Shining a Light in Dark Corners

Tuesday, March 14, 2006 | This week is Sunshine Week – a time for Americans to reflect upon the importance of a free and open government and access to public information, principles upon which this country was founded.

In honor of Sunshine Week (http://www.sunshineweek.org/), San Diego Unified School District’s Board of Education has an opportunity today to show the community that it believes in the public’s right to know.

Board members will take a first look in closed session this afternoon at a report on the San Diego City Schools Superintendent’s Fund for School Innovation, an independent discretionary fund run by former SDUSD superintendent Alan Bersin during his seven-year tenure from 1998 to 2005. After reviewing the findings, the board will decide whether to make the report public.

The item will be reviewed in closed session rather than open session and the audit may not be revealed to the public, because “it might be a subject of litigation,” said SDUSD trustee John de Beck, who offers up a justification for secrecy that potentially removes every item from open session, given the proclivity of citizens to sue over just about anything.

“I believe strongly that it won’t be released, especially if the findings are severe,” de Beck said. “If it’s of no consequence, then we might release it.”

De Beck said no board member will have seen the audit before Tuesday’s meeting, although he and fellow trustee Mitz Lee – both Bersin critics – reviewed a preliminary internal report in November. Based on their findings, de Beck said he and Lee brought the matter to the full board, which voted in December to hire an outside firm to investigate further.

The final report was prepared by Anthony Murray, a partner at Loeb & Loeb, a Los Angeles-based law firm. Murray is being paid $450 per hour, according to the $75,000 contract between the two parties, and is concentrating solely on the Bersin audit.

Preliminary findings, leaked last week in selective bits and pieces, have Bersin opponents smelling blood, even though less than 10 percent – about $44,000 – of the discretionary fund spent over the seven years is being questioned.

“They are spending $75,000 to investigate non-public funds,” Bersin said. “Not a dime of public money was spent. This is the use of public funds to conduct a political vendetta.”

“Ethics don’t have a price,” de Beck countered. “Ethics are what we’re talking about.”

But Bersin questioned the ethics of authorizing public education money to review the expenditures of a private fund he says was completely legal and was used to advance the school district’s mission.

The Fund

The fund contained $574,000 in money obtained through private donations from philanthropists, foundations, businesses and corporations – including Wells Fargo, William Lynch and John Walton, said Bob Kelly, president of the nonprofit San Diego Foundation which administered the fund.

“This is a common type of program in other communities,” said Kelly, citing Seattle as the most recognized, with a superintendent’s fund he claimed was worth $2 million at one time.

“Maybe it’s done [elsewhere], but I’ll bet it’s audited better than this one,” said de Beck, agreeing with those who say such a fund can be too easily abused.

Bersin justified the fund, saying a degree of trust should exist between the school board and its superintendent. Expenses charged to the fund would be consistent with the school district’s education objectives, he said.

Kelly said the foundation sent money to the school district, which then paid Bersin. The fund allowed Bersin to bypass approval by the school board for education-related expenses he judged appropriate.

As an example, Kelly said Bersin wanted to reward one school for improved test scores and used $150 from his fund for an ice cream party. “This would not be in his normal budget,” Kelly said.

But not all expenses were for ice cream parties. Some, like dinner parties and travel expenses, have raised eyebrows.

Bersin confirmed that some of the money was spent on entertainment, including alcohol, but added that some was also spent on expenses that would otherwise have been charged to the school district.

De Beck insisted that the school board, not its superintendent, needs to control all spending on district-related activities and that the fund’s existence was improper. “City Schools would never have authorized expenditures for alcohol,” he said.

According to de Beck, new superintendent Carl Cohn is opposed to the use of such a fund and indicated his support for the contract with Loeb & Loeb to investigate the matter. “If he was against the audit, we wouldn’t have done it,” de Beck said. Cohn could not be reached for comment.

The problem as it pertains to Sunshine Week is that the public has not officially seen the audit; although the district’s preliminary findings are being widely discussed. De Beck had no reservations talking about the early report, saying, “It doesn’t look good to me.”

Wary of misinterpretation, Bersin objected to the leaked release of anecdotal line items from the report. In a March 3 letter to Murray, Bersin asked for a commitment from the school board to release the report so the public “can draw its own conclusions.”

De Beck said that the audit probably won’t be released, because “we may push it forward to a higher level like the state Attorney General or the IRS.”

But Bersin said the district could still choose to make the audit public even if the board referred the issue to other agencies for action.

SDUSD general counsel Ted Buckley said the report would be released but wouldn’t say when. “For the district, documents may not be disclosable for a variety of reasons, such as if it is a draft, if it falls under attorney-client privilege or if it’s a personnel matter,” Buckley wrote in an email. “Once all those hurdles have been cleared, the report will be released.”

District spokespersons now say the report being reviewed today by the board is missing key facts and is, in fact, not the final audit. When it’s finalized, the report will be disclosed, they said, to both Bersin and the public.

Villain or Savior

Regardless of whether you consider Bersin villain or savior, reasonable minds can agree that any public official’s call for less secrecy and more public scrutiny is worthy. Bersin appears ready to stand on the facts, minus the political spin, if the board will release the data.

Bersin suspects that the presentation of the report to the school board was timed to coincide with his upcoming confirmation hearings for his appointment to the State Board of Education, now scheduled for April 19.

The powerful State Board of Education has 11 members appointed by the governor and is the governing and policy-making body of the California Department of Education. Bersin also serves as the state’s education secretary, a post that requires no confirmation.

Bersin called the March 14 deadline to present the audit to the school board “an artificial and politically motivated one” and requested that the audit be made public before his confirmation hearings to thwart “those with personal and political agendas” who would misrepresent the facts.

“The timing is a coincidence, but we couldn’t have engineered it any better,” de Beck said.

One fierce Bersin opponent, Voters for Truth in Education president Mike MacCarthy, called the emerging controversy “a gift from God” in an email to supporters, and offered several talking points in a letter-writing campaign to oppose Bersin’s SBE confirmation.

Whether the report is a blessing or a curse – an expensive witch hunt for those seeking revenge or a legitimate exercise to ensure proper accounting – remains to be seen. To judge for ourselves whether concerns are valid, let the sun shine.

The school board needs to release its audit in its simplest form – free from interpretation even by the Loeb & Loeb attorney who, given the challenging tone of his correspondence with Bersin, reveals a clear bias and may lack objectivity.

Meanwhile, this issue is so far removed from the mission of improving student achievement in the classroom that adults on both sides of the debate risk losing sight of education’s primary purpose.

Marsha Sutton writes about education and children’s issues. She can be reached at