A recently-released internal letter shows the Scottsdale Unified School District could have settled a public records lawsuit two years ago for under $7,000 – a fraction of the $119,000 a judge awarded in the case earlier this month.
John and Mary McCarthy brought a lawsuit against the district in September 2017 to force the district to turn over public records related to the alleged mistreatment and abuse of their son while he was a student at Desert Mountain High School.
The family and district agreed to a settlement in April 2019 in which the district agreed to provide the records and cover the family’s legal costs. A judge awarded the family $119,353 on Aug. 30 to cover those costs.
The district, not its insurance provider, is responsible for paying the $119,000, SUSD district spokeswoman Amy Bolton said.
“The settlement will be paid by the district,” Bolton said.
The financial cost to the district could have been much less had it settled with the McCarthys two years ago, according to a letter written by board member Jann-Michael Greenburg to Superintendent Dr. John Kriekard in April 2019.
On Nov. 21, 2017, the family offered to settle if the district provided an index of all records that were the subject of the suit and pay the family $6,602 to cover its legal costs up to that point, Greenburg’s letter states.
“It took much longer and more money than it ever should have,” Mary McCarthy told the Progress before the details of the first settlement offer became public.
Mary McCarthy had previously declined to provide the specific amount of the first settlement offer; however, she has since confirmed the numbers in Greenburg’s letter are accurate.
Bolton indicated the district declined the first settlement offer because it would have included dismissing the case without prejudice.
“A dismissal without prejudice would have allowed them to raise the same issues, based on the same allegations, in a subsequent lawsuit which is essence did not resolve the matter for the district,” Bolton said. “Until the most recent offer received by the district, the district did not receive an offer that would have conclusively concluded the dispute.”
It does not appear the district’s lawyer consulted the governing board before doing so.
According to the Greenburg letter, SUSD’s counsel responded to the offer “within an hour” of receiving it, declining the settlement and countering with an offer that was unlikely to be accepted.
“The only material difference between the 2017 settlement offer and the district’s counteroffer is that the counteroffer excluded the requested documents index,” according to the letter.
SUSD records show the board did not meet publicly or in an executive session on Nov. 21, 2017 – an indication the board was not consulted on how the district should respond.
Board Members Sandy Kravetz, Barbara Perleberg and Allyson Beckham, who were all on the board in 2017, did not return a request for comment. Greenburg and Beckman were not on the board in 2017.
Greenburg’s letter is critical of SUSD General Counsel Michelle Marshall’s performance, citing the McCarthy case as one example.
Greenburg, who was not on the board in 2017, said he received documentation of the original settlement from the McCarthy family after Marshall failed to provide it for him.
“Not only was this exceptionally embarrassing, it was simply unacceptable that I was forced to ask the parties suing the district to share these documents because the district’s own counsel refused to do so,” Greenburg wrote.
Greenburg also accurately predicted that SUSD’s decision to turn down the 2017 offer, and a later offer to settle case for $88,000, would likely result in increased costs for the district.
“Given how the court has ruled previously, I am fairly confident that the plaintiffs will be awarded legal fees in excess of $6,602, if not the $88, 000 requested in the 2019 settlement offer.”
As part of the 2019 settlement, the McCarthys had requested $88,000 from the district to cover legal expenses.
However, the SUSD Governing Board on a 4-0 vote opted to have the judge decide the award instead, according to minutes from a special governing board meeting on April 16.
At the April 16 meeting, board President Patty Beckman said the decision to settle and leave the question of attorney’s fees to the court was made “on the terms recommended by counsel.”
Greenburg recused himself from that vote.
“The district believed it was in its best interest at the time it accepted the offer to allow the court to determine the reasonable attorney’s fee rather than accept the figure offered by the plaintiff’s so that an objective party could make the assessment based on review of records,” Bolton said. “Allowing the court to decide the matter gave the parties the opportunity to brief the issues.”