As Non-Disparagement Clause Breach Suit Looms, Tillman Begs Access To District Lawyers

His board colleagues appear to be leaning in favor of indulging San Bernardino City Unified School District Board Member Danny Tillman in his suggestion that individual board members be permitted to confer with the district’s legal counsel at will.
Some have interpreted Tillman’s request as a ploy to have the district foot the bill for an individual board member’s legal costs growing out of that member’s personal action independent of the collective decisions arrived at by the board.
The board revisited that section of the district’s board policy manual pertaining to the way in which the board is to go about seeking legal advice. That section of the manual was last modified and ratified by the school board as it was then composed on October 16, 2007. Within the board policy manual, San Bernardino City Unified School District Bylaw 9124 states, “The board of education recognizes the complex legal environment in which school districts operate and desires reliable, dependable legal advice. The board also supports collaborative legal efforts with other agencies and districts in order to promote the district’s interests. The board as a whole may use the county counsel, district attorney, or private attorneys to meet the needs of the district. The district’s legal counsel may: 1. Render legal advice to the board and the superintendent or designee. 2. Serve the board and the superintendent or designee in the preparation and conduct of district litigation and administrative proceedings. 3. Render advice on school bond and tax increase measures and prepare the necessary forms for the voting of these measures. 4. Perform other administrative duties as assigned by the board and superintendent or designee. The superintendent may confer with the district’s legal counsel at his/her discretion and shall provide the board with desired legal information.”
As worded, the most logical interpretation is that while the board acting as a body can collectively call upon the district’s legal counsel for legal advice or direction, individual board members on their own cannot buttonhole the district’s lawyers.
“I think it’s important for board members to know which counsel there is you would call in case you had a question,” said Board Member Danny Tillman. “I read in this proposed thing from CSBA [California School Boards Association] about having to get a majority or the board president [to actuate the district’s legal counsel]. I don’t agree with that because I’ve been around long enough to know there are times when you may question whether or not the board president or another board member or the majority of the board is doing something that is legal and are you in legal standing, so to call counsel and ask a quick question I think is a good thing. Also the challenge being if a majority of the board were to bring in counsel and start doing legal things to a board member, as a board member we don’t have any means of paying for counsel. So you would have to be able to call someone and say, ‘This is what I’m being told, and how should I respond?’ A board member should never represent themselves. It would be a horrible situation for someone without the means to pay for legal counsel to be in a predicament where you’re being served or talked to by somebody else’s counsel.”
Board Member Barbara Flores said, “I agree with you. You’re right in terms of us not having to represent ourselves, but being able to ask a legal question. So, I support that.”
Board Member Maya Ceballos said, “There’s been some confusion with conversations that have happened from maybe individual board members having access to attorneys outside from the board as a whole, even knowledge from the rest of the board. Although I see your point, Mr. Tillman, and it is very well taken, I think we do have to clean it [the policy] up a little bit in terms of the parameters that we have as individual board members to be able to contact counsel. It just so happened recently that board members were contacting attorneys without the knowledge of the rest of the board members. For me, that’s very uncomfortable, as part of the board for me to not to know who on the board is contacting [the district’s lawyer], when they’re contacting and for what reasons they’re contacting, in the spirit or trying to maintain transparency to the entire board. I would like for us to have further discussion… and look at the other board policy that has been brought before and maybe do some comparisons and talk a little more in depth about it. My recent experience was not a good one. I just want to make sure that there are specific parameters on what our ability as individual board members are in terms of contacting legal counsel.”
At that point, Tillman offered his interpretation, one not shared by many, that he and the other members of the board were at liberty to confer with the district’s legal counsel on individual matters.
“Just to be clear, Ms. Ceballos: We have an existing policy, so tonight would be a good time to look for consensus and see whether the board wanted to change it,” Tillman said. “It’s going to be obvious tonight if we have four votes or not. If we don’t have four votes, then the existing policy will stand, and the existing policy does allow a board member to call a attorney who has a contract with the district.”
Dr. Gwen Dowdy-Rodgers disputed Tillman’s wishful interpretation that the present policy gives a board member one-on-one access to the district’s counsel.
“To your point, Mr. Tillman, of what you just mentioned: Are you saying this policy says that we can [unilaterally meet with the district’s lawyer]? I think that’s where our discrepancy came in, by saying board. It just doesn’t say board member individually. I’m looking at this other one. They gave us a sample of CSBA [the California School Board Association policy guideline relating to a school board’s access to district lawyers], and I think somewhere in there it even says, ‘Don’t do it.’”
Dowdy-Rodgers said San Bernardino City Unified School District Bylaw 9124 is “vague. The vague part of it also may have to have a legal opinion, too, because how often, what are we calling for, what are the parameters around calling and asking. How do you call and clear up something that may be personal as opposed to something that may be pertaining to the whole board? I don’t think this policy has enough meat in it the way it stands right now for us to be clear.”
Having pushed for and failed to get a consensus interpretation of Bylaw 9124 that would allow him and his colleagues to unilaterally confer with the district’s lawyers, Tillman redirected his effort to getting a majority of the board to change the policy to allow individual board members to have access to the district’s lawyers.
“If you had a majority of the board that wanted to change this policy… we could do that tonight,” Tillman said. “You could say I want to bring this back, look for consensus to say that a board member cannot call counsel unless they have approval by the majority of the board or they’re the president…”
“It’s already vague right now,” Dowdy-Rodgers interrupted him. “I can’t even interpret it because it only refers to the board. So, are we the board as six or seven of us or are we individual? I read this as the board, not an individual.”
“I really think it’s critical that a board member has the ability to call counsel that, of course, has a contract with the district already,” said Tillman. “You need to think about this. You could have one board member that has upset the majority of the board. They could take legal action against that board member that’s not legal. The only way that board member could know that is to have counsel themselves. You’d have to provide them with counsel. We do that for everybody.”
Tillman then sought once more to pull from the board an interpretation that the policy as it stands allows an individual member to confer with a district-paid lawyer.
“You can tell me that I’m wrong, that we know it doesn’t preclude someone from calling, because it says the board can,” Tillman said. He went on to say that the board members should be and are entitled to district-defrayed lawyers. “There may be cases where a board member has to assume counsel because the board has taken action against that board member but the district has to pay for both,” he said. 
The board with a consent finding agreed to have the board’s policy subcommittee look into keeping the policy as it is or changing it or refining it. The subcommittee is to look at the options of redrafting the bylaw to state explicitly that only the board president or a majority of the board can elicit advice from the district’s legal representative; leaving the language as it currently exists; or rewriting the bylaw so that it allows without equivocation that a board member on his or her own is permitted to seek advice from the district’s lawyer. The subcommittee is to consider adding the term individual board members to the language after it examines the recommendations from the California School Board Association and considers the language other districts use in their bylaws.
Tillman’s concern for being able to utilize the district’s legal counsel stems from a pending lawsuit that is heading his way from former Superintendent Harry “Doc” Erwin. That lawsuit is likely to be filed on September 20.
Erwin was hired by the seven-member board in the Spring of 2021. In August 2021, with the full support of the board, Erwin began a survey of the district’s various service contracts. Thereafter, prior to the conclusion of those surveys and any findings being made, Erwin held off on renewing several of those contracts. By September 2021, three members of the board – Abigail Medina, Dr. Barbara Flores and Tillman – were discontented with what they considered to be Erwin’s fixation on those contracts, some of which involved companies owned or operated by political donors, associates or friends of certain board members. By October 2021, Tillman, Flores and Medina had formed a consensus to fire Erwin, but lacked a requisite fourth vote to hand Erwin a pink slip. Erwin’s continuing tenure, which was backed by board members Dr. Scott Wyatt, Dr. Margaret Hill, Maya Ceballos and Dr. Gwen Dowdy-Rodgers, was thrown into jeopardy with Hill’s December 2021 death. Thereafter, in January and February of this year, Tillman, Flores and Medina militated to get a fourth member of the board appointed to replace Hill, one who would go along with them in their effort to sack Erwin.
On May 3, 2022, Erwin tendered his resignation effective July 1, in accordance with a severance agreement which contained a mutual non-disparagement clause by which the two parties – Erwin and the district – agreed to refrain from badmouthing one another. Erwin abided by that restriction, and did not speak about various district contracts with individuals who were friends, supporters or associates of Flores, and he let lie circumstances pertaining to current or past associations between the district and entities in which members of Erwin’s family had a financial interest. Erwin made the point that the district had to evolve in such a way that the decision-makers were motivated solely by improving or perfecting the district’s educational methods and were not distracted by any other considerations venal or financial, such that those decisions were not tainted by cronyism and nepotism. “Our actions, attitudes, behaviors and beliefs should always reflect our commitment in making decisions good for kids,” Erwin said. “When you don’t do that, silence is acceptance.”
