Recordings indicate trustee was at meeting despite her denials

School board trustee Dominic Falasco was set up to secretly record a meeting with a fellow board member and the contractor who, prosecutors say, was willing to pay bribe money to win a project when he was surprised to see a third trustee already there.

“How you been, Marlene?,” he asked, according to an investigator’s report about the Feb. 2 meeting. Falasco, it says, was greeting Marlene Smith.

Smith has not been charged in the ongoing public corruption case that has embroiled the Los Banos Unified School District, resulting in felony charges being filed against trustee Tommy Jones and Greg Opinski, a prominent contractor who serves on the Merced Union High School District board.

And while investigation records indicate Smith was at Jones’ home during the meeting to discuss the contract for the multimillion-dollar project to expand Mercey Springs Elementary School, she has denied being at such a gathering.

When the school board met Sept. 8, more than a week after Jones and Opinski were arrested, trustee Dennis Areias pointedly asked Smith, on behalf of his constituents, whether she had ever met with Opinski at Jones’ home.

“She responded that she had not,” according to minutes of the Sept. 8 meeting that were approved unanimously by the board last week.

During the school board’s meeting Thursday, the 56-year-old Smith again brushed off questions about the gathering at Jones’ Los Banos home.

“I have not done anything wrong or illegal in any circumstance that would put our district at risk in any kind of way, despite what Mr. Areias has stated,” she said.

Even if she had met with someone in private, she said, that was her personal business and “it certainly wasn’t to discuss the Mercey Springs expansion.”

Smith declined to speak with the Los Banos Enterprise about her presence at the Feb. 2 meeting or her denial of such a gathering.

In an emailed response to an Enterprise inquiry Monday, Smith didn’t comment on whether she was present at the Feb. 2 meeting.

“I will leave any unanswered questions and further questions to the DA’s or the investigators if requested on this case,” Smith states in the email. “As of today, I have not spoken to anyone involving this investigation. ... I have no further comments.”

Merced County District Attorney Larry Morse II said he couldn’t discuss whether any other members of the school board are subject to the investigation or not, or any charges they may face.

“We will follow evidence wherever it might lead us,” Morse said, noting that it was important not to compromise Opinski’s and Jones’ right to a fair trial. “We’re going to make most of our statements in courts of law going forward.”

Jones and Opinski, who have denied any wrongdoing, are scheduled to be arraigned Wednesday in Merced Superior Court.

The Merced Sun-Star and Los Banos Enterprise obtained case reports from Merced County District Attorney’s Office investigators that say Smith was at the Feb. 2 meeting with Falasco, Jones and Opinski and that the discussion included the Mercey Springs Elementary School contract.

Investigators believe Opinski shuttled $12,000 to Falasco through Jones in exchange for Falasco’s swing votes on matters favoring Opinski, including awarding his firm a $540,000 contract to expand Mercey Springs.

Falasco cooperated with the District Attorney’s Office by secretly recording conversations with Jones and Opinski.

According to a report by lead investigator Anna Hazel, Falasco agreed to meet with Opinski and Jones at Jones’ home about 7 p.m. Feb. 2. The meeting was video and audio recorded, Falasco said.

Hazel, who was positioned a block away from Jones’ home, reported that when Falasco entered the home, she could recognize Opinski’s and Jones’ voices.

“However, I could hear a female voice speaking in the background and it was not until Falasco stated, ‘How you been, Marlene’ that it became evident that a third member of the Los Banos Unified School District (LBUSD) Board, Marlene Smith, was also present inside Jones’ home,” the report states.

Falasco confirmed to Hazel that Smith was present at the meeting, according to the report.

“I was shocked when I walked in the door and saw her there,” Falasco told the Enterprise on Thursday.

The report details a conversation between the three trustees and Opinski centered around the Mercey Springs project, which was on the agenda for the Feb. 4 board meeting.

Smith is mentioned several times during the conversation.

“Jones, Falasco and Smith all agreed” they didn’t support then-Superintendent Steve Tietjen’s proposal to choose a “lease-leaseback” construction method for the project, according to the report.

In another instance, the report says Smith “was surprised” when Falasco said another trustee, John Mueller, had also expressed opposition to the method.

The report states that Opinski tried to “sell” Jones, Falasco and Smith on the “construction manager multi-prime” method, which eventually was approved with votes from the three trustees and a fourth board member, Carole Duffy.

According to the report, in addition to Opinski talking with them about other aspects of the Mercey Springs project, the remainder of the meeting was mostly Opinski drafting “exact language for the proposals he wished for Falasco and Jones to bring forward at the next meeting.”

Falasco said that, during the meeting, Smith asked about the differences between the two methods and was “more listening to what was going on.”

This story was originally published October 17, 2016 at 5:44 PM with the headline "Recordings indicate trustee was at meeting despite her denials."