EUGENE SCHOOL DISTRICT

Secret school emails released

To avoid publicly evaluating and possibly firing Sheldon Berman, the Eugene School Board let the superintendent author his own exit

The Register-Guard

APRIL 29, 2015

"Eugene School Board members allowed Superintendent Sheldon Berman to come up with his own exit plan to avoid the release of a negative performance review, which one board member said could result in his firing, newly obtained records show.

Board members also said in emails last year that if they couldn’t successfully negotiate a departure agreement with Berman, they planned to make his evaluation public and hire an investigator to look into unspecified actions by Berman.

Further, emails between board members show that some members went to great lengths to avoid meeting publicly or even in a closed-door session, in potential violation of state public meetings law. Other emails show that one board member — Beth Gerot — said she would destroy some public records related to Berman’s evaluation. It is a violation of state law for a public official to destroy public records.

The new information is contained in records that the law firm representing the Eugene School District inadvertently sent to The Register-Guard. The district contends the records should be kept secret, but the newspaper’s general counsel, Wendy Baker, said the district has “no legitimate basis” for keeping the records secret, and that the newspaper is publishing them because “elected officials should be held accountable to their constituents and their community.”

The school district sued The Register-Guard in Lane County Circuit Court earlier this year to avoid disclosing 12 pages of records that the Lane County District Attorney’s Office ruled it must release. The district hired the Eugene law firm of Harrang Long Gary Rudnick P.C. to represent it in its lawsuit.

In the course of legal proceedings, the law firm last week sent the newspaper hundreds of unredacted emails regarding Berman’s job performance that The Register-Guard requested last year. The law firm also sent an unredacted copy of Berman’s self-evaluation, in which he gave himself a glowing review.

Berman announced last June that he was leaving the district after the current school year, citing “family circumstances.” Berman began his job as Eugene superintendent in July 2011. His three-year “roll over” contract was extended in July 2013 and would have expired in 2016; thus, he elected to leave one year early.

Berman’s announcement in June followed several months in which the board delayed its evaluation of his job performance. Board members never discussed Berman’s contract or job performance publicly.

The emails obtained by The Register-Guard show that board members delayed public evaluation of Berman while they negotiated, sometime between April 2014 and late June 2014, an exit plan that would allow Berman to retain his job for an additional year to avoid damaging the district’s and Berman’s reputations.

The negotiations followed results from an employee survey — conducted by independent consultant Alison Lewis — that found serious concerns with Berman’s job performance. The emails do not shed much light on the nature of those concerns, but do indicate that concerns about Berman led to the resignation of at least two high-level district administrators. The consultant — who interviewed about 20 district employees — found that Berman struggled to manage employees, and some emails suggest employees feared repercussions if they spoke out.

“I would suggest that it will be an independent investigation that will go beyond what we have heard from Alison (Lewis) because of the serious nature and fear of retaliation,” Gerot wrote on April 17, 2014, using her personal email account, in an email to Mary Walston’s personal email account. Walston was the board’s chairwoman at the time.

“I would also suggest that we put the onus of an exit strategy on Shelley (Berman) to deliver by next Tuesday that doesn’t damage the district or him — I don’t believe we can wait until April 30 (the deadline the board gave itself to complete its evaluations of Berman). The ball needs to be tossed back in his court,” Gerot said.

“I would also suggest, if we are not able to successfully establish a negotiated exit strategy, that we will complete the evaluation and investigation, which will become a public record, a part of his personnel file, and negative. This could potentially mean termination for just cause.”

Gerot and Walston did not immediately return phone or email requests for comment on Tuesday. Berman also did not return a phone call or email message seeking comment.

In its lawsuit against The Register-Guard, the district said disclosure of the emails would “inhibit” board members and Berman “from freely and frankly contributing to the free flow of information and ideas that is an indispensable ingredient in forging an effective multi-person policy-making body.”

The county district attorney’s office reviewed all the records and ruled that some of the records whited-out by the district could be kept confidential, including Berman’s self-review. But the 12 pages of emails should be disclosed, the district attorney ruled.

Steps to avoid meeting

Walston frequently used her private email account to communicate with other board members as well as with an attorney with the Luvaas Cobb law firm, which was hired by the district. Walston also called individual board members and sent them text messages to discuss Berman, thus avoiding a public or closed-door meeting.

Each board member was expected to complete an evaluation of Berman’s performance, but it’s unclear whether any members — aside from Jim Torrey — actually filled out the evaluation. Torrey also was the only board member who said in an email that he would publicly release his evaluation of Berman.

Torrey — who is the board’s current chairman — also said in an email that all board members’ evaluations are public documents.

Torrey said late Tuesday night that he would not comment further until first conferring with the school district’s attorney.

The Luvaas Cobb attorney — Erin Fennerty — outlined in a memo to board member Craig Smith on April 4, 2014, the ways that the board could terminate Berman under his contract. Board members could fire Berman if there was a mutual agreement, a discharge for cause, a disability, or unanimous consensus among board members, according to his contract.

After outlining the criteria the board would have to meet for each possible route of termination, Fennerty recommended that the board tell Berman that the board “does not select the option of unilateral termination; the board does not wish to damage (Berman’s) reputation; the board would make a settlement offer” that he resign “June 30, 2014, for any reason he chooses to give” and that there would be no performance evaluation.

Fennerty also recommended that the board chair “sign a letter of reference that stresses the positive performance characteristics of Mr. Berman, which he (Berman) shall prepare, subject to revisions made by the District Board at its discretion.”

It’s unclear in the emails how the board reached agreement with Berman for him to work through the end of this current school year. The board never met in either a closed-door or public meeting to discuss the negotiations.

Favorable self-evaluations

Berman completed a 13-page self-evaluation, in addition to a survey evaluation — both of which he requested be kept confidential. In both evaluations, he gave himself positive reviews and cited budget cuts as the root of most of the district’s fiscal and morale problems.

He also addressed some concerns that board members expressed to him, which he described as “very serious concerns and ones that both trouble and puzzle me.”

“First, there is a growing sense that I do not apply the input I am receiving to decisions and am not inclusive of others’ opinions, and that I do not seem willing to let go of the direction I wanted to pursue, thereby creating an environment in which people do not feel part of the team,” Berman wrote.

Another major concern was that employees felt “overwhelmed and unsupported” when he implemented new programs, Berman said.

Berman defended himself by listing pages worth of changes that he described as his “accomplishments” in the district, ranging from his role in the sale of Civic Stadium to his recommendation that the district create a common high school class schedule.

In the evaluation, Berman compared his experience with that of the Obama administration in its response to the Great Recession.

“I would put our situation in the same category, although because of our budget constraints our relief effort is much closer to an austerity program than relief,” Berman wrote. “We are still in recession and the austerity and stress that go along with it don’t feel good to anyone.”

“A bit in denial”

In a text message to Walston on March 21 2014, board member Jennifer Geller said that “Shelley is a bit in denial.”

Walston sent Geller a text message on March 7, 2014, that read: “Jennifer, I know (there) was talk of an (executive, closed-door) session to discuss Shelley’s performance as a last item on Monday. I talked with (then-district chief of staff) Barb (Bellamy) and Craig (Smith) yesterday and we cannot see how we could have — at this point in time — the discussion we seem to want — under (Oregon Revised Statutes) exemption. Craig talked to Shelley — at Shelley’s request after last week’s review. Craig suggested Shelley call individual board members for feedback. The hope is that Shelley will listen and be able to count to 4,” referring to a board majority that could effectively end his employment.

According to the emails, Walston said she would sequentially telephone each individual board member to update them on the process of evaluating Berman. It is a violation of Oregon public meetings law for public officials to hold sequential private one-on-one discussions with a board majority in order to deliberate toward a decision, an Oregon Circuit Court judge ruled in 2011.

Gerot wrote to all board members on March 9, 2014, that the district’s consultant, Lewis, would meet with her, in addition to board members Alicia Hays and Geller, to “communicate verbally and without attribution” what the consultant learned through her interviews with district employees.

“She will then write a written summary, again without attribution, that will go to the entire board. Once she has written this, she will shred all documents related to the interviews,” Gerot wrote.

Gerot also described in the email the evaluation process for Berman.

After board members were to meet privately in May, Gerot said, “I will shred any written documents that I have.”

State law requires school districts to maintain personnel records — which include performance evaluations — for three years.

Board member Smith — an attorney with the Hershner Hunter law firm and who is the school board’s longest-serving member at 20 years — wrote to the district’s lawyer that he was using his private email account because he feared Berman had access to all the district’s emails.

“I may be too paranoid, but I have some concern that corresponding by email through (District) 4J may allow Shelley to access the communications. I have no reason to believe he would do so, but assume he has access to all emails on the system. Accordingly, I am using my personal email account here.”

Email josephine.woolington@registerguard.com .