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INVESTIGATION REGARDING PRELIMINARY OPR REPORT NO. 11335
Paul Coggins Kip Mendrygal Amanda Burcham LOCKE LORD LLP 2200 Ross Ave., Ste. 2200 Dallas, TX 75201
Nicole Taylor THE TAYLOR LAW FIRM, P.C. 610 Uptown Blvd., Ste. 2000 Cedar Hill, TX 75104
Confidential and Privileged
SCOPE OF INVESTIGATION The Dallas Independent School District (“Dallas ISD” or the “District”) engaged Locke Lord LLP (the “Firm”) to investigate: (1) the allegations and subject matter set forth in the preliminary OPR report for case number 113351; (2) the District’s employment relationship with Rebecca Rodriguez, focusing on the validity of any complaints about Superintendent Miles and/or the District; and (3) whether any District policies or regulations and/or the terms of Superintendent Miles’ employment contract were violated in connection with facts we discovered during our investigation. Our investigation involved tasks including, but not limited to: (1) performing a comprehensive review of the preliminary OPR report, along with the exhibits and supporting documentation thereto; (2) conducting interviews of thirty persons with knowledge of relevant facts (both District employees and others); (3) collecting and analyzing over 411,000 emails from twenty-three District employees; (4) analyzing applicable Board policies and regulations, ethical standards, and state law; and (5) analyzing Superintendent Miles’ employment contract with the District. Our investigative team consisted of three lawyers from Locke Lord LLP (Paul Coggins, Kip Mendrygal, and Amanda Burcham) and Nicole Taylor of The Taylor Law Firm, P.C.
See Report of Investigation, Case No. 11335, by the Dallas ISD Office of Professional Responsibility, attached hereto as Tab 12.
EXECUTIVE SUMMARY The preliminary OPR report involved three overlapping subject matters. First, the report contained facts and allegations regarding the possible violation and/or circumvention of Dallas ISD procurement policies in connection with an RFP for Parent Engagement services (#TH204031). Second, there were allegations that Superintendent Miles bullied Rebecca Rodriguez and treated her unprofessionally. Third, there was evidence of the possible obstruction of the OPR investigation by Superintendent Miles. We found no violations of any laws, civil or criminal. However, we determined that Superintendent Miles violated Board policy DH (Local) and his employment contract on two occasions by contacting witnesses and discussing facts relevant to the pending OPR investigation. This outside investigation would never have taken place if Superintendent Miles had followed the advice given him by at least three District officials to allow the underlying OPR investigation to go forward. While the OPR investigation was ongoing, Don Smith (Chief Compliance Officer) told Superintendent Miles that it did not appear the investigation would substantiate the allegations and urged him to allow OPR to continue its investigation. Likewise, both General Counsel Jack Elrod and Assistant General Counsel Lisa Ray advised Superintendent Miles to allow OPR to complete its investigation. Despite such sound advices, Superintendent Miles decided to suspend the OPR investigation and order the Legal Department to take records gathered by OPR during its aborted investigation. Even though no rule or regulation expressly permits or prohibits Superintendent Miles from taking such action, for a target of an investigation to suspend the investigation raises
troubling issues, and any damages to Superintendent Miles’ standing with the Board, the District or the community at large were self-inflicted. Our specific findings regarding each of the subjects raised by the preliminary OPR report, as well as two additional subjects identified during the course of our investigation, are below.
Issue No. 1: Alleged Circumvention of District Policies Regarding RFP #TH-204031 We determined that the documents surrounding RFP #TH-204031, originally an RFP for parent engagement and education services, are troubling on their face and could lead a reasonable person to believe that a particular vendor, The Concilio, had been slated to receive a contract prior to the issuance of the RFP. The documents show: ▪ A relationship spanning several years between Dallas ISD and a parent engagement vendor named The Concilio. As part of this relationship, The Concilio offered to raise part of the funds needed to pay for the services it provided to Dallas ISD. ▪ Multiple meetings between The Concilio and high-ranking District employees where details of the parent engagement portion of the District’s Imagine 2020 project were discussed, such as which schools would receive the services and what services The Concilio could provide. These meetings took place prior to the issuance of an RFP to select the vendor(s) who would provide these services. ▪ Conversations between high-ranking District employees and The Concilio resulted in The Concilio making a cost proposal to Dallas ISD for parent engagement services that would become included in the parent engagement budget for the Imagine 2020 project. The cost proposal suggested a 50/50 funding split between the District and The Concilio. The cost proposal was made prior to the issuance of an RFP to select the vendor(s) who would provide these services. ▪ Emails indicating that (1) the District (and Superintendent Miles in particular) wanted to move forward with The Concilio to perform the parent engagement activities in connection with the Imagine 2020 project and (2) The Concilio believed that it had been selected as the vendor to perform these services. These emails predated the issuance of an RFP to select the vendor(s) who would provide these services. ▪ An invitation to The Concilio (as the sole parent engagement vendor) to participate in a March 2013 RFP for contracted services.
▪ Issuance of a new RFP in May 2013 because The Concilio missed the deadline to apply for the March 2013 RFP. It appears that the email inviting The Concilio to apply for the earlier RFP was misdirected due to a typo in the email address. ▪ Involvement by high-ranking District employees, including Superintendent Miles, in an eleventh-hour decision to pull the RFP from the June 13 board briefing agenda after it became clear that a vendor other than The Concilio had been designated as the sole vendor for the parent engagement services contract. Promising a contract to a vendor prior to issuing an RFP would not only undermine the public’s faith in the District’s procurement processes, essentially rendering the RFP process a farce, but would also violate Board policy. However, for the reasons set forth below, we did not identify any violations of Board policy committed by any District employee in connection with this RFP. Our conclusions regarding the allegations regarding Issue No. 1 are as follows:
Conclusion No. 1: We found insufficient evidence to conclude that there was fraud or financial impropriety in connection with RFP #TH-204031. If the District promised The Concilio a contract prior to the issuance of an RFP, it would be a violation of Board policy CAA (Local), which prohibits fraud or financial impropriety in connection with the procurement process. The language, timing, and context of the documents surrounding RFP #TH-204031 raise concerns, as do the timing and frequency of meetings between high-ranking District employees and The Concilio leading up to the issuance of the RFP. However, we found insufficient evidence to conclude that there was any fraud or financial impropriety in connection with the parent engagement RFP in light of: (1) the interviewees’ unanimous and unequivocal denials that a contract had been promised to The Concilio at any time; (2) the absence of any evidence that any District employee had a financial interest in The Concilio and/or the outcome of the RFP;
(3) the interviewees’ plausible explanations for many of the troubling documents; (4) our determination that there was no impropriety in connection with the drafting, issuance, or scoring of the vendors’ responses to the RFP; (5) the fundamental defects in the documents sent to Board Services in connection with the RFP, along with the lack of any supporting documentation on which the Board could rely to make an informed decision; and (6) the broad powers of Superintendent Miles to manage the procurement process, including the power to pull board agenda items for any proper purpose.
Conclusion No. 2: The Concilio violated Board policy CHE (Local) by meeting with an individual Dallas ISD Board member. On February 4, 2013, three representatives from The Concilio met with Trustee Mike Morath. During the meeting, the parties discussed, inter alia, how The Concilio could better navigate political issues with the Board. Although District officials arranged the meeting, Board policy CHE (Local) states that it is a violation for a vendor to discuss business matters with an individual Board member.
Conclusion No. 3: We found insufficient evidence to conclude that Superintendent Miles violated Board policy by pulling the parent engagement RFP from the June 13, 2013 Board briefing agenda. Despite the fact that the RFP was pulled from the Board briefing agenda shortly after Superintendent Miles received a call from a District employee that the RFP was being awarded to a vendor other than The Concilio, the board document had significant errors and lacked any supporting documents on which the Board could reasonably decide how to vote. Moreover, Board policy gives the Superintendent broad powers and discretion regarding procurement matters, including the power to pull an item from a Board agenda for any proper reason.
If Superintendent Miles pulled the RFP and included additional vendors based upon The Concilio’s (1) actual or perceived political influence and/or (2) The Concilio’s promise to assist the District with fundraising, that would violate Board policy CH (Legal). In light of the flaws with the board document, as well as other relevant circumstances, we found insufficient evidence to find a violation.
Issue No. 2: Allegations of Bullying/Unprofessional Conduct and Employee Retaliation by Superintendent Miles Our conclusions regarding the allegations of bullying/unprofessional conduct and retaliation by Superintendent Miles are as follows:
Conclusion No. 1: We determined that the issue of bullying/unprofessional conduct under DH (Local) was not substantiated. Although the preliminary OPR report raises the possibility that Rodriguez had been bullied, as defined and prohibited by Board policy DH (Local), Rodriguez informed us on more than one occasion that she would not characterize the relevant interactions with Superintendent Miles as “bullying.” The other witnesses to these conversations similarly declined to
characterize the interactions as bullying or unprofessional. Thus, we concluded this issue was not substantiated.
Conclusion No. 2: We found insufficient evidence to conclude that Superintendent Miles retaliated against Rodriguez for reporting him to OPR. Board policy DH (Local) prohibits “retaliation against an employee … who, in good faith, makes a report, serves as a witness, or otherwise participates in an investigation.” Although the timing and circumstances of Rodriguez’s departure from Dallas ISD raise the issue of whether Superintendent Miles decided to terminate her because of her allegations about him to
OPR, we found no direct evidence of retaliation. To the contrary, some evidence suggests that Superintendent Miles made the initial decision to terminate Rodriguez prior to learning of her allegations to OPR, and that his decision to terminate her was based in part upon his issues with her actions during the June 13 board briefing.
