by Rick Mercurio
An ominous trend, in which restraining orders and other legal maneuvers target elected officials who allegedly speak out against the majority, has resurfaced in North County.
The threat of “workplace violence” is the most common assertion used to obtain temporary restraining orders (TROs). Yet in two of the most publicized cas-es—Jose Fragozo, a Trustee of the Escondido Union School District, and Kathleen Sterling, a former Director of the Tri-City Healthcare District—judges denied motions to make the TRO permanent, citing a lack of evidence. Critics of such efforts say that majorities on elected panels want to silence dissent, although some administrators and fellow elected officials claim to be threatened. Meanwhile, enormous sums of tax-payer dollars have flowed into the coffers of attorneys and their law firms, even though the targeted in-dividuals have prevailed. The result, say some, has harmed the taxpay-ing public, the people or children served by the board, and most importantly, it has tended to stifle whistle blowers or others who dare to challenge the “establishment.”
In her first election to Tri-City, in 1998, Sterling defeated a 16-year incumbent by a wide margin. She came to the Board with a back-ground in health care stewardship, at a time when Tri-City was dogged with charges of mismanagement and patient complaints. “I rolled up my sleeves,” she said, expecting to work together with the other directors to make needed improve-ments. What she soon found, however, was disturbing. “What I did not ex-pect was the ‘high gear’ the general counsel(s) were about to engage in to cover-up years of abuse and risk against the people of Tri-City,” she stated. “Immediately, the compro-mised board began receiving the guidance, advice, and recommen-dation of the general counsel(s) so as to protect the CEO and themselves from the most obvious appearance of multiple conflicting interest whereby many relation-ships benefited from the insider deals taking place at the taxpayers’ expense.” Among other problems, Tri-City faced infighting over leadership, patients who defected, and a lack of confidence from voters who turned down bond proposals. Tri-City was rated “below average” in sever-al categories relating to “patient experience.” In 2008 eight top administrators were put on paid leave while the hospital’s finances were investigated. In 2009 the CEO was fired.
What Sterling also began to discover, she said, was that the board was “riddled with conflicts of interest,” and that self-serving
hospital officials were threatened by the questions Sterling began to ask. “Oversight and accountability were my goals,” she said. “There was illegal physician recruitment,
and our finances were made to look like we had more money than we did in order to boost bonuses.”
Sterling’s 2008 election platform called for no management bonuses and no stipends for doctors. She met top officials one on one, asking tough questions, only to be told to make her case public, she said. But when she did, “they already had the deals cut and didn’t like me questioning them.” That was when the retaliation really ramped up, she said.
First came the censures, many of them, all with a common thread of accusations: intimidation, harassment, threats, name-calling, outbursts, disruptions, insults, and of-fensive language. Sterling continues to deny the substance of these allegations, saying that she “acted appropriately” and that she was “right 99% of the time; just look at the public record.”
The censures resulted in much more than an official finger wagging. Ultimately, her fellow Board members took away her stipend, stripped away her health benefits, and forced her from Board meetings by requiring that she participate from another room via teleconference. Then came the TRO, which was overturned in court. Sterling says she was “treated like an inmate, with the guards even pushing me. I was made out to be the most hateful, vicious person, which is not true.”
Sterling says that her ongoing persecution took a toll. “I was unemployed, hurting financially,” she said. “I had to take a stress-related medical leave, and needed therapy.” She said her lack of financial resources led her accusers to assume she would not be able to afford an attorney, when the other side had three well-paid lawyers. “Everybody made money off of me.”
In addition to the censures, the financial punishments, the physical isolation require-ment, and the unsubstantiated TRO, Sterling soon faced criminal charges. These stemmed from supposed accounts of “bribery,” as well as a subsequent Board meeting when Sterling voted on a resolution involving her own stipend. DA Bonnie Dumanis eventually dis-missed both the felony and misdemeanor charges “in the interest of justice,” stating that prosecutors determined the cases were not strong enough to move forward. Similarly, the Tri-City district lost its appeal of the TRO denial.
But the lawyers continued to add up their billable hours, to the tune of an estimated $1.2 million. Judge Richard Mills, ruling in favor of Sterling, noted the costs each side was incurring and that Tri-City had been represented by three lawyers at all times. “The taxpayers have funded the board in all these actions,” Mills said, “and obviously these proceedings are very expensive…”
More recently, Escondido’s elementary district trustee Fragozo experienced a similar story. As a Latino, Fragozo is the only ethnic minority on the board, and the only demo-crat. He has been outspoken in his efforts to revamp the way the district instructs English Language Learners. He also raised questions about the district’s declining enrollment, while many say the board majority is catering to charter schools which are disproportion-ately filled with white students.
Like Sterling, Fragozo’s fellow board members and top administrators charged him with threatening behavior and “workplace violence.” In December they filed for a TRO, which kept him 300 yards from school property and meetings. Fragozo found himself in isola-tion during board meetings, participating via cameras and microphones, just as Sterling had done. Many in the Escondido community rallied to his cause.
The case was heard in Vista Court and Judge Richard Whitney ruled on March 25. During a one-hour verdict Whitney said that granting a permanent restraining order would effectively end Fragozo’s term as a board member. Although the judge counseled anger management, he criticized administrators for being overly sensitive to Fragozo’s actions and requests.
“I think Mr. Fragozo is extremely passionate, but I don’t believe there is convincing evidence to come to a very drastic remedy that basically serves to silence a school board member and terminate him from his position,” Whitney said. “He can’t function as a school board member,” with a restraining order in place. Fragozo was satisfied, though somber in his assessment.
“The big winners are our kids, our teachers, our parents, so we can put the focus back on our school district, ” Fragozo said, after the ruling.
Once again, taxpayers had been tapped to pay the steep attorney fees. Besides that issue, some see more serious charges of prejudice in what happened. After Fragozo’s court victory, the National Action Network said it would “organize and investigate actions” of the law firm that went after Fragozo, according to the Escondido Grapevine. A NAN spokesman asserted that the law firm “targeted minority school board representatives, attempting to silence them while taking huge taxpayer-funded fees representing school districts in restraining order attempts.”
Certainly both Fragozo’s and Sterling’s cases have two sides. Good behavior and judg-ment have been cited as necessary qualities for all public figures. Judge Whitney noted, in his exoneration of Fragozo, that “you can’t frighten people; they have to be able to work with you.” One judge in Sterling’s case, even while denying the permanent restraining order, noted that some board members and administrators had certainly experienced
But is it proper to spend so much taxpayer money trying to silence certain outspoken elected officials, in an attempt to keep them from doing their job for their constituents? Despite the efforts of well-paid attorneys who put forth their best cases before the courts, the presiding judges answered “No.”
Sterling defends her actions. “I feel I’ve been targeted because I ask questions and request supporting documents before I make an informed voting decision,” she said. “But they are taking the district’s limited resources and shifting it into the lawyers’ pockets so as to use the legal system as a bully pulpit, while doing it at taxpayers’ expense.” Sterling, who has been off the Tri-City board since 2012, believes others need to learn from what happened to her and Fragozo. “They use ‘workplace violence’ as a weapon against something like an email,” she said. “What reasonable person would get so upset over an email?”
“People have to know what is happening,” she said. “The citizens hire elected officials to represent them and to provide oversight and accountability. We need to give hope to individuals.”
Waxing philosophical, Sterling noted a profound statement from U.S. Supreme Court Justice Potter Stewart: “Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.”
Rick Mercurio is Alianza North County’s Lead Reporter.