BARTO FILES POLICE REPORT, ALLEGES VIOLENCE BY CVUSD STAFFER. CVUSD DENIES INCIDENT, THREATENS ECM AND TRIES TO SUPPRESS NEWS REPORT

By Miriam Raftery

Photo: Barto's bruised and swollen hand after the alleged door-slamming incident

February 26, 2020 (El Cajon) – Cajon Valley Union School District trustee Jill Barto has filed a police report alleging that executive coordinator Naomie Rodrigues intentionally slammed a door on Barto’s hand at the district office on Dec. 19, causing pain, distress and injury.  ECM journalist Paul Kruze has told police that he witnessed the alleged injury.

The district calls the allegations of the door-slamming and injury to Barto “false.” The district’s law firm, Artiano Shinoff, has sent a letter threatening ECM with legal action after learning that ECM intended to publish a news report on the alleged physical attack.

The alleged door-slamming injury occurred just two weeks after Barto filed a federal lawsuit against the district alleging violations of her civil rights and First Amendment free speech rights, as ECM reported. The district then filed a countersuit against Barto. The legal threat to ECM, moreover, came just two days after journalist Kruze filed his own claim against the district alleging  "false and harmful" defamatory statements..

The alleged door-slamming injury

After the Dec. 19 public board meeting, trustees gathered in a break room adjacent to Superintendent David Miyashiro’s office, accessed via David Hidalgo’s office which opens onto the public lobby. Barto and Kruze say that they were in the lobby talking about holiday plans when Kruze readied to leave.  He states that he saw Barto try to walk into the room, where Barto said board members were enjoying food provided by the district.

Barto and Kruze indicate they saw Rodrigues enter the room. According to Barto and verified by Kruze, “I proceeded to follow her in and she ran back toward the door and slammed it closed to keep me out.”  Barto says Rodrigues “absolutely” saw that the trustee’s hand was in the door before slamming it.  “I got my hand out and then I yelped, banged on the door. Having my ring on probably saved my hand. It got crushed a bit.” 

Barto says superintendent David Miyashiro came along afterwards and opened the door to the room. According to Barto, she followed Miyashiro and Rodrigues inside. She is not sure if Miyashiro saw the door slam, but is certain he heard what came next.

 “I said to Naomie, `You didn’t have a right to slam the door on my hand.’ She called me a drama queen,” Barto says. Barto indicated she got a cold drink out of the refrigerator to put on her hand. None of the board members or staff expressed any concern over her injury or offered ice, she adds.  “I was hurting so bad,” Barto told ECM, adding that she is fearful to be around Rodrigues in the future.

An audio recording in the public foyer captures the sound of the door slamming and Barto exclaiming that Rodrigues had just shut the door on her arm. Barto is heard stating to Kruze that he had witnessed this, and Kruze replied, “Yes, I did.”  The recording has been turned over to police.

Kruze called ECM editor Miriam Raftery moments after the incident to inform Raftery that he had witnessed Rodrigues slam a door on Barto’s hand.  He confirmed that he believed this was intentional. Later Kruze stated, “I just couldn’t believe what I was seeing,” adding that he was standing “right behind” Barto when “Naomie Rodrigues used leverage to power through and slammed the door on Mrs. Barto’s hand.” He said Rodrigues’ face “looked very menacing,” adding that Rodrigues made eye contact with Barto. Kruze said he was “100% sure” the action as was not an accident.

Photo,left by Miriam Raftery: Naomie Rodrigues, during a CVUSD board meeting

Both Barto and Kruze say that after the injury, they went to the parking lot, where Kruze advised Barto to remove her ring because her injured right hand was swelling up and becoming discolored. Barto said it was difficult to remove the ring. She later noticed diamond chips missing and that the ring was no longer round, she told ECM. 

ECM’s editor spoke with Barto later that evening. Barto indicated she was in pain, icing her hand, and was having difficulty packing for a trip the next day with use of only one hand.  She told police she saw a doctor the next day and provided a medical report. She told ECM the doctor advised her to wear a brace and documented the bruising and swelling. She indicated she had a follow-up appointment planned after the holiday vacation out of state. On January 13, she told ECM, “It’s still sore at times…I can’t open my fingers without pain.”

Barto and Kruze both assert that Rodrigues, as well as CVUSD webmaster Howard Shen, followed them out to the parking lot after the altercation and took photos or video. Both say that Shen then made an obscene gesture toward them with his middle finger. Barto and Kruze are also heard on tape in the public parking lot voicing concern over being followed and photographed, then reacting in surprise to what was described as Shen allegedly flipping them off with his finger.