Issue No. 3: Alleged Obstruction of an OPR Investigation by Superintendent Miles The preliminary OPR report lays out facts suggesting that Superintendent Miles obstructed an OPR investigation by contacting a witness about facts relevant to the investigation while the investigation was pending. Our conclusions regarding this matter are as follows:
Conclusion No. 1: Superintendent Miles violated Board policy DH (Local) and his employment contract on at least two occasions by contacting witnesses during an OPR investigation. On June 24, 2013, Superintendent Miles contacted Byron Sanders2, a witness to the issues being investigated by OPR, and (1) alerted him to the pending OPR investigation and (2) discussed facts relevant to the pending investigation. Superintendent Miles was aware of the pending OPR investigation at the time of the contact, made the contact shortly before the witness was contacted by OPR for an interview, and purported to refresh his recollection regarding their June 12 phone call about the parent engagement RFP. This is a violation of Board policy DH (Local), which prohibits conversations between witnesses about the facts of a pending OPR investigation. In addition, on June 22, 2013, Superintendent Miles sent his proposed written rebuttal to Rodriguez’s allegations to Justin Coppedge (Special Assistant to the Superintendent) and asked
Sanders is the Executive Director of the Dallas Education Foundation (“DEF”). The DEF is an entity that raises money from outside sources in order to fund various projects at the District. From August 2012 to July 2013, Sanders was a District employee. In July 2013, he became an employee of DEF. Although he still maintains an office at the District and performs the same fundraising role as before, he is no longer a District employee.
him to review it. The email was sent from Superintendent Miles’ personal email address to Coppedge’s personal email address. Superintendent Miles drafted the written statement, which set forth his position regarding the facts relevant to the OPR investigation. At the time Superintendent Miles sent the email to Coppedge, both were aware of the pending OPR investigation, and Superintendent Miles was aware that Coppedge was a witness to at least one interaction between Rodriguez and Superintendent Miles. Superintendent Miles’ June 22 email constitutes a second violation of DH (Local). Under the terms of his employment contract, violations of Board policy constitute “good cause” for dismissal.
Conclusion No. 2: Superintendent Miles did not violate Board Policy DH (Local) by failing to submit to an interview with OPR. During its investigation, OPR asked Superintendent Miles to participate in an interview about the allegations made by Rodriguez. Through General Counsel Jack Elrod, Superintendent Miles declined to be interviewed and, instead, subsequently submitted an unsworn written rebuttal to the General Counsel’s office. Board policy DH (Local) requires all District employees to “provide all relevant and factual information about matters inquired.” In the event an employee refuses to do so, Board policy directs the employee’s supervisor to order the employee to cooperate. If the employee still does not cooperate, disciplinary action can be taken. Although Superintendent Miles declined OPR’s interview request, his supervisor did not direct him to participate, and the Trustees (Superintendent Miles’ de facto supervisors) became aware of the decision to suspend the investigation at or near the time it was made. Moreover, Superintendent Miles submitted to interviews with us during the course of our investigation and
provided records (including personal emails and cell phone records) that we requested. Thus, we do not believe that Board policy DH (Local) was violated in this case.
Conclusion No. 3: Superintendent Miles did not violate Board policy by suspending the OPR investigation into Rodriguez’s allegations against him. On June 26, 2013, Superintendent Miles ordered OPR to cease the investigation into Rodriguez’s allegations and to turn a copy of its investigative file over to the General Counsel’s office. However, Superintendent Miles gave this directive after Board President Cowan sent Superintendent Miles, Jack Elrod and Don Smith an email stating that the OPR investigation would be suspended until attorneys could assess and resolve the potential conflict in having OPR (a direct report to Superintendent Miles) investigate allegations about Superintendent Miles. Two days later, the investigative files were returned in their entirety to OPR, and the investigation was permitted to continue. We could find no precedent for a Superintendent ordering the suspension of an OPR investigation, nor could we find any Board policy permitting or prohibiting same. However, because Board President Cowan was involved in, and implicitly approved, the decision to suspend the investigation, at least temporarily, we concluded that the order did not violate Board policy.
Issue No. 4: Other Potential Issues Raised During Our Investigation Conclusion No. 1: Superintendent Miles may have violated the terms of his employment contract by encouraging a District employee to disparage Board members. During our investigation, we concluded that Superintendent Miles encouraged and assisted Kevin Smelker, a former Cabinet member, in drafting a resignation letter that disparaged
certain members of the Board. Smelker’s resignation letter was subsequently leaked to the press and resulted in negative publicity for the Board and positive publicity for Superintendent Miles. If the Board concludes that Superintendent Miles participated in a plan to take advantage of Smelker’s resignation in order to generate negative publicity for the Board and positive publicity for himself, such conduct may violate the provision of Superintendent Miles’ employment contract that requires him to take steps to “maintain an effective working relationship with the Board.”
Conclusion No. 2: We found insufficient evidence to conclude that Superintendent Miles prohibited Don Smith from discussing District operations with Dallas ISD Trustees. During our investigation, Don Smith, the Head of OPR, alleged that Superintendent Miles gave him multiple directives not to have any contact about District operations with Board members. Board policy DGBA (Local) prohibits such a directive. However, Superintendent Miles denies giving Smith this directive. Due to the absence of third-party witnesses to the directive or other evidence corroborating the position of one party over the other, we do not find a Board policy violation.
FACTUAL FINDINGS AND ANALYSIS OF POSSIBLE VIOLATIONS I. Parent Engagement Services RFP A. Summary of Background Facts
The crux of the allegations regarding the May 2013 RFP #TH-204031 for parent engagement services is that one or more Dallas ISD employees may have violated procurement rules, Board policy, or ethical guidelines by steering a contract to a particular vendor, The
Concilio. As an introduction, the following dates and events are relevant to our analysis of this issue. ▪ September 2009 through September 2012: The Concilio performed parent education services for Dallas ISD under a three-year contract that expired on September 24, 2012. ▪ August 2012: The Concilio was awarded a separate contract with Dallas ISD to provide parent engagement services in an effort to increase first-day attendance and reduce truancy. District emails indicate that this arrangement was predicated, at least in part, upon The Concilio’s agreement to raise funds to defray the cost of its services to the District. See Tab 18. ▪ October through December 2012: The Concilio negotiated the terms of a $33,000 contract to provide a 9-week PASE Program (parent education classes) in several Dallas ISD schools. This new contract was slated to go to the Board for approval in December 2012; however, Superintendent Miles delayed the request until 2013. To date, the contract has not been presented to the Board. See Tabs 23, 24, 26. ▪ October 24, 2012: The Concilio’s President and CEO, Florencia Fortner, met with Byron Sanders to discuss outreach to African American families. Trustee Mike Morath was invited to attend this meeting, but he was unavailable. See Tab 22. ▪ December 6, 2012: Fortner again met with Sanders. See Tabs 25, 28. ▪ February 4, 2013: Fortner (accompanied by Concilio Board members Bill Borus and Adriana Hammer) met with Sanders and Trustee Morath to discuss how The Concilio could better serve African American families, thereby increasing its overall appeal to Dallas ISD Board members. See Tab 33. ▪ February 22, 2013: RFP #TH-203996 (Contracted Education Services) was issued. Many high-ranking District employees expected The Concilio to participate in (and be approved for) this RFP. ▪ February 27, 2013: ▪ Borus, Hammer and Fortner met with Superintendent Miles, Kerri Holt (Special Projects Officer, Teaching and Learning), Sanders, and Elsa Pennell (Director, School and Community Relations) to discuss the services The Concilio could provide the District in the future, with particular focus on the needs of the Imagine 2020 project. See Tabs 34, 35. ▪ Fortner emailed Pennell, Holt, and Superintendent Miles a copy of a cost proposal for The Concilio to perform parent education and engagement services for the Imagine 2020 project. See Tab 36.
▪ March 8, 2013: Rebecca Rodriguez was hired as Chief of Communications for Dallas ISD, and became part of Superintendent Miles’ Cabinet. ▪ March 20, 2013: The Concilio missed the deadline to apply for RFP #TH-203996 (the “March RFP”). Although the RFP was publicly advertised, The Concilio was the only parent engagement vendor personally invited to participate. However, the email to The Concilio contained a typo and was never received. See Tabs 46, 48. ▪ April 3, 2013: Fortner emailed Superintendent Miles, Holt, Sanders, and Pennell, among others, announcing a name change for their organization and stating that: “[W]e are ready to begin work at the Dallas ISD strategic feeder patterns and any other feeder patterns in need. We talked at our meeting about our proposal being presented to the Dallas ISD trustees at the May meeting. What else do you need from us to make this happen? We are extremely excited about serving Dallas ISD families and partnering with you to achieve the much needed 2020 goals in your plan.” See Tab 43. ▪ April 23, 2013: Based upon conversations with The Concilio, Sanders emailed several high-ranking District employees an explanation for why The Concilio missed the deadline to apply for RFP #TH-203996 through no fault of its own. See Tab 49. ▪ April 24, 2013: ▪ Jerome Oberlton (then the Chief of Staff) forwarded Sanders’ April 23 email to Rene Barajas (then the Chief Financial Officer) and Holt. See Tabs 49. ▪ Holt responded to Oberlton’s email by stating that: “I was in the original meeting with Elsa P, Mike M and The Concilio. Mike clearly indicated that he wanted to move forward with the plans discussed (first day of school initiative and some specific parent engagement activities district wide as well as a specific plan for Imagine 2020 Schools). The Concilio’s proposal was very compelling for 2 reasons: 1. The Concilio has delivered the services in the past with great results. 2. The Concilio offered to raise 1/2 of the funds required to deliver the services. Elsa was responsible for working with The Concilio through the process in order to implement these plans for next school year.” See Tab 51.
