(This letter was published on Del Mar Union School District News blog.)
April 26, 2010
Daniel R Shinoff, Esq.
Stutz Artiano Shinoff & Holtz
2488 Historic Decatur Road, Suite 200
San Diego, California 92106-0113
Re: McClain re DelMar USD
Dear Mr. Shinoff:
This letter is a demand on behalf of Dr. Sharon McClain that you retract the
following false and defamatory statement that you are recorded as making in your
April 15, 2010, interview by Marsha Sutton that was published in the Del Mar Times
on April 15, 2010:
1. False statements that the Board of Education did not agree to, and that
there was no documentation to support. change §8-E of Dr. McClain's
Ms. Sutton's transcript records you as saying for "the $16,000 issue" 1 that "there
is no paperwork to support a change in her contract," "there was nothing that
indicated that there was action taken to increase her salary" and "that" 2 wasn't
what the board had in mind in any event. As you well know because have received
the document on multiple occasions, the Board of Education agreed on June 17,
2009, to the change proposed by Dr. McClain - but then, after it hired you, the
Board's majority, and you refused to acknowledge the Board's action. A copy of
the minutes of that Board action is attached.
The foregoing false statements by you were made in a broader context of your
falsely blaming Dr. McClain for the breakdown in settlement negotiations by your
innuendo that she was, without justification, insisting that the Board implement the
Board's June, 2007 [sic], action - most specifically reflected by your statements
"...and she retained an attorney, and everything became predicated upon the
board capitulating to this demand for a salary increase which had never been
agreed to" and "there were all kinds of threats of litigation." As you well know,
settlement negotiations were sabotaged by the Board majority because Dr.
McClain made a settlement proposal and proposed a mediator to try to get the
matter settled, but the Board declined to even respond or further negotiate in
response to her last settlement offer.
These statements have a defamatory sting because they attribute to Dr. McClain
the conduct of demanding that the Board do something it had not agreed to do in
the broader context of your falsely asserting that Dr. McClain's insistence on doing
so caused the breakdown of attempts to consensually resolve the issue.
2. False statements Ihat Dr. McClain refused to permit the expression by
you and the Board of the asserted causes for her termination.
Ms. Sutton's transcript records you as saying [s]he chose not to have those heard
in open session despite the fact that she asked for an open session - and "[s]he
didn't want to have an open session to discuss the charges."3 Dr. McClain did not
choose to prevent you from stating the grounds for termination, and she wanted
an open session to discuss the charges. Dr. McClain formally communicated to the
Board that she wanted the proceedings on March 31 in open session rather than
closed session; she neither wrote anything rescinding that request nor orally
stated that she wanted anything to occur in closed session. If you chose not to
articulate the purported cause(s) for the Board majority's action, it was your
unilateral choice to do so - presumably because you recognized the utter
bankruptcy of the purported cause(s).
The interactions which you attempt to mischaracterize as Dr. McClain choosing not
to have the cause(s) heard in public arose from sneaky conduct on your part to
which Dr. McClain objected. Shortly before the proceedings began, you told her
that you and she should speak for 20 minutes. A fair-minded person would have
communicated this expectation in advance rather than trying to disadvantage his
adversary by communicated it at the 11th hour. Dr. McClain took exception to your
belated notification because she only expected to speak for around 5 minutes. She
told you that she thought your belated notification of this expectation was wrong
and that she only expected to speak for about 5 minutes. Having been challenged
by her for you sharp practice, you responded by agreeing that you would only
speak for 5 minutes. Dr. McClain said nothing indicating that you should not state
the cause(s) by which the Board majority was purporting to terminate her contract.
On the contrary, she expected you to state such cause(s) and to respond to
whatever you or the Board majority had dreamed up. But Dr. McClain is not
long-winded, and she knows that there is no valid cause to terminate her contract.
So she would have had a short message if you had articulated the purported
The foregoing false statement has a defamatory sting because it is made in the
broader context of your interview responses suggesting that Dr. McClain has
something to hide and did not want the purported cause(s) part of the public
record. Your interview then makes conclusory assertions that Dr. McClain failed to
comply with the law and failed to perform her job as Superintendent, implying there
is substance to the cause(s) but relieving the Board majority and you of the
responsibility of articulating them - all with the false innuendo Ihat Dr. McClain has
something to hide.
3. False statement that Dr. McClain is lying about knowing the cause(s) for
the termination of her contract.
Ms. Sutton's transcript records you as saying, with respect to the "charges," 4 "... I
heard she said. 'I have no idea what they're talking about.' Well, that's just not
true." But it is true. What Dr. McClain knows is that she has followed the
contractual process of responding to every potential "cause" to terminate her
contract that you have drafted for the Board majority by responding as required by
the contract - i.e., by rebutting what was false in such documents and by
remediating where there was even arguably anything to remediate. Dr. McClain is
quite aware that you have been, since you were hired last summer, trying to create
a paper-trail to justify the termination of her contract, but she is also quite aware
that she has always appropriately responded pursuant to the provisions of the
contract to each such attempt and that, after she has done so, the Board majority
has not reasserted any such potential causes. So she was and is mystified as to
what purported cause(s) the Board majority allegedly relies upon. Dr. McClain is
therefore requesting that the Board majority communicate to her the purported
cause(s) upon which it relies.
The foregoing false statement has a defamatory sting because it asserts that Dr.
McClain is lying to the community as to what her knowledge of the Board majority's
4. The false assertion that Dr. McClain broke the-law by releasing your
(redacted) invoices to the District.
Ms. Sutton's transcript records that she asked you "Was her releasing your
invoices [last December] a violation of the law?" and that you responded "Yes."
The invoice's descriptions were redacted - redacted by another attorney on behalf
of the District and not by Dr. McClain. Redacting the invoices was not even
necessary because the only information that would have been in them would be
foundational information about the existence of a privileged communication, which
is not privileged information. Your invoices are a public record; the public is
entitled to know the fees that are being paid to you. The invoices have no legend
indicating that they are protected by the attorney-client privilege (nor are they nor
would that insulate them from public disclosure. The invoices were available to Dr.
McClain in the ordinary course of her duties. Nothing was done by you or the
Board majority to protect any arguable confidentiality until you were upset that the
amount of your fees had been disclosed to the public. While I can understand that
you are unhappy about the disclosure of how much your income has been
fattened by this engagement to do the Board majority's dirty-work, it is simply
untrue that Dr. McClain violated any law by disclosing those invoices.
The foregoing false statements were presumably made in the course of your
representation of the Board of Education of the Del Mar Unified School District.
They create liability for slander and conspiracy to libel for your client, for you, and
for your law firm. Demand is made that you retract each and every one of them.
While even a retraction would not necessarily eliminate the legal harm, Dr. McClain
would prefer to avoid litigating these issues and would forego suing for the
defamations if they are appropriately retracted. However, in the event they are not
appropriately retracted, she reserves her legal remedies for defamation against
your client, your firm, and you.
GRONEMEIER & ASSOCIATES, P.C.
By Dale L. Gronemeier
Attorney for Sharon McClain
|San Diego Education Report
|San Diego Education Report
Daniel Shinoff accused of defamation: