Petition re Illegal OAH Decision
Page 28
TABLE OF AUTHORITIES
Board of Education v. Matthews (1957) 149 Cal.App.2d 265
Board of Education v. Swan (1953) 41 Cal.2d 546
Gardner v. Commission of Professional Competence (1985) 164 Cal.App.3d 1035
Governing Board of the Oakdale Union School District V. Seaman (1972) 28 Cal. App..3d 77
Hanley v. Murphy 40 Cal.2d 572 [255 P.2d 1]
Hayman v. city of Los Angeles 17 Cal.App.2d 679 [62 P.2d 1047]
In re Micheal G. (1998) 63 Cal.App.4th 700
Woodland Joint Unified School District v. COMMISSION on Professional Competence (1992) 2
Cal.app.4th 1429
The illegal decision
included the finding:  
there is no evidence
CTA supported
Larkins.  That's true,
but why does that
matter?  Does CTA
make decisions for
the OAH?
The Commission Violated
the Rules of Evidence

The COMMISSION ignored evidence that  Mr. Werlin was very
hostile to Mrs. Larkins, and that he was given complete authority by
the DISTRICT to determine every condition of Petitioner’s
employment.  The COMMISSION ignored evidence that Mrs. Larkins
and any reasonable person would fear to go into a situation as
serious and escalating as the one he created for Petitioner.  

Insubordination is not supported by the evidence nor by the proper
construction of the law.

There is no evidence that Maura Larkins’s quest for justice was
blind, nor that is was based upon a stubborn, unforgiving nature.  A
quick glance at the overwrought language of the decision, and at
Judge Ahler's letters to Commission members, indicates that the
judge's quest to "send a message" may have been blinded by a
sexual interest in one of the panelists, and that the judge himself has
a stubborn, unforgiving nature.  

The unsigned, undated letter allegedly written by Michelle
Scharmach (Exhibit 7), contains hearsay about Petitioner.  Mrs.
Scharmach did not testify.

There is no finding that Petitioner failed to forgive a single action or
a single person.  One would presume an act must have taken place
in order for it to be forgiven.  What acts should have been forgiven?  
False allegations?  It can't be that, because the COMMISSION has
not found one single allegation to be false, not even the allegation
that Petitioner had behaved as if she would kill people.          

B.  THE COMMISSION VIOLATED THE RULES
OF EVIDENCE

There was clear abuse of discretion by the COMMISSION in
accepting and relying on evidence which was hearsay, notes which
were prepared long after events and presented as contemporaneous
notes, an unsigned and undated letter which was slipped into a back-
dated report.

The District produced documents in late December 2002 for a
January 6, 2003 hearing.

Pages were missing: Bate-stamped pages
39 and 55 in particular.

There was not time to compel complete production.  The district was
allowed to cover-up critical evidence.   

Many, if not most, of the notes produced by Principal Donndelinger
were prepared long after the date to which they refer, most likely
after the District was sued. Dr. Donndelinger’s notes dated March 26
include the words, “I later tried to call her that evening at home.”  
The words that evening indicate that these notes were prepared a
while later.  They should not have been admitted into evidence
without some claim of memory impairment and some explanation of
why the original notes were not produced for some dates.

The “library incident” was reported three months after the fact by
Mrs. Scharmach and Ms. Del Galdo.  Dr. Donndelinger’s notes about
it were prepared long after the report, which occurred long after the
alleged “incident.”  On these notes, (Exhibit 14, pages 1 and 2).  Dr.
Donndelinger wrote at the top of the page, “Around 9/21/00.”  In
the middle of the page she wrote, “About one month later.”  On the
next page she wrote, “Lynne and Michelle told me before
Christmas.”  These are obviously notes written long after the
incident, and should not have been accepted into evidence.

Neither Mrs. Scharmach nor Ms. Del Galdo testified.  Mr. Werlin’s
and Dr. Donndelinger’s testimony is hearsay.  

Mrs. Scharmach’s letter about the incident (Exhibit 7) is not
acceptable because it is hearsay, it is unsigned, undated and was
added to Mr. Werlin’s November 21, 2001 report (Exhibit R-35),
and produced after Mrs. Larkins filed suit against the District. Exhibit
R-35 is the actual report given to Mrs. Larkins on November 21,
2001.  Exhibit 44 is the same report excet it has been revised so as
to make a reference to the Scharmach letter, and has been back
dated to October 4, 2001 (see page 423 of Court Reporter’s
Transcript). Mrs. Scharmach did not testify as to the date or the
validity of the letter, nor did she sign it.  Mrs. Larkins testified that
the real report was Exhibit R35 ( pages 420-423 of Court Reporter’s
transcript). It is most likely that this letter was prepared after
Petitioner wrote to her saying, “I cannot fault you.”  Mrs. Scharmach’
s guilty conscience may have caused her to read it, “I cannot forgive
you.”

FACTUAL FINDING 28—Invalid—relying on hearsay of hearsay.  Mrs.
Larkins testified that Kathy Bingham said that Mrs. Larkins might
have poisoned food. Mrs. Larkins did not testify to having told a joke
to Kathy Bingham.  Kathy Bingham did not testify.  Maria Beers was
not present at either time when Mrs. Bingham or Mrs. Larkins spoke
of poisoned food.  The COMMISSION is relying on Maria Beers
hearsay of some unknown person’s hearsay.

Mr. Werlin’s and Dr. Donndelinger’s testimony about events they did
not witness, and what others said that someone said, and even what
someone said to them, is hearsay.  This hearsay should not be relied
upon for findings.  

No hearsay, or hearsay of hearsay, should be relied upon for
findings.  

Petitioner requests that Exhibit 40, a grievance regarding Transfer,
pertaining to Article 33 of the Collective Bargaining Agreement be
entered as evidence.  The Commission chose to rule on this
grievance, without the grievance itself being taken into evidence.  
Also, Petitioner asks that the appropriate Article from Exhibit 6, the
Collective Bargaining Agreement, be entered into evidence in order
to rule on this grievance.

The Commission, in Factual Finding 17, ruled on the facts in
Grievances 1 and 2 regarding Employee Discipline (Exhibits 26 and
30).  Petitioner asks that Exhibit  be taken into evidence.  Petitioner
asks that Article 38, Employee Discipline, be accepted into evidence
in order to decide the grievance.  

The Commission also ruled on the Safety Grievance.  Petitioner asks
that the court review the decisions on the grievances.  Alternatively,
Petitioner asks the court to invalidate the findings.

Notice of Logdment is attached.  Exhibit Books and Court Reporter’s
Transcript and court record are attached as exhibits and
incorporated by reference
"The only thing I had on my side was the truth and the law.

The school district, run by Cheryl Cox, Bertha Lopez and Pamela
Smith and the politicians they obeyed, had a wealthy, corrupt
insurance company on their side, and a justice system too
overwhelmed to deal with schools that keep wrongdoers in power."
--Maura Larkins
SAN DIEGO
EDUCATION REPORT
mauralarkins.com
SD Education Rprt Blog