▪ April 25, 2013: ▪ Oberlton forwarded the April 23 email from Sanders to Kimi Tate (Director, Procurement Services). Tate responded that “Purchasing will be issuing an RFP for ‘Parental Initiatives’ to go to the August/September Board.” See Tab 50. ▪ Oberlton forwarded Tate’s April 25 response to Superintendent Miles, who responded “Jerome, I need to talk about this today.” See Tab 52. ▪ May 5, 2013: At the direction of the Communications Department, Purchasing prepared and issued an RFP to solicit bids in order for the District to purchase parent engagement services (RFP #TH-204031). See Tabs 13, 14. ▪ May 20, 2013: The Concilio and four other vendors responded to RFP # TH-204031. See Tab 16. ▪ May 22, 2013: The RFP review committee met and evaluated RFP #TH-204031. The Concilio was ranked third by the committee, but advanced to second place after M/WBE points were added. See Tab 17. ▪ May 24, 2013: MariCarmen Eroles (Coordinator, Marketing and Publications, Communications Services) attended an Imagine 2020 weekly meeting as a representative of the Communications Department. After that meeting, Eroles, Holt, and Sanders discussed a budget document that showed The Concilio as the “potential partner” that would provide parent education and engagement services for the Imagine 2020 program, and that listed a $172,515 budget for the project. Eroles informed Sanders and Holt that the review committee had already met to evaluate the proposals and The Concilio was not the top ranked vendor. Sanders and Holt asked several questions about the RFP, including when the results would be made public, but Eroles referred them to the Purchasing Department for answers. During the discussion about The Concilio and the status of the RFP, Holt referred to a budget document on the screen and told Eroles that “this is the direction that Mike wants to go.” 3 ▪ May 25, 2013: Holt relayed Eroles’ comments from May 24 to Superintendent Miles during an Imagine 2020 planning meeting. Holt reported that Superintendent Miles stopped the meeting to call Pennell, and overheard him instruct Pennell that he wanted multiple vendors approved through the May RFP process. Superintendent Miles does not recall the conversation with either Holt or Pennell, and Pennell does not recall this conversation with Superintendent Miles.
Eroles stated that she took Holt’s reference to “this” to mean The Concilio, and told Holt that a contract that large would have to go through the RFP process and that she assumed Superintendent Miles would never ask an employee to do something that would violate policy. See Eroles’ Affidavit behind Tab 91. Holt responded “Of course not.” During her interview, Holt told us that she meant “this” to refer to Superintendent Miles’ desire to have parent engagement be an important part of the Imagine 2020 project.
▪ June 3, 2013: ▪ Pennell and Rodriguez had a conversation about the parent engagement contract. Pennell said she suggested awarding the contract to multiple vendors, but that Rodriguez made the decision to award the contract to a single vendor (Practical Parent). Rodriguez stated that Pennell made the decision to award the contract to a single vendor, and that she was never aware of a plan or option to award the contract to multiple vendors. ▪ The board document awarding the parent engagement contract to one vendor, Practical Parent, was signed by Pennell, Rodriguez and Lee Simpson (Attorney, Legal Services). See Tab 62. ▪ June 10, 2013: ▪ Byron Sanders approached Theresa Ferguson (Senior Buyer, Procurement Services), and inquired about the parent services RFP. During the conversation, Ferguson pointed out issues with the wording of the board document and told Sanders that originally three organizations had been put forward by the review committee, but Pennell changed the board document to award the contract to one vendor. Ferguson told Sanders that a vendor from McKinney was the winner, but The Concilio was one of the three vendors originally slated to go to the Board before the document was changed. ▪ Sanders called Superintendent Miles and asked for a return call. ▪ June 12, 2013: Superintendent Miles called Sanders back. Sanders told Superintendent Miles that he believed Pennell had improperly changed the board document to recommend only one vendor, when earlier drafts had recommended multiple vendors to the Board.4 Sanders recalls informing Superintendent Miles that The Concilio was not the winner of the contract, but Superintendent Miles does not recall whether Sanders mentioned The Concilio. ▪ June 12, 2013: After speaking with Sanders, Superintendent Miles called Pennell to confirm what Sanders had told him. Pennell called Rodriguez, but was unable to reach her. ▪ June 13, 2013 : ▪ At approximately 6:30 a.m., Sanders met with Denoris Harris (Director, Board Services), asking him to remove the parent engagement services item from the Board briefing agenda. ▪ At approximately 9:30 a.m., Pennell and Rodriguez met. Pennell informed Rodriguez of the Superintendent’s decision to pull the agenda item.
Neither Sanders nor Superintendent Miles reviewed drafts of the board document prior to the June 12 conversation.
▪ At approximately 9:58 a.m., Rodriguez called OPR reporting her concerns regarding the RFP process, among other issues. ▪ At the Board briefing, Rodriguez deferred to Superintendent Miles and Pennell when the Board asked questions regarding the RFP agenda item. ▪ After the Board briefing, Rodriguez had a conversation with Harris about what had happened at the briefing. Harris told Rodriguez that there was pressure to use The Concilio last year and “I guess we have to use them again this year.”
Findings Regarding the Parent Engagement RFP 1. We did not identify any problems with the drafting, issuance, or scoring of RFP #TH-204031.
As an initial matter, we found no problems in the scope or content of the RFP document or in the manner it was publicly issued. RFP # TH-204031 was advertised on May 4 and May 11, 2013, in the Dallas Morning News (see Tab 14), in accordance with Board Policy requiring public notice “once a week for at least two weeks prior to the deadline for receiving bids, proposals, or responses to requests for qualifications.” See Tab 6 (CH (Legal) at 3 of 14). The document contained the same general terms, and followed the same general format, as most requests for purchase issued by Purchasing. See Tab 13. Further, we found nothing unusual or suspicious during the open RFP period. By the RFP’s May 20 deadline, five vendors had submitted written proposals in response: Practical Parent Education, The Concilio, Family Leadership Inc., PEP IT UP, and Relevant Knowledge, Inc. There was no evidence of any conversations between a vendor and anyone from the District about the RFP between May 4 and May 20, 2013. Likewise, the evaluation committee members did not report anything unusual occurring in their review process. On May 22, the review committee met to evaluate the five responding vendors’ proposals. All five committee members stated that they ranked the presentations based 17
upon the objective criteria given and the vendors’ written proposals, and that no one attempted to influence their judgment or manipulate their scoring in any way. The scores among committee members were consistent from reviewer to reviewer. Each reviewer ranked one vendor, Practical Parent Education, substantially above the other vendors. Using the combined scores, a vendor named Family Leadership ranked second, and The Concilio, third. The Concilio moved from third to second place after the M/WBE score was determined and the vendors were re-ranked. See Tab 17. Annie Holmes-Partee (Director, Minority Women Business Enterprises) scored this RFP. During her interview, she explained her objective evaluation and M/WBE scoring of each of the five vendors. We found no evidence of any wrongdoing in connection with the M/WBE scoring. Significantly, the review committee was not responsible for picking the winner(s) of the contract(s). The review committee was not informed how many vendors would be selected. Instead, they simply scored the proposals according to the objective criteria given. The number of vendors (i.e., single vs. multiple vendors) was to be determined by the end user of the services, the Communications Department. In sum, there is no evidence of wrongdoing in connection with the drafting, issuance, or scoring of RFP #TH-204031.
Certain conversations and documents would lead a reasonable person to believe that The Concilio had been slotted to receive a contract prior to the issuance of an RFP.
There were conversations and documents leading up to the May 2013 parent engagement RFP that would lead a reasonable person to conclude that The Concilio had been pre-selected to receive the contract prior to the issuance of the RFP. The facts and documents of most concern are discussed below. 18
There were meetings between District officials and The Concilio where details of the services were discussed.
Between July 2012 and February 2013, Superintendent Miles and other high-ranking District employees had several discussions with The Concilio regarding the scope and details of parent engagement services that would be part of the Imagine 2020 project5. In July 2012, shortly after Superintendent Miles joined Dallas ISD, The Concilio had an introductory meeting to inform him about the services they had performed, were performing, and could perform for the District. See Tabs 19, 20. Between October and December 2012, The Concilio negotiated with Pennell and Jennifer Sprague (then the Chief of Communications) the terms of a $33,000 contract for The Concilio to offer a 9-week PASE Program in certain Dallas ISD schools. See Tabs 23, 24. According to District emails reviewed and interviews conducted, no RFP was required for this contract because the amount was less than $50,000. The Purchasing and Communications Departments planned to present this new contract to the Board for its approval in December 2012. See Tab 27. However, Superintendent Miles asked Sprague to wait until January 2013. See Tab 26. Sprague resigned on December 21, and the contract has never been presented to the Board. At the same time The Concilio was negotiating the PASE contract with the Communications Department, it was also meeting with Sanders to discuss the services The Concilio could provide under a grant6 Sanders was helping Dallas ISD apply for, as well as whether The Concilio could provide first-day attendance services to certain Dallas ISD schools. Sanders met with Fortner about various projects on or about October 4, October 24, and
“Imagine 2020 project” and “Strategic Feeder Pattern” are used herein interchangeably to refer to Superintendent Miles’ vision for the District, including a parent engagement project that was being discussed with The Concilio beginning in February 2013. At that time, Sanders was helping Dallas ISD apply for a grant called “Race to the Top.” In December 2012, Dallas ISD learned that it did not win the grant.
December 6, 2012. See Tabs 22, 25, 28. Trustee Mike Morath7 was invited to the October 24 meeting, but he could not attend. See Tab 22. On February 27, 2013, Fortner, Borus, and Hammer met with Superintendent Miles at his office. Holt and Pennell were also present.8 Sanders participated by telephone. See Tabs 34, 35. The purpose of the meeting was to discuss the work The Concilio had provided in the past and the services it could provide in the future, with particular focus on Superintendent Miles’ Imagine 2020 campaign. District personnel mentioned the need for parent engagement services in connection with the Strategic Feeder Pattern schools, and the plan to offer an RFP to select a vendor to perform these services. According to the attendees, Superintendent Miles told The Concilio to apply for the upcoming RFP. In this connection, Holt would later write: I was in the original meeting with Elsa P, Mike M and The Concilio. Mike clearly indicated that he wanted to move forward with the plans discussed (first day of school initiative and some specific parent engagement activities district wide as well as a specific plan for Imagine 2020 Schools). See Tab 51. Holt also described The Concilio’s proposal as “very compelling” because “1. The Concilio has delivered the services in the past with great results. [and] 2. The Concilio offered to raise 1/2 of the funds required to deliver the services.” Finally, Holt stated that “Elsa was responsible for working with The Concilio through the process in order to implement these plans for next school year.” See Tab 51. Holt’s April 24 email strongly suggests that Dallas ISD planned on The Concilio performing the parent engagement services in connection with the Imagine 2020 project.
Trustee Morath’s relationship with The Concilio goes back to at least the Summer of 2012. See, e.g., Tab 18. The October 24 meeting was later rescheduled to February 4, 2013. See Tab 33. Participants at the meeting recalled that Superintendent Miles was present for only the first part of the meeting, somewhere between five and thirty minutes. This was likely due to a “heads up” from his assistant, Andrea Rodriguez, that The Concilio might be a District vendor.
On April 3, Fortner emailed Superintendent Miles, Holt, Sanders, Pennell, and others about a proposed name change for the organization. In the email, Fortner stated that: We are ready to begin work at the Dallas ISD strategic feeder patterns and any other feeder patterns in need. We talked at our meeting about our proposal being presented to the Dallas ISD trustees at the May meeting. What else do you need from us to make this happen? We are extremely excited about serving Dallas ISD families and partnering with you to achieve the much needed 2020 goals in your plan. See Tab 43. Similarly, in a separate email on April 16, Fortner asked “what we need to do to get our contract ready to be submitted to Dallas ISD trustee board in May.” See Tab 48. Based upon the above emails, The Concilio appears to have been under the impression that the District was moving ahead with its proposal to provide services for the Imagine 2020 project.
The Concilio presented a budget to Dallas ISD to perform the services, and the budget was included as the parent engagement budget for the Imagine 2020 project.
During the February 27 meeting, details of the parent engagement project, including the cost for The Concilio to perform the requested services, were discussed. Immediately after the meeting, Fortner emailed cost information to Superintendent Miles, Pennell, Sanders, and Holt. The Concilio proposed a cost of $16,430 per school, a number that represented 50% of the cost to provide the services, and agreed to raise funds to cover the other half. See Tab 36. The Concilio’s cost data presented on February 27 became the basis of the budget for parent engagement for Imagine 2020. Within a day of the February 27 meeting, a “Needs List” for Imagine 2020 was circulated, showing The Concilio as a “potential partner” and including The Concilio’s cost estimate of $345,030 ($16,430 per school, 21 schools) and a statement about
an agreement for The Concilio to fund half of the costs ($172,515), with the remainder to be paid for by the District. See Tab 37. The Concilio’s past work for the District – including the back-to-school initiative in 2012 – was likely awarded, in part, because of its promise to raise funds to defray the costs of services. For example, in June 2012, Trustee Morath indicated that The Concilio and another vendor would “fundraise based upon commitments they get from the District.” See Tab 18. Fortner confirmed during her interview that part of The Concilio’s business model with the District has been to pay for a percentage of its services through fundraising efforts. A review of the Imagine 2020 budget and planning documents would lead a reasonable person to conclude that The Concilio had been slotted to receive the contract for Imagine 2020 in advance of the RFP process. Several interviewees who reviewed the February 28 “Needs List” and other Imagine 2020 documents expressed concern about the documents because it appeared that The Concilio had been selected in advance of the RFP. See, e.g., Tabs 37, 39, 40, 42, 56, 57.
After The Concilio missed the deadline for a March 2013 RFP, highranking District officials arranged for a second RFP to be opened.
After The Concilio missed9 the deadline to apply for the March 2013 RFP for Contracted Educational Services10, a new RFP for parent engagement and education was opened to afford The Concilio an opportunity to submit its proposal to the District.
While it is undisputed that the invitation sent to The Concilio by Purchasing personnel had a typo in the email address and, thus, was never received, Pennell said that, during the February 27 meeting between District employees and The Concilio, Fortner acknowledged her awareness of the pending March RFP. Thus, it is not clear whether The Concilio was unaware of the pending RFP, or rather believed it did not need to apply. See, e.g., Tab 48 (including Fortner’s email of April 16, 2013). The March 2013 RFP was a general RFP for a variety of contracted educational services. The Concilio was apparently the only parent engagement vendor invited to apply.
An email written in April by Sanders to Oberlton described why The Concilio failed to participate in the March RFP and proposed a “solution” to prepare a new and separate RFP specifically related to parent engagement services. Sanders’ email was forwarded to Tate,11 Rodriguez, and Superintendent Miles, among others. See Tabs 49-52. Sanders stated in his email that “I think it will be very important to ensure that whatever RFP is released, the district needs to ensure that more than just The Concilio applies for it.” See Tab 49. Oberlton reportedly pressured the Purchasing Department to open an RFP for parent engagement services soon after Sanders sent his April 23 email. Tate stated that Oberlton visited the Department to ask whether an RFP was needed to hire The Concilio. Tate explained that an RFP would be required. Oberlton then inquired whether an RFP could be issued in time to make the June Board meeting. After the conversation with Oberlton, Tate met with Ferguson to determine whether there was enough time under the procurement rules to complete the RFP process in time to make the June 2013 Board meeting. Oberlton indicated that his request was urgent, so Tate and Ferguson stayed late at work to respond. Once it was determined a new RFP was possible, the two walked immediately across the street to Oberlton’s office to inform him. See also Tab 53-55 (emails updating Oberlton on the issuance of the parent services RFP).
High-ranking District officials inquired with Communications staff regarding the status of the RFP.
On Friday May 24, immediately after a weekly Imagine 2020 strategy meeting, Holt and Sanders approached Eroles about the status of the parent engagement prong of the Imagine 2020
Tate was promoted to Executive Director of Purchasing on July 1, 2013.
project.12 Eroles confirmed that an RFP had been issued and that the scoring was complete. Eroles, Sanders, and Holt discussed that The Concilio’s proposal had not received the highest score. Sanders asked when the results of the RFP would be made public, and noted that the winning vendor would have to receive advance notice in order to hire staff to handle the project. Eroles referred specific questions regarding the RFP to Purchasing personnel. Eroles asked Sanders and Holt about a document shown during the strategy meeting that identified The Concilio as the District’s potential partner for parent engagement services, and that listed a $172,515 budget, with the other half to be raised by The Concilio. Eroles voiced concerns about the document because it suggested The Concilio would be awarded the parent engagement services contract, even though the RFP was still open and there had been no action by the Board. After the May 24 meeting, Eroles reported her conversation with Sanders and Holt to Pennell and Rodriguez. Rodriguez then approached Superintendent Miles to express concerns about the relationships between District employees and The Concilio. Superintendent Miles suggested that Rodriguez’s concerns were rooted in a dislike for Holt and, in reference to documents mentioning The Concilio (including the document that Eroles had described to Rodriguez) that “sometimes things get messy.” conversation with Rodriguez. Holt informed us that, on May 25, she relayed Eroles’ comments about the parent engagement RFP to Superintendent Miles during an Imagine 2020 planning meeting.13 Holt stated that Superintendent Miles interrupted the Imagine 2020 meeting in order to call Pennell
Superintendent Miles did not recall this
The three participants to this conversation gave very different versions of what transpired.
Superintendent Miles did not recall this meeting although it was listed on his calendar. Superintendent Miles stated that he was not aware of the RFP review committee’s meeting or the outcome of their evaluation until the night before the June 13 Board briefing.
and instruct her that, when the results of the RFP were finalized, multiple vendors should be included. Neither Superintendent Miles nor Pennell recall this telephone conversation.
After Superintendent Miles became aware that The Concilio was not being awarded the contract, he pulled the RFP item from the June 13 Board briefing agenda.
On June 10, Sanders visited Ferguson to discuss an unrelated procurement. During the conversation, Sanders inquired about the status of the parent engagement RFP. During a
discussion about the errors on the board document, Sanders was told that, on the original board document, three vendors had been selected to receive the parent engagement contract but that Pennell had changed the board document to include only one vendor. Ferguson told Sanders a vendor from McKinney was the winner, but The Concilio was one of the three vendors originally slated to go to the Board. According to Sanders, “alarm bells” went off, and he immediately called Superintendent Miles. Sanders did not reach Superintendent Miles, so he left a message requesting a return call. Superintendent Miles did not call Sanders back until the evening of June 12. During the June 12 call, Sanders reported to Superintendent Miles that only one vendor had been selected to receive the parent engagement contract, and that it was not The Concilio. Superintendent Miles then called Pennell to inquire why the change had been made and decided to pull the RFP from the June 13 Board briefing agenda.
We found insufficient evidence to conclude that there was fraud or financial impropriety in connection with RFP #TH-204031.
Board policy CAA (Local) prohibits “any dishonest or fraudulent act regarding any finances of the District.” See Tab 5. Although the emails and conversations described above are
troubling14, for the following reasons, we ultimately found no fraud or financial impropriety in connection with RFP #TH-204031: First, all of the individuals we interviewed unanimously and unequivocally denied that a contract had been promised to The Concilio at any time. Second, we did not find any evidence that any District employee had a financial interest in The Concilio and/or a financial interest in the outcome of the RFP. Third, the interviewees were able to offer plausible explanations for many of the troubling documents. Holt and Sanders explained the March 2013 Imagine 2020 documents as preliminary planning documents used to formulate a budget for the Imagine 2020 program in connection with a June 2013 meeting. Those most involved in the Imagine 2020 project (i.e., Superintendent Miles, Holt, Sanders and Dr. Sylvia Reyna (Chief of School Leadership)), while acknowledging that the documents had a troubling appearance, also explained that they were only “planning” documents for the purposes of developing a budget for Imagine 2020, and that the inclusion of The Concilio’s cost proposal was done to estimate the proposed parent engagement budget to seek from the Board. Fourth, we determined that there was no impropriety in connection with the drafting, issuance, or scoring of the vendors’ responses to the RFP.