With his tenure as superintendent running through until the end of the 2021-22 school year on June 30, Erwin remained in place long enough for an audit by the Great Gains educational approach advising firm given authorization at the August 17, 2021 school board meeting to be completed and accepted by the district. That audit pertained to the district’s financials and performance with regard to so-called Creative After-School Programs. Great Gains looked at how effective those programs were, how much student participation they attracted and their cost effectiveness.
Great Gains also explored whether there were any relationships between those owning or operating the companies with the contracts for the Creative After School Programs and members of the board. According to Great Gains, it surveyed the YMCA of the East Valley, Transforming Arts and Minds, Project Life Impact, Ecclesia Christian Fellowship, Athletes for Life and the Akoma Unity Center, all of which were entities with Creative After-School Program contracts. None of the principals in those companies had a direct connection to any of the board members, according to Great Gains.
Great Gains did determine, however, that the Center for Youth and Community Development, which was previously known as the Boys and Girls Club and which since 2018 received more than $6.6 million in contracts from San Bernardino City Unified School District, between 2018 and 2020 employed Tillman’s wife, Tracy Tillman, as its chief financial officer.
The Great Gains report noted that “Board Member Tillman recused himself for the Center for Youth and Community Development board votes taken on: September 4, 2018, May 21, 2019, June 18, 2019, [and] July 16, 2019.” The report went on to state that, “Even though Mr. Tillman did recuse himself from these votes, staff intimated Mr. Tillman continued to informally influence district officials and other board members on behalf of these entities. Mr. Tillman did vote in favor of the Center for Youth and Community Development contracts on 08/04/20, 06/22/21 and 10/19/21.”
When, shortly after it was released, there was publicity about the Great Gains report, Tillman went ballistic. He insisted that the Great Gains survey was not a legitimate undertaking, even though it had been commissioned in August 2021 by a unanimous vote of the board, meaning he had himself called for the report being carried out.
According to Tillman, the report was not an audit. Dwelling on nepotism, particularly as it applied to his family, Tillman said, was “evil. That was not an audit. Auditors do audits. That company does not do audits.”
Compounding the situation was that Tillman’s daughter, Eva Tillman, like his wife, has had for some time a money-making arrangement with the district, that being her role as the principal of the Savant Preparatory Academy of Business, which the district sponsors. Tillman insisted that he has consistently recused himself with regard to any board votes pertaining to the Savant Preparatory Academy.
In his initial public statements to the Sentinel about Erwin after his departure, Tillman referenced the superintendent’s May 3 joint statement with the district which held that Erwin was voluntarily retiring, and he said he was making no claim that Erwin had acted improperly in his role as superintendent.
“I’m not saying anything about him,” Tillman said. “Legally, I can’t talk about personnel issues. He left to go on to someplace else.”
Nevertheless, in heated rejections of the findings contained in the Great Gains report, Tillman’s anger spilled forth, saying that Great Gains taking up the question of nepotism was entirely unwarranted, impertinent and malicious. He blamed Erwin for the report being conducted altogether. Tillman rejected any suggestion that he was responsible for the perception of a conflict when it came to his family members having a financial relationship with the district. Rather, he suggested, the adverse publicity he had been subjected to was a direct and proximate outcome of an irresponsible and unethical press corps that had reported on an equally mean-spirited and unethical investigation carried out by Great Gains, which delivered a report containing inaccurate findings. He lambasted the press for accepting the Great Gains findings without doing any verification of the report’s contents.
Of the Great Gains report, Tillman said, “It’s a scam. It’s a lie. There ain’t nothing on me. These fools spent tens of thousands of dollars investigating me and came up with nothing. I never voted for nothing when she [his wife] was working there.”
Erwin had set him up to look bad, Tillman said. “I had an evil person working in my district and they did some evil shit the first time they used district funds to do a hit on me,” Tillman said. “I dealt with sickos. I accept responsibility, yes. I hired some sick people and when I hire sick people, it is my responsibility. When you hire someone like that, you see what you did, and you fire them.”
Tillman railed on. “Look at when that company [Great Gains] came into existence,” he said. “He [Erwin] hired a company which was created to do a BS report that never found anything after he [Erwin] got pissed off. Greater Gains did not come into existence until somebody hired them to do a hit piece on me. It’s a scam.”
Based on his position that Tillman had violated the non-disparagement clause of his separation agreement with the district, Erwin is now purposed to take legal action. Tillman, uncertain of whether the suit Erwin will undertake will target the district or him alone, is now anxious to ensure that the district will represent him in any litigation that is to take place.
It is not clear whether his board colleagues know, as Tillman does, that Erwin is going to pursue legal redress.

Leave a Reply