District responses

ECM's editor requested comments from Rodrigues, Miyashiro, and Shen. ECM also requested  public records any surveillance video as well as photos or videos taken by Rodrigues and Shen, including images that Barto claims were taken with a camera owned by the district. ECM’s request for photos/video reportedly taken by cameras held by Rodrigues and Shen was sent to another district representative, who indicated the district had no access to any such records.

Rodrigues acknowledged receiving ECM's email but did not provide comments on her alleged actions nor responses to ECM editor’s questions on the incident. She did, however, respond to ECM’s records request made in the same email. She stated that that area outside the door where the incident reportedly occurred is “not surveilled.” She added that no video was available of the parking lot, either, since “our system only retains 21 days of security footage” and ECM's request on January 13, 2020 for those records was made too late. 

Shen did not respond to ECM’s request to the district for comment.

Miyashiro, in an email sent to the governing board and the district’s attorney, Dan Shinoff, stated that the board would treat ECM’s email as a “complaint and investigate.”  He claims that he was “directly behind” Kruze and Barto “as we left the special board meeting to retrieve our lunch” and that therefore “I can attest with 100% certainty that there is no truth to this. The only aggressive/uncivil action was Trustee Barto screaming at Naomie, which you and several witnesses heard, and Trustee Barto shoving her way past me to enter Ed’s office where shew as not invited. Several staff were leaving the meeting at the same time and were witness to this as well.”

Photo, right, by Ken Stone: Superintendent David Miyashiro

Kruze has asked the district if it will enforce its civility standards which prohibit abusive conduct by staff. The district’s lawyer asked to interview Kruze, but Kruze declined due to prior retaliatory actions by some at the district over his reporting on district controversies. ECM’s editor indicated that our news report and a police report would document Kruze’s eyewitness account, however.

A history of conflicts 

Rodrigues has a history of reportedly uncooperative, inflammatory or hostile actions toward both Barto and Kruze, many of which were witnessed by others.This intensified after Barto became a whistleblower to ECM and spoke out repeatedly at board meetings, publicly voicing concerns over expenditures on travel and promotional videos, as well as a major building contract awarded in April 2019 to the son of the board’s president, Tamara Otero.  

Both Barto and ECM have reported problems obtaining some public records from Rodrigues via legal Public Records Act requests.  Rodrigues has refused or failed to provide names and spellings of speakers to ECM, a contract for the superintendent, travel costs and more. She also refused requests from both Barto and Raftery to correct factual errors in the minutes.

Rodrigues has turned out lights when Kruze was breaking down his audio or video equipment after meetings, according to Kruze and witnessed by others. Rodrigues  has also ordered ECM’s journalist Kruze and editor Raftery to move to a back row, where audio recordings would have been muffled and compromised  They did not comply, citing First Amendment rights.

Twice last year, ECM obtained legal help against the district to protect press freedoms and assure compliance with state law and the U.S. Constitution.

Calaware’s general counsel Terry Francke sent a letter on ECM’s behalf to obtain audio recordings including a December 2018 meeting recording that the district had initially claimed was not retained despite ECM’s request made in writing just one day after the meeting. The district ultimately produced the audiotape to Calaware’s attorney in response to his legal demand, but denied wrongdoing. Rodrigues later claimed she had earlier advised Kruze he could come in and listen to the audio, but Kruze denied receiving such communication.

Second, San Diego attorney Cory Briggs , who specializes in government affairs, issued a cease and desist letter on behalf of ECM after the district threatened to arrest Kruze for quietly recording public meetings in the front row across from the dais, using a small digital device approximately the size of a cell phone. Briggs called the district’s conduct “flatly illegal.” ECM began making recordings of meetings due to repeated difficulties obtaining audios of public meetings, including an early March meeting for which we were never able to obtain audio due to what the district claimed were “technical difficulties.”

ECM  continued recording meetings after receiving complaints of inaccurate minutes that omitted some comments by Barto, including an allegation that Rodrigues was opening her mail, remarks by the public critical of the district on test scores, and full remarks read into the public record by Raftery regarding the cease and desist letter from Briggs.

On August 8, Rodrigues sent an email to Kruze using his legal name (despite repeated requests to refer to his professional name used throughout his career.)  Kruze received death threats last year relative to his