Rodriguez started with the District on March 8, 2013, and told us that, during her first three months on the job, she had (1) heard about and been copied on emails about The Concilio missing an RFP deadline and “solutions” to same; (2) heard complaints and concerns from her employees (Pennell and Eroles) about documents reflecting that The Concilio had been tabbed to receive a contract prior to the issuance of the RFP; (3) addressed these concerns with Superintendent Miles without resolution or satisfaction; and (4) been circumvented by Superintendent Miles who instead contacted her subordinate to discuss pulling the RFP from the June Board briefing agenda. Rodriguez stated that her growing concerns about the relationship between certain District employees and The Concilio, exacerbated by Superintendent Miles’ decision to pull the RFP without consulting her, made her suspect that there was foul play in the procurement process. As a result, on June 13 and 14, she contacted OPR and made a report.
Fifth, under Board policy BJA (Legal), the Superintendent is given broad discretion to manage the procurement process, including the power to pull board agenda items for any proper purpose. See Tab 2.
We found no Board policy violation in Superintendent Miles’ decision to pull the RFP from the June 13 Board briefing agenda.
Superintendent Miles’ decision to pull the May RFP and attendant board document from the June 13 Board briefing agenda – standing alone – is not a violation of Board policy. The Superintendent has the right and duty as administrative manager to supervise the purchasing process. Board policy BJA (Legal) states that the duties of the Superintendent include, inter alia: “Assuming administrative responsibility and leadership for the planning, organization, operation, supervision, and evaluation of the education programs, services, and facilities of the District…,” “Managing the day-to-day operations of the District as its administrative manager,…” and “Preparing and submitting to the Board a proposed budget and administering the budget.” See Tab 2 (BJA (Legal) at 1 of 2). According to Superintendent Miles, he repeatedly directed that multiple parentengagement vendors participate in and be approved through the RFP process.15 Therefore, Superintendent Miles stated that he decided to pull the item from the agenda because the Communications Department was asking the Board to take action and authorize the District to enter into a contract for parent education services with only one vendor, contrary to his prior
Superintendent Miles claimed that his directive throughout the planning of Imagine 2020 was for multiple vendors to be selected. Holt told us that Superintendent Miles called Pennell on Saturday, May 25 to inform her of the need for multiple vendors. Holt could only hear Superintendent Miles’ statements to Pennell. Holt reported that she overheard Superintendent Miles instruct Pennell to ensure that multiple vendors participate. Neither Superintendent Miles nor Pennell recall this telephone conversation.
directives. If Superintendent Miles pulled the RFP for this reason, it would not be a violation of Board policy.16 Not only is it within the Superintendent’s authority to pull an agenda item, but here there was sufficient cause to pull the proposed board document. First, the document contained errors that occurred late in the drafting process when the recommendation went from multiple vendors to one vendor, which went undetected by the Purchasing and Communications Departments. The drafting errors rendered the document internally inconsistent, making it unclear whether one or multiple vendors were approved in the course of the RFP process.17 Second, the agenda item was not submitted to Board Services with the proper supporting documentation; namely, the review committee’s scoring and a letter of recommendation. The lack of documentation caused confusion during the June 13 Board briefing, and resulted in the Trustees requesting additional information. Third, we could not determine who made the decision to select one vendor rather than several or how it had been made. Compare Tabs 58-61 (emails discussing draft board document(s)), with Tab 68 (final board document).
Pennell said that Rodriguez selected
Coppedge provided a statement to OPR that, on June 14, Superintendent Miles explained his decision to pull the RFP from the agenda stating “there is a political nature to the district that has to be considered and there is nothing wrong with approving vendors who have influence in the community.” See Coppedge’s Affidavit behind Tab 91. According to Board Policy, political influence is not one of the factors that can be considered in awarding a contract. See Tab 6 (CH (Legal) at 2 of 14) (listing factors that can be considered in awarding a contract, and prohibiting consideration of any other factors). Rodriguez had a similar recollection, but Superintendent Miles denied making this statement. In light of the substantial problems with the RFP documentation, we do not believe that there is sufficient evidence to conclude that the RFP was pulled solely or even primarily because of The Concilio’s political influence.
The document is inconsistent on its face as to whether one or multiple vendors were being recommended to the Board for approval. About halfway down the first page of the board document, it identified “Recommended Vendor(s),” referring the Board to “[s]ee attached list of vendors.” The attached second page identified multiple vendors: Practical Parent Education – McKinney, TX; The Concilio, Dallas, TX; and, Family Leadership –Fresno, California. These two provisions suggested that multiple vendors were being recommended to the Board by the Communications Department. However, only Practical Parent Education is identified at the bottom of the first page of the board document as the winner of the RFP, with the two other vendors being considered “should the District be unable to reach a satisfactory contract with” the winning vendor. The document had been drafted by Tim Holt, an employee in the Purchasing Department, who had been with the District for less than a year at the time the document was drafted.
Practical Parent against her advice that multiple vendors were needed to support the entire District. Rodriguez said that Pennell decided on one vendor and that she was unaware of any plan or possibility to select multiple vendors. For these reasons, we do not believe that Board policy was violated based upon Superintendent Miles’ decision to pull the RFP from the June 13 Board briefing agenda.
The Concilio violated Board policy by meeting with a Board Trustee
On or about February 4, 2013, Fortner, Lopez and Borus from The Concilio met with Trustee Morath and Sanders. See Tab 33. Trustee Morath and Sanders discussed the possibility of identifying an entity similar to The Concilio that would offer parent engagement services tailored to the needs of African American families. Sanders and Trustee Morath told The Concilio that there was concern among Dallas ISD Board members regarding whether The Concilio could serve the entire District and that, in order to maximize its chances of navigating the political issues with Board members, The Concilio should consider altering its image or approach to reflect the diversity of the families in the District. It was suggested that an image of increased diversity would make it easier for The Concilio to get approved by the Board in the future. At the February 4 meeting, The Concilio’s representatives responded that they already served African American families as part of their business model, but that they would take the suggestions seriously. A few months later, Superintendent Miles received an email from Fortner regarding a proposed name change to reflect that The Concilio “is inclusive of the student body population” it serves. See Tab 43. Board policy CHE (Local) prohibits vendors “conducting business” with the District from contact with individual Board members and requires Board members to report such contact 29
to the Superintendent. See Tab 7 (CHE (Local) at 2 of 4). “Conducting business” is defined to include “participation in a pending procurement, the negotiation of any contract, the performance of any contract, the selling of any product, and the performance of any service.” See Tab 7. On February 4, 2013, The Concilio was “conducting business” with the District. Although its prior contracts had been performed, The Concilio was actively discussing the performance of future work with the District. Beginning in early October 2012, The Concilio began negotiating a $33,000 contract with the Communications Department to host a 9-week PASE program (parent education) at 11 schools in the District. Originally, the Communications and Purchasing Departments planned to present The Concilio’s new contract to the Board for approval at the December 2012 Board meeting; however, Superintendent Miles asked Sprague to move the contract discussions to the January 2013 meeting. See Tab 26. The Concilio discussed both a 9-month and 9-week PASE program with District officials at the February 27 meeting. Moreover, Sanders was engaged in active discussions with The Concilio regarding services to be performed under the grant he was pursuing, as well as the Imagine 2020 project. Therefore, The Concilio violated Board Policy CHE (Local) by meeting with a Trustee while conducting business with the District.18
Rodriguez’s Bullying and/or Retaliation Complaint to OPR A. Summary of Factual Background
Rodriguez reported her concern that Superintendent Miles retaliated against her in the aftermath of the June 13 Board briefing. The key dates and events are as follows: ▪ Thursday, June 13: Rodriguez called OPR at 9:58 a.m. and reported to Don Smith her concerns regarding Oberlton. Rodriguez also said that she believed she was being taken
A person or entity that violates CHE (Local) “may have a pending bid or proposal rejected, be barred from receiving future contracts, and/or have an existing contract canceled.” See Tab 7.
out of the loop with the Superintendent and that he was going to vendors and other subordinates in her department without consulting her first. The call was short because Rodriguez said she had to attend the Board briefing. Rodriguez arranged to go to OPR the following day. ▪ Friday, June 14: Rodriguez met with OPR at length regarding RFP #TH-204031, among other issues. Several days later, Rodriguez supplemented her OPR report to add her fear of retaliation by Superintendent Miles in connection with the fallout after the Board briefing. There were a series conversations that caused Rodriguez to fear retaliation: ▪ First, on Tuesday, June 11, during a meeting with Justin Coppedge and Superintendent Miles, the Superintendent and Rodriguez discussed the reorganization of the Communications Department. The meeting ended with Superintendent Miles reminding Rodriguez that she was hired to follow the “intent of the commander.” 19 ▪ Second, on Friday, June 14, Rodriguez had two meetings scheduled with Superintendent Miles. The first meeting included Lisa LeMaster (Owner, The LeMaster Group Ltd.) to discuss LeMaster’s plan to reorganize the Communications Department. Superintendent Miles allegedly told Rodriguez that he expected Rodriguez and other Cabinet members to “cut themselves and bleed” for the Superintendent. After the second meeting scheduled on June 14, Superintendent Miles asked Rodriguez to stay behind and talk about the Board briefing. Superintendent Miles became angry and aggressive and, according to Rodriguez, said “I hired you to take a bullet for me.” Superintendent Miles and Justin Coppedge described the comments differently. Superintendent Miles questioned Rodriguez’s loyalty to him and the District. At the end of the meeting, Superintendent Miles asked Rodriguez to begin thinking about a transition from the District. ▪ Friday, June 14: ▪ Superintendent Miles called Don Smith to discuss the complaint. Smith said that, after learning that Rodriguez had filed a complaint against him with OPR, Superintendent Miles stated that he planned to fire Rodriguez the following Monday. See Tab 65. ▪ Smith called Bob Luna (outside counsel, OPR). Luna advised Smith to call Superintendent Miles and advise him not to fire Rodriguez because it could be deemed retaliation and potentially result in litigation against the District. See Tab 65.
Rodriguez stated that she had a good relationship with Superintendent Miles prior to the June 11 meeting.
