State

Trustees zero in on resolution of conflict

After releasing details of the friction between Modesto City Schools' top two administrators, trustees soon will consider how to end the conflict.

That could mean negotiating a settlement with Deputy Superintendent Debbe Bailey, who has been on paid leave since April 27. She makes $165,000 a year; her contract extends through June 2010.

Or it could mean trying to fire Bailey for cause, in which case the district would not be liable for the remainder of her contract. Termination could spark a legal battle.

After Bailey's suspension, officials discovered inflammatory e-mails questioning Superintendent Arturo Flores' actions and voicing concerns about the district's financial well-being. Many of the e-mails were between Bailey and Pat Nan, Flores' secretary, as well as to the Modesto Teachers Association of- ficials and school board Trustee Cindy Marks. The cor-respondence was part of 130 pages of e-mails and memos released two weeks ago to The Bee in response to a public records request.

Flores accuses Bailey of "unprofessional" behavior and "questionable judgment" for having e-mailed in- ternal information to the teachers union. Bailey maintains that selected e-mails are being released to show only one side, and that most of her e-mail comments are being misinterpreted.

A decision on Bailey's status is unlikely to come at Monday's Board of Trustees meeting, but at a special meeting. During a time of increasing financial stress on the district, one legal expert says trustees should be looking for the cheapest route.

"The question for the taxpayers and the teachers is: How much time gets taken away from accomplishing the district's mission statement?" said Jessica Christensen, an employment attorney based in Alameda and an editor of the California Employer Advisor.

While Bailey's actions are deemed by many as unprofessional and insubordinate, trustees will have to decide whether what she did undermined Flores' relationship with trustees and district employees. Bailey counters that Flores had eroded her authority.

Such tension is not rare. "It's the most common scenario for employment disputes," Christensen said, adding that conflicts usually flare about 18 months to two years after a new executive takes over.

Bailey's e-mails started soon after Flores was hired two years ago. Flores succeeded James Enochs, who had been superintendent for 21 years. The average tenure of a superintendent in California is less than five years.

Expert: Carrot better than stick

When a new leader is hired and follows a longtime superintendent, he or she has to find a way to "impose change and assert their leadership without marginalizing the authority of longtime employees," Christensen said. "The carrot is much better than the stick."

After reviewing the Bailey case, Christensen said her biggest concern would be Bailey's e-mails to Modesto Teachers Association officials in which Bailey was giving the union information it could use against the district.

In an e-mail Jan. 13, an MTA official asked Bailey if she had anything to add to a regularly scheduled meeting agenda between union leaders and district officials. Bailey responded, directing the union to ask about the cost of a consultant for strategic plan support.

"That's a $40,000 contract and I have yet to figure out for what," Bailey wrote.

"Sharing strategies, whether general or specific, on either side is a pretty serious offense," Christensen said.

Bailey's contract states she can be terminated for a "material breach" of the agreement.

"Generally speaking, breach goes to the core of intent of the contract," Christensen said. "Poor performance is not a ma- terial breach in and of itself. It's got to be more than poor performance -- it's got to be grave misconduct."

Bailey's attorney, Frank Zumwalt, said none of the information contained in the released e-mails or memos has anything to do with her job performance. She was competently performing her duties, he said.

Bailey said she was worried about the financial solvency of the district and was taking those concerns to Flores, trustees and other employees.

Christensen noted that part of Bailey's "job is to provide support for the superintendent and administration generally."

"Disagreeing on policy manners is not insubordination, but undermining (Flores') ability to work with staff is," Christensen said, and Bailey might be judged to have done that with the MTA, Nan and Marks.

"The question is, did her jabs really undermine (Flores)?" Christensen said. "Was Bailey doing her job and facilitating the negotiations process (with MTA)?"

Regarding Bailey's e-mail to Marks in which she accuses Flores of using his ethnicity to avoid accountability for himself and other minorities, Christensen said Bailey walked on thin ice.

"It's thorny territory. It shows her own feelings, own biases that could create racial tension. It's a careless comment that can be touchy," Christensen said.

In the end, trustees have to consider the cost benefit of terminating Bailey or buying out her contract. It might be cheaper to buy out Bailey's contract than continue spending money on attorney's fees and "the public airing of everyone's laundry," Christensen said. "What's more costly -- the buyout or a hearing and public struggle?"

Christensen said the case could be one of "whistle-blower versus personal friction" between Bailey and Flores, but said if Bailey had any information about wrongdoing, it probably would have come out by now.

In response to Bailey's claims that she had no one to turn to about her concerns, Board President Steve Grenbeaux said trustees and staff are researching a policy that gives whistle-blowers an avenue to have their voices heard without retaliation.

If a settlement is reached with Bailey, it wouldn't be the first time the district bought out an administrator's contract. In 1986, it cost Modesto City Schools more than $250,000 to buy out Superintendent Robert Otto's contract.

Bee staff writer Michelle Hatfield can be reached at mhatfield@modbee.com or 578-2339.

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