as well as their employer. If the employee couldn’t afford a defense, they’d be screwed.

    And don’t think that teachers don’t get sued. We live in a very litigious society with people willing to spend money suing for very dubious reasons. An Albany High School teacher is now being sued over a grade she gave to a student.

  • Anon

    Yes, BUSD, like most other public bureaucracies, is run primarily for the benefit of its “vested” employees, not the tax paying public, nor the specific consumers of the government function (in this case students).

  • The Sharkey

    I would think that this kind of behavior, which is explicitly forbidden by his employer, would be outside “the course of the job duties” for Mr. Smith.

  • TN

    You’re assuming that the charges were valid on its face. The determination of whether or not the allegations are true, is supposedly the purpose of the legal process.

    I agree with many that the counselor in question sounds like a creep. And probably the school district should have acted before anything happened. But they didn’t.

    A policy of not providing funds for a civil legal defense for employees for their on the job actions would lead to a big mess.

  • PragmaticProgressive

    And yet the facts are in now and he still works there. WTF?

  • PLS

    I am confused by one statement in this story. “$21,281.25 paid to Pleasanton lawyer Marleen Sacks’ firm to investigate the girl’s allegations.”

    I understand that Saks was hired to do the initial investigation. That would have been spring/summer 2010.
    I attended a hearing in Oakland court regarding the restraining order
    against Anthony Smith. At that court appearance he was represented by Marleen Sacks. I don’t remember the date but Doug Oakley was there and wrote a story about it. It was in late 2010 I think.

    If an investigation was done by a supposedly *independent* investigator but that person is then representing the alleged perpetrator in court – e.g. Smith as the client, Saks as his defense attorney – why is that now being reclassified as a fee for investigation? Saks was in fact his defense attorney so how could she have been an independent investigator? Something isn’t right here. Or at least I don’t understand this explanation.

    If she did go from being an independent investigator to being Smith’s defense attorney, we have to wonder how independent her investigation really was in the first place. Don’t we?

  • Anonymous

    That makes sense, thank you for the explanation.

  • cl3

    What can be done to remove this creep and the people protecting him? Organize a protest by parents? Students boycott receiving his “counseling?”

  • PragmaticProgressive

    The administration isn’t very credible on a lot of fronts.  And the board is not holding them accountable because it’s busy spending a BILLION dollars on construction projects, NOT finding a superintendent, and abetting the administration’s policy of educating the entire East Bay on Berkeley taxpayers’ dime.

    If you want more of the same, vote for Judy Appel, who is the heir apparent to John Selawsky’s seat on the Board and is endorsed by a lot of the people who are responsible for the current state of affairs at BUSD.