▪ Smith called Superintendent Miles and passed along the advice from Luna. According to Smith, the Superintendent agreed that Rodriguez would retain her pay and title, but that he would remove her from his Cabinet. See Tab 65. ▪ June 18: Superintendent Miles, accompanied by Jack Elrod, met with Rodriguez to deliver Superintendent Miles’ letter of concern about Rodriguez’s behavior at the Board briefing. See Tabs 71, 88. ▪ June 20: At Superintendent Miles’ request, Elrod and Lisa Ray met with Rodriguez to provide her three options: reassignment to a non-Cabinet position at the same salary, administrative leave, or severance.
Findings Regarding Rodriguez’s Bullying and/or Retaliation Allegations 1. We determined that the allegations of bullying against Superintendent Miles are not substantiated.
Per Board Policy DH (Local), bullying is defined as “a form of workplace aggression, which includes incivility, rudeness, and discourteous verbal and non-verbal behaviors … that are unrelated to the employer’s legitimate business interests.” See Tab 3. “Bullying does not include the legitimate exercise of employee management, including assigning tasks, coaching, and taking work-related disciplinary actions against an employee.” See Tab 3, (DH (Local) at p. 1 of 8). We did not find any evidence to support an allegation that Superintendent Miles bullied Rodriguez. Rodriguez declined to characterize her conversations with the Superintendent as verbal abuse or “bullying.” We also interviewed other witnesses to the reported conversations, and each declined to characterize Superintendent Miles’ statements and actions as unprofessional or bullying.
We found insufficient evidence to conclude that Superintendent Miles retaliated against Rodriguez for making allegations about him to OPR.
Rodriguez expressed concerns that Superintendent Miles retaliated against her following the June 13 Board briefing. DH (Local) prohibits, inter alia, “retaliation against an employee … who, in good faith, makes a report, serves as a witness, or otherwise participates in an investigation.” See Tab 3 (DH (Local) at p. 3 of 8). Because the policy is narrowly written, a violation would occur only if Superintendent Miles took adverse employment action against Rodriguez because she reported a claim to OPR. Under the policy, it is not “retaliation” to terminate an employee for other reasons. Superintendent Miles first communicated to Rodriguez his intent to terminate, demote, or at minimum, remove her from his Cabinet before he learned of the OPR investigation. Although Rodriguez filed her OPR complaint on the morning of June 14, she did not discuss it with Superintendent Miles that day. Rather, at a meeting later that day, Superintendent Miles
informed Rodriguez that she should begin to “think about a transition” due to what he perceived as her lack of loyalty and behavior at the Board briefing. After the June 14 meeting, Superintendent Miles found out that OPR had requested files related to RFP #TH-204031. Superintendent Miles called Don Smith at approximately 6:30 p.m. on June 14 to inquire why OPR had obtained the documents. See Tab 65. Smith confirmed that OPR was looking into an allegation filed by Rodriguez about the May RFP. The evidence suggests that Superintendent Miles may have become more determined to terminate Rodriguez after learning of her OPR complaint During their 6:30 p.m. telephone conversation on June 14, Superintendent Miles allegedly told Smith that he intended to fire Rodriguez the following Monday. See Tab 65. Smith called Superintendent Miles back that same evening and instructed him, based upon advice Smith had received from outside OPR
counsel Bob Luna, not to terminate Rodriguez or reduce her salary for fear of a retaliation claim. See Tab 65. Superintendent Miles disagreed with Smith’s recollection of this conversation, and claimed that he shared with Smith only his concern over whether he could trust Rodriguez and his plan to remove her from his Cabinet. Moreover, later incidents further deteriorated the working relationship between Superintendent Miles and Rodriguez. For example, on June 18, Rodriguez called Elrod to discuss Superintendent Miles. Elrod described Rodriguez as almost hysterical. During the call, Rodriguez described Superintendent Miles as “evil” and “despicable” and said that he had “usurped her authority.” In addition, Superintendent Miles made the decision to document his concerns about Rodriguez’s behavior during and after the June 13 Board briefing. On June 18, after the call between Rodriguez and Elrod referenced above, Superintendent Miles and Elrod met with Rodriguez in order to deliver Superintendent Miles’ letter of concern to her. See Tab 71. Superintendent Miles and Elrod both reported that Rodriguez again called Superintendent Miles “despicable.” See Tab 88. The evidence suggests that the ultimate decision to terminate Rodriguez occurred after the working relationship between Superintendent Miles and Rodriguez had become untenable. On June 20, Rodriguez met with Elrod and Lisa Ray (Legal Services) to discuss the employment options that would be offered to her on a going-forward basis: reassignment to a non-Cabinet position at the same salary, severance, or administrative leave to afford Rodriguez time to evaluate other options. Rodriguez rejected the offer of a reassignment or administrative leave on the basis that either course carried the appearance that she had done something wrong. Elrod
recommended that she retain counsel and suggested attorney Daniel Ortiz, whom Rodriguez retained to negotiate a settlement and severance agreement with the District.20 Although the timing and circumstances of Rodriguez’s severance raise serious questions, we found insufficient evidence of retaliation for the following reasons: (1) the initial employment decision appears to have been made based upon Superintendent Miles’ disappointment with Rodriguez’s behavior at the June 13 Board briefing and without knowledge of the OPR investigation; (2) Superintendent Miles stated that the basis for terminating Rodriguez had nothing to do with her allegations to OPR; and (3) events (including multiple disparaging comments made by Rodriguez) after Superintendent Miles learned of the OPR investigation indicate that their working relationship had become untenable.
Alleged Obstruction of the OPR Investigation by Superintendent Miles A. Factual Background
The crux of the allegations in the preliminary OPR report is whether Superintendent Miles obstructed the OPR investigation into his actions. The report raised three possible acts of obstruction: (1) Superintendent Miles’ suspension of the OPR investigation (including confiscation of OPR’s investigative files) on June 26, 2013; (2) Superintendent Miles’
Under his employment contract, Superintendent Miles holds the “administrative authority and responsibility for the assignment and evaluation of all personnel other than [himself],” which includes the ability to “[i]nitiate the proposed termination or suspension of an employee’s employment or the proposed nonrenewal of an employee’s term contract.” See Tab 1. However, the fact that Superintendent Miles played a direct and substantial role in negotiating the terms of Rodriguez’s severance during the pendency of an OPR complaint she filed against him raises clear conflict of interest concerns. Indeed, the generous terms of Rodriguez’s severance give the appearance that Superintendent Miles may not have been truly objective and was motivated, in whole or in part, to buy Rodriguez’s silence and, consequently, abort the OPR investigation. First, Rodriguez was provided four months’ pay after working at the District for less than three and a half months. Severance in this amount is rarely given to employees who work such a short time at the District. Second, the settlement agreement included a ‘nondisparagement’ clause that, in effect, prohibited Rodriguez from speaking out about her complaints against Superintendent Miles or the District. Although Superintendent Miles’ participation in the severance negotiations is troubling, the Board’s conflict of interest policy relates to discrete factual situations and does not cover this situation.
declination of an interview request by OPR; and (3) Superintendent Miles’ conversations with witnesses about relevant facts during the pendency of the OPR investigation. We will address each of these matters in turn. The key facts surrounding Superintendent Miles’ possible obstruction of the OPR investigation are as follows: ▪ June 14, 2013: Superintendent Miles learned of the OPR investigation. See Tab 65. ▪ Superintendent Miles learned that OPR requested documents from Purchasing regarding RFP #TH-204031. Superintendent Miles called Don Smith to ask why OPR requested the documents. Smith confirmed the document request and explained that Rodriguez had filed a complaint with OPR regarding the May RFP process and possible efforts to steer a contract to The Concilio. ▪ June 17 through June 24, 2013: The OPR investigation continued. ▪ June 20, 2013: OPR interviewed Justin Coppedge. ▪ June 22, 2013: Superintendent Miles emailed Coppedge a copy of his draft statement in response to Rodriguez’s allegations. See Tab 76. ▪ June 24, 2013: ▪ Superintendent Miles called Byron Sanders to discuss their June 12 telephone conversation about the board document for RFP #TH-204031. ▪ OPR interviewed Sanders. ▪ June 25, 2013: ▪ Superintendent Miles called Smith about his belief that the OPR investigation should be terminated for “the good of the District” in light of the pending settlement between the District and Rodriguez. See Tab 82. ▪ OPR’s attorney Bob Luna and Jack Elrod reviewed whether to terminate the OPR investigation. ▪ Superintendent Miles called Board President Cowan to discuss whether to terminate the OPR investigation. See Tab 79. ▪ Wednesday, June 26, 2013: The OPR investigation was suspended.
▪1:00 a.m.: Board President Cowan emailed Elrod, copying Superintendent Miles, and Smith, with his instruction to suspend the investigation pending consultation with Board attorneys. See Tab 79. ▪ 8:00 a.m.: Smith responded “I understand,” to Cowan’s email. See Tab 79. ▪ 8:30 a.m.: Superintendent Miles called Smith (with Elrod and attorney Lisa Ray) to instruct Smith to suspend the OPR investigation and to turn over a copy of the report to Elrod and Ray for their review. See Tab 82. ▪ (Time Unspecified) Elrod and Ray retrieved and reviewed a copy of OPR’s preliminary report and evidence. ▪ (Time Unspecified) Elrod and Ray reported to Superintendent Miles that they found no violations of Board policy, rules or laws by the Superintendent in pulling the Board briefing agenda item. ▪ Thursday, June 27, 2013: Board meeting. ▪ Friday, June 28, 2013: Meeting among Superintendent Miles, Board President Cowan and Board Attorney Sonya Hoskins. ▪ Friday, June 28, 2013: The OPR investigation was unsuspended. See Tabs 85-87. ▪ Saturday, June 29, 2013: Elrod returned OPR’s files to Bob Luna.
Findings Regarding Superintendent Miles’ Alleged Obstruction of the OPR Investigation. We found no Board policy violation arising from the suspension of the OPR Investigation.
