Fired Poway Unified superintendent Marian Kim Phelps has asked a judge to reverse her firing, saying it was based on “a sham investigation” after she was accused of having harassed high school softball players because they did not clap loudly enough for her daughter at a banquet last year.
An attorney representing Phelps said Tuesday she is preparing to file a lawsuit against the school district this month for allegedly breaching her contract and trying to destroy her career. “They terminated her for cause without having any cause at all,” Gregory Rolen said in an interview Tuesday.
A court petition filed by Phelps’ attorneys on May 30 in San Diego Superior Court reveals for the first time in detail Phelps’ side of the story in the controversy surrounding the Del Norte High School varsity softball program, which Phelps’ daughter and graduating senior Jessica has played on for four years.
Marian Kim Phelps, superintendent of Poway Unified School District.
(Courtesy PUSD)
The petition comes months after allegations were first leveled by Del Norte coaches, parents and students in November saying that Phelps had harassed players in the weeks following the banquet in an effort to get them to admit that they had conspired not to applaud Jessica.
Phelps said in her petition that Jessica had been bullied for more than a year and a half by another player on the team and that player’s parents, resulting in that player getting other players not to clap for Jessica at the banquet. Phelps has denied in interviews with media outlets that she ever threatened a student.
Her petition was prompted at least in part by a public record request by The San Diego Union-Tribune asking for a copy of a notice that the district had provided Phelps explaining why she was being terminated. Phelps’ petition seeks to prevent public disclosure of that notice.
The notice could provide some of the only details as to why the school board fired Phelps on April 30. The district has refused to detail its allegations of misconduct against Phelps or release a copy of its investigation findings about Phelps in response to public record requests.
Poway Unified serves about 35,000 students and is the third-largest school district in the county. Phelps had been the superintendent since April 2017.
The district’s legal support specialist, spokesperson and board president did not immediately respond to requests for comment.
‘Profoundly disappointed’
In her filing, Phelps blames much of the softball controversy on a player and her parents who she says bullied and harassed her daughter because of privileges they believed she received as daughter of the superintendent.
Phelps’ description of the student shares several similarities to that of the softball player who sued Poway Unified and Phelps last year, alleging a campaign by Phelps of harassment and punishment against her and other players following the banquet.
That lawsuit did not name the plaintiff, a minor at the time. Justin Reden, her attorney, would not confirm whether his client is the same player that Phelps now accuses of bullying.
In a statement provided through Reden, the student plaintiff’s family called Phelps’ lawsuit “another attempt to manipulate the narrative and avoid consequences.”
“We are profoundly disappointed by Marian Phelps’ continued attempts to deflect accountability and harass teenage girls in high school and their families,” the family said.
In a statement, a spokesperson for Phelps called the student plaintiff’s allegations in that lawsuit “completely false.”
“Dr. Phelps is looking forward to the lawsuit moving forward, as she is 100 percent confident that the allegations being made against her will not survive cross-examination,” Phelps’ spokesperson, Rolando Bonilla, said.
Cease-and-desist
In her own petition, Phelps alleges that she was denied due process during the district’s most recent investigation, which was begun by the law firm Dannis Woliver Kelley in December and concluded on April 18 .
For example, during her investigation interview on Jan. 31, Phelps said she wasn’t given a chance to address the allegations that ultimately got her fired. The day after her interview, she was put on paid administrative leave.
Phelps said that in March, she was served a cease-and-desist letter from the district hours after speaking by phone with Del Norte High athletic director Amanda Waters-Nelson, who had helped conduct the initial investigation into the dispute between Jessica and the other softball player before a law firm got involved.
During the phone call, Phelps asked Waters-Nelson if she had kept text messages between them, she said in her filing; Waters-Nelson told Phelps she had kept them and given copies to the law firm investigator.
Hours later, the district served Phelps the cease-and-desist letter saying she had engaged in retaliatory and harassing conduct toward Waters-Nelson.
Waters-Nelson could not be reached for comment Tuesday.
Rolen said Phelps was never given a copy of the final investigation report by Dannis Woliver Kelley.
“(Poway Unified) hires an investigator ... (who) is the sole determinant of who’s telling the truth or who isn’t, and yet doesn’t share the investigation with anybody,” Rolen said.
‘Lost all confidence’
Phelps says she received the district’s letter indicating its intent to fire her on April 23. The district told her it had grounds to fire her because it said she had violated her employment contract, committed “neglect of duty,” “immoral conduct,” “unprofessional conduct,” dishonesty, “unfitness for service” and violation of school laws, according to Phelps’ filing.
Phelps said she sent the board a legal brief on April 29 arguing that the conduct the district had alleged in the letter was inaccurate and insufficient legal grounds for termination.
The following day, the board decided at a closed-session meeting — which Phelps attended with her counsel — to fire her.
“The investigation brought to light previously unknown evidence from witnesses with direct first-hand knowledge, that contradicted Dr. Phelps’ statements and assertions to the board, district staff, and the public,” Poway Unified board president Michelle O’Connor-Ratcliff said in a statement released that day.
“Based on her conduct, as revealed to the board through the investigation, the board has lost all confidence and trust in Dr. Phelps’ ability to continue to serve as superintendent, as well as in her ability to continue to work collaboratively with the board as part of Poway Unified’s governance team.”
In asking the court to reverse her firing, Phelps’ attorneys argue that the district failed to meet the legal standards for the reasons it gave for its decision. For example, the board terminated her for “immoral conduct,” but her attorneys argued that prior case law has established “immoral conduct” as conduct far worse than what has been alleged regarding Phelps, conduct such as criminal sexual behavior or drug use.
“The Board failed to allege any conduct that could conceivably impact (Phelps’) ability to teach or administer the District,” Phelps’ attorneys wrote.
Phelps’ filing also blames her firing on “a vocal minority of politically motivated activists” it says helped fuel the controversy surrounding Phelps, referring to members of the groups PUSD Community Watch and Californians For Equal Rights Foundation. Phelps argues she was fired not because of her conduct or job performance, but in order to appease those activists.
‘No right to privacy’
The Union-Tribune has for months sought records about the district’s investigations into the Del Norte softball controversy.
The district denied an April 23 request by the Union-Tribune for a copy of the investigation report, saying that its disclosure would violate the privacy of students implicated and that the report was protected by attorney-client privilege.
But in response to another Union-Tribune request, the district did say it could disclose the letter in which Poway Unified explained to Phelps why she was being fired. Phelps’ employment contract required the district to provide her such a letter when firing her for cause.
Poway Unified legal support specialist Darl Danford acknowledged to the Union-Tribune that the letter was disclosable under the California Public Records Act but did not immediately provide it. Instead, the district said it would let Phelps know that it planned to disclose the record.
Phelps’ petition argues the letter is part of her personnel file and thus is exempt from public disclosure, and that she has a “substantial privacy interest ... which outweighs any public interest in the disclosure.”
“(Phelps) has a substantial privacy interest in preventing the private, false, and harmful information set forth in the Notice from being disseminated in the media,” attorneys wrote in a legal memo accompanying the petition.
But legal experts said a superintendent in a case like this would have no right to keep the letter private.
High-ranking public officers, like superintendents, have a “significantly diminished expectation of privacy” because of their high position, said David Loy, legal director of the First Amendment Coalition.
There is also no right to privacy when a public agency finds that the officer committed misconduct, as Poway Unified did, Loy said.
“She has no right to privacy, and the public’s right to know clearly outweighs any claim of privacy when you’re the superintendent,” Loy said of Phelps. “There’s no question.”