On June 26, 2013, Superintendent Miles suspended the OPR investigation into the allegations made by Rodriguez. According to Superintendent Miles, he suspended the investigation to avoid the risk of violating the mutual non-disparagement clause being negotiated between the District and Rodriguez. Although no witness was aware of any precedent or authority for suspending an OPR investigation, we could not find a Board policy that prohibited a Superintendent from doing so.
Moreover, Superintendent Miles gave the suspension directive after Board President Cowan emailed Superintendent Miles, Jack Elrod and Don Smith that the OPR investigation would be suspended until attorneys could assess and resolve the apparent conflict involved in OPR (a direct report to Superintendent Miles) investigating allegations about Superintendent Miles. See Tab 79. After the investigation was suspended, and without consultation with Board President Cowan, Superintendent Miles instructed Smith to provide copies of OPR’s preliminary report and evidence to Jack Elrod and Dallas ISD employment attorney Lisa Ray for their review. In response to Superintendent Miles’ verbal instructions to Smith regarding the suspension of the investigation and the seizure of the OPR files, Ray advised Superintendent Miles that, if he thought the investigation was meritless, he should “let the investigation play out.” concurred with Ray’s advice. Superintendent Miles disregarded the attorneys’ advice and instructed them to obtain a copy of the OPR investigative file and conduct a review to determine whether he had violated any Board policies, rules or laws. On the Superintendent’s instruction, Ray and Elrod obtained and reviewed the OPR documents on June 26. Ray and Elrod reported to Superintendent Miles that same day that they did not believe he had violated any Board policies, rules or laws. 21 Two days later, on June 28, 2013, the OPR investigative files were returned in their entirety to OPR, and the investigation resumed. See Tabs 86, 87. Shortly thereafter, the District made the decision to hire outside counsel to complete the investigation. Elrod
Elrod confirmed during his interview that he and Ray determined during their review of the OPR files that Byron Sanders might have interfered with the May 2013 RFP and improperly communicated with The Concilio during the open RFP period.
Notwithstanding the questionable judgment of a District employee suspending an investigation of himself, we see no violation of Board policy in connection with Superintendent Miles’ order to suspend the OPR investigation and seize OPR’s investigative file.
We found no violation of Board policy in connection with Superintendent Miles’ declining OPR’s interview.
On June 23, Superintendent Miles provided Jack Elrod with a written narrative rebutting the allegations made by Rodriguez. At or about this same time, OPR began attempting to schedule an interview with Superintendent Miles regarding the allegations made by Rodriguez. On June 25, Superintendent Miles, through Elrod, declined the interview request. Neither Superintendent Miles nor Elrod provided Miles’ written statement to OPR on June 25; however, each talked with Smith that day regarding Superintendent Miles’ position that the OPR investigation should be terminated “for the good of the District” on the basis that Rodriguez would withdraw her OPR and EEOC complaints in connection with her settlement with the District.22 See Tab 82. After further discussion – of which Board President Cowan was informed – the OPR investigation was suspended on June 26 to provide time for a legal opinion regarding whether OPR should investigate Superintendent Miles. See Tab 79. On June 23, Superintendent Miles provided Elrod with a written narrative rebutting the allegations made by Rodriguez. On August 16, Superintendent Miles participated in an
interview with the Firm about the subject matter under investigation. He further cooperated with our investigation by providing personal cell phone records and emails pertaining to the scope of our investigation.
Rodriguez informed us that, during the severance negotiations, District officials asked her to withdraw her OPR complaint. She refused to do so.
Board policy DH (Local) requires all employees to cooperate with all “official District administrative investigations or inquiries” by affirmatively providing “all relevant and factual information about the subject matter of the investigation.” See Tab 3, (DH (Local) at p. 3 of 8). If an employee fails to cooperate, his/her supervisor must issue a directive to cooperate. An employee’s failure to cooperate after receiving such a directive constitutes an act of “insubordination.” See Tab 3. Although Superintendent Miles’ failure to cooperate with the OPR investigation showed poor judgment, threatens to set a dangerous precedent for future OPR investigations, and arguably violated the spirit of DH (Local), it did not violate the letter of DH (Local) because he was not subsequently directed to submit to an interview by a supervisor. Moreover, after being ordered by the Board to cooperate with this investigation23, Superintendent Miles submitted to an interview by our Firm. Thus, we find no violation of Board policy in connection with this act.
Superintendent Miles violated Board policy and, thus, breached his employment contract by discussing facts relevant to the OPR investigation with two witnesses. a. June 24, 2013 phone call to Byron Sanders.
On June 24, 2013, Superintendent Miles called Sanders to inform him about the OPR investigation and discuss facts relevant to the OPR investigation. Sanders said that Superintendent Miles called to refresh his recollection about what had happened on the June 12, 2013 phone call that triggered Superintendent Miles’ decision to remove the parent engagement RFP from the Board briefing agenda. Superintendent Miles then gave Sanders his recollection of the conversation and asked if he recalled it differently. At the end of the conversation,
On July 26, the Board delivered to Superintendent Miles a letter that, inter alia, required him to “cooperate with the attorney hired by the board to conduct the independent investigation.”
Superintendent Miles informed Sanders that there was an OPR investigation and that he (Sanders) might be contacted by OPR for an interview. On the call, Sanders said that he agreed with Superintendent Miles’ recollection of the facts. Sanders stated that the call lasted between five and ten minutes. Superintendent Miles claimed during his interview not to recall the conversation, but did not deny or controvert Sanders’ recollection of the call. Board policy DH (Local) prohibits employees during an OPR investigation from “contacting the suspected individual in an effort to determine facts…” and/or “discussing the case, facts, suspicions, or allegations with anyone…within the organization unless specifically authorized to do so by the Office of Legal Services, OPR, and/or Police and Security.” See Tab 3 (DH (Local) at p. 2 of 8). Superintendent Miles’ conversation with Sanders violated Board policy DH (Local).
June 22, 2013 email to Justin Coppedge.
On June 22, 2013, Superintendent Miles sent his proposed written statement regarding the OPR case to his assistant, Justin Coppedge, and asked him to review it and comment. The email was sent from Superintendent Miles’ personal email account to Coppedge’s personal email account. See Tab 76. The timing of the email is significant because both Superintendent Miles and Coppedge were aware of the pending OPR investigation at that time. Superintendent Miles learned of the OPR investigation on the evening of June 14. Coppedge learned of the OPR investigation no later than June 20, when he was contacted by OPR for an interview. Thus, both
Superintendent Miles and Coppedge24 knew at the time that both were witnesses in an ongoing OPR investigation into Rodriguez’s allegations. The content of the memo is also significant because Superintendent Miles asked Coppedge to review Superintendent Miles’ rebuttal of Rodriguez’s allegations to OPR. In addition, Superintendent Miles’ memo recites events that were the subject of an affidavit Coppedge submitted to OPR in connection with his interview. The June 22, 2013 email is a second violation of Board policy DH (Local).
Superintendent Miles' violations of DH (Local) constitute “good cause” for dismissal under his employment contract with the District.
Under the terms of the Superintendent’s employment contract, any violation of Board policy or District policies, rules and regulations constitutes “good cause” for termination. See Tab 1 (p. 2 of 22 at ¶ 2.1 (first paragraph) and p. 18 of 22 at ¶ 5.3(a), (c), (d)). As discussed more particularly above, Superintendent Miles violated Board policy DH (Local) on two occasions by contacting witnesses in a pending OPR investigation. Therefore, these same acts are also violations of the terms of his employment contract.
Coppedge was the recipient of an unsolicited email by Superintendent Miles, another witness in the OPR investigation. Thus, arguably, the June 22, 2013 email is a violation by Superintendent Miles, but not Coppedge. However, on June 23, Coppedge responded to Superintendent Miles’ email and noted a discrepancy between his recollection and that of Superintendent Miles regarding a June 11 meeting with Rodriguez. See Tab 77. By that date, Superintendent Miles had already submitted the written rebuttal to Elrod and, thus, Coppedge’s message went unaddressed. However, because the OPR investigation was still pending, Coppedge’s email response represents a communication to a witness that is a violation of Board policy DH (Local).
Alleged Coaching of Cabinet Member to Draft Resignation Letter with an Intent to Create Negative Publicity for Board A. Factual Background
▪ June 2013 (date unknown): Dallas ISD officer Freddy Jackson witnessed a telephone conversation between Superintendent Miles and Kevin Smelker regarding the need to meet and discuss Smelker’s resignation letter. ▪ June 8, 2013: Smelker (personal email address) emailed Superintendent Miles (personal email address) a draft of his resignation letter for “review and discussion.” See Tab 69. ▪ June 16, 2013: ▪ At 6:42 p.m., Superintendent Miles and Lisa LeMaster had a telephone conversation lasting twenty-four minutes. ▪ At 8:53 p.m., LeMaster emailed Kevin Smelker (personal email address) and Superintendent Miles (Dallas ISD email address) a copy of a letter named “tough on Jones letter.” The cover email stated “This is your punishment for making me watch the meetings from last August and last week. A new letter…that is very tough on Jones. Take a look and let me know what you think.” According to the metadata, an original draft of the letter was created by a user named “Ann Smelker” and was edited by a user named “Lisa” on June 16.25 See Tab 66. ▪ At 8:55 p.m., LeMaster and Superintendent Miles had a two-minute conversation. ▪ At 8:59 and 9:00 p.m., LeMaster tried three times to recall the email message to Smelker and Superintendent Miles. See Tab 66. ▪ At 9:03 pm, Superintendent Miles and Smelker had a three-minute telephone conversation. ▪ At 9:16 pm, Superintendent Miles and LeMaster had a three-minute telephone conversation. ▪ At 9:22 p.m., LeMaster emailed Superintendent Miles (personal email address) and Smelker (personal email address) a link to a Microsoft help site titled “Recall or replace an email message that you sent.” See Tab 67. ▪ June 18-19, 2013: Smelker (personal email address), LeMaster, and Superintendent Miles (personal email address) exchanged multiple drafts of the resignation letter. See Tabs 69, 70, 72. See also Tab 68.
We requested a copy of the original draft of the letter, prior to any edits, from LeMaster. She provided a draft of the resignation letter, but we were unable to confirm when it was created or whether it was the original letter.
▪ June 20, 2013: ▪ Smelker signed a revised copy of the resignation letter. See Tab 74. ▪ At a private early morning meeting, Superintendent Miles informed Jon Dahlander, the District’s Executive Director of News and Information, of a plan to release Smelker’s resignation letter to the media. Dahlander attempted to dissuade Superintendent Miles from going forward with the plan and advised him instead to release the resignation letter to Board President Eric Cowan. ▪ At 7:36 a.m., Superintendent Miles and Dahlander had a two-minute telephone conversation. ▪ At 8:01 a.m., Superintendent Miles emailed LeMaster a copy of Smelker’s signed resignation letter. See Tab 74. ▪ At 9:42 a.m., Superintendent Miles emailed Dahlander a copy of Smelker’s signed resignation letter. At the same time, Superintendent Miles and Dahlander had a fourminute telephone conversation. See Tab 75. ▪ At 10:19 a.m., Superintendent Miles and Dahlander had a five-minute telephone conversation. ▪ At 10:49 a.m., Superintendent Miles and Dahlander had a two-minute telephone conversation. ▪ At 11:21 a.m., Superintendent Miles and Dahlander had a two-minute telephone conversation. ▪ At 11:50 a.m., Superintendent Miles and Dahlander had a five-minute telephone conversation. ▪ At 2:12 p.m., Superintendent Miles and Dahlander had a six-minute telephone conversation. ▪ At 2:18 a.m., Superintendent Miles and Dahlander had a two-minute telephone conversation. ▪ June 21, 2013: ▪ Between 7:14 a.m. and 8:03 a.m., Superintendent Miles had three telephone calls and exchanged a text message with Jim Schutze, a reporter with the Dallas Observer. ▪ At 8:06 a.m., Superintendent Miles had a six-minute telephone conversation with Smelker. ▪ At 9:31 a.m., Superintendent Miles had a nineteen-minute telephone conversation with LeMaster.
▪ At 4:38 p.m., Superintendent Miles had a five-minute telephone conversation with LeMaster. ▪ At 4:43 p.m., Superintendent Miles had a sixteen-minute telephone conversation with LeMaster. ▪ At 5:35 p.m., Superintendent Miles had a ten-minute telephone conversation with Dahlander. ▪ June 27, 2013: The Dallas Observer published an article titled “Who’s to blame for all those top defections at DISD? Not Mike Miles.” The article discussed, in part, matters raised in Smelker’s resignation letter. See Tab 84.
Superintendent Miles Arguably Breached his Employment Contract by Assisting Smelker with a Resignation Letter that Disparaged the Board
During the course of our investigation, an issue arose relating to the resignation of former Cabinet member and Chief of Operations Kevin Smelker.26 Multiple interviewees described Smelker as a friend of Superintendent Miles from their time together in Colorado and said Smelker made a short-term commitment to work at Dallas ISD. At or near the expiration of Smelker’s one-year27 anniversary with the District, Superintendent Miles and Smelker discussed drafting a resignation letter that would blame his departure on difficulties dealing with the Board (and, in particular, Trustee Jones). We interviewed Rodriguez, Dahlander, LeMaster, Smelker, and Superintendent Miles about Smelker’s resignation letter. LeMaster admitted helping to draft the resignation letter, but
Although this issue fell outside the scope of our initial engagement, during a preliminary oral report by Paul Coggins to the Board, the Board expanded the scope of our investigation to include this subject matter. According to Dallas ISD personnel records, Smelker started with the District on July 2, 2012 and, despite the fact his resignation letter was dated June 20, 2013, his last official day with Dallas ISD was June 28, 2013. Smelker denied that he made a one-year commitment to the District, and stated that he planned on staying longer. Notably, a draft of the press release announcing Smelker’s resignation quoted him as saying that “I thought I would be here longer” and then “I committed to help Mr. Miles during his fist (sic) year.” See Tab 73. The draft press release was authored by LeMaster, and was changed substantially before it was issued.
stated that her efforts were targeted toward softening the tone and content on the letter because she felt it was too tough on the Board. 28 When asked about the June 16 email to Superintendent Miles and Smelker containing the document titled “tough on Jones,” LeMaster informed us that the draft reflected her efforts to soften the tone and content of the letter and that she titled it “tough on Jones” as part of her effort to “tone down” the letter.29 LeMaster admitted trying to recall the email of June 16, 2013, upon realizing she had sent it to Superintendent Miles’ Dallas ISD email address. LeMaster stated that she was not
compensated under her contract30 for her work on the resignation letter, but instead did it as a pro bono project for Superintendent Miles. When we contacted LeMaster after our interim report to participate in a follow-up interview, she declined based upon the extensive media coverage of her role in the Smelker letter. See Tab 90. Dahlander admitted to being called into a meeting with Superintendent Miles on or around June 20, 2013.31 During our first interview, Dahlander initially took the position that his conversations with Superintendent Miles were personal and confidential, but Dahlander confirmed that Superintendent Miles informed him of a plan to assist Smelker in drafting a
Lisa LeMaster and the LeMaster Group Ltd. advertise themselves as “authorities in media crisis management.” In February 2013, LeMaster received a contract to reorganize the District’s Communications Department, and she subsequently hired Rene Martinez to assist her with the project. During the performance of this contract, LeMaster had meetings with Superintendent Miles, Rodriguez, and others about the reorganization, culminating in a written report that set forth the proposed changes. Rodriguez stated that, as the reorganization plan was being drafted, some of her employees approached her and stated they had heard rumors that there would be layoffs in the Communications Department and that people should contact Rene Martinez if they were interested in the openings. Martinez denied making these statements. 29 Despite LeMaster’s claim that she tried to soften the tone of the letter, the June 8 draft of the resignation letter, which was drafted by Smelker is substantially less explicit and softer in tone than the version revised on June 16 by LeMaster. Compare Smelker’s revised ‘June 8’ version behind Tab 69, with LeMaster’s ‘tough on Jones’ letter behind Tab 66. LeMaster’s contract was slated to end no later than June 15, 2013, and we found no evidence that she billed the District for the services performed on the Smelker resignation letter. During her interview, Rodriguez informed us that Dahlander approached her after his meeting with Superintendent Miles on June 20. Dahlander told Rodriguez that Superintendent Miles had briefed him on a plan to assist Smelker with the drafting of a resignation letter that was negative toward the Board in order to generate positive publicity for Superintendent Miles and negative publicity for the Board.
31 30 28
resignation letter that was negative toward the Board with the goal of publicly releasing the letter to the media with the hope that it would generate positive publicity for Superintendent Miles and negative publicity for the Board. Dahlander also stated that he tried to dissuade Superintendent Miles from moving forward with the plan, and advised him that, “if [the letter is] coming from Smelker –which I assume it is– deliver the letter to the Board President” rather than the media. Dahlander declined to discuss further the details of the June 20 meeting with Superintendent Miles and stated that his advice to Superintendent Miles was of a personal and confidential nature.32 Superintendent Miles confirmed that he reviewed draft resignation letters and knew that LeMaster was helping Smelker with the letter, but said he did not see everything that LeMaster and Smelker did. Superintendent Miles acknowledged making suggestions and giving advice about the tone of the letter, whether Smelker should reveal specific instances of concern, and whether the letter should reference names of individual Trustees. Superintendent Miles admitted discussing with Smelker how they could transmit the resignation letter to the press. Superintendent Miles stated that, in the end, Smelker decided to address the letter only to him (Miles), and that he does not know how it was provided to the press. Smelker told us that Superintendent Miles was not involved with the drafting of the letter and that the final executed version of the letter reflected his true reasons for leaving Dallas ISD.
After our preliminary oral report, at the request of the Board, we interviewed Dahlander a second time regarding the June 20 meeting with Superintendent Miles. Dahlander again declined to discuss the details of that meeting, citing the Code of Ethics from the Public Relations Society of America that he interprets to require him to safeguard confidential communications with a client.
Smelker also denied making only a one-year commitment to Dallas ISD.33 Finally, Smelker stated that, although he participated in an interview with Jim Schutze regarding his departure, he did not release his resignation letter to the press and did not authorize anyone else to do so. Based upon the sequence of events, we believe that Superintendent Miles had substantial input into the form and content of Smelker’s letter. For instance, on June 16, Superintendent Miles and LeMaster had an extended conversation just prior to LeMaster circulating a draft of the letter to Smelker and Superintendent Miles with the heading “tough on Jones.” Moreover, on June 20, Superintendent Miles discussed a plan with Dahlander to use the resignation letter as an opportunity to generate positive publicity for himself and negative publicity for the Board. On June 21, the day after the resignation letter was executed, Superintendent Miles had multiple conversations with LeMaster, Dahlander, and Jim Schutze, who later published an article that appears to have accomplished Superintendent Miles’ intended effect—that is, positive publicity for him and negative publicity for the Board. Even if it is determined that Superintendent Miles played a role in drafting and disseminating Smelker’s resignation letter, that does not appear to violate any existing Board policy. We were also asked by the Board, however, to look into whether the Superintendent’s actions violated his employment contract. If the Board is convinced that the evidence set forth above establishes a plan to disparage the Board, such a plan is arguably a violation of Superintendent Miles’ employment contract. Under that contract, the “failure to take steps to maintain an effective working relationship, or
The emails attached in Tabs 69 and 70 indicate that Smelker sought Superintendent Miles’ input and comments to the draft letters. Moreover, the extended conversation between Superintendent Miles and LeMaster immediately before LeMaster authored the “tough on Jones” draft of the resignation letter suggests he had input into that draft of the letter.
maintain good rapport with parents, the community, staff or the Board” constitutes “good cause” for dismissal. See Tab 1 (p. 18 of 22 at ¶ 5.3(t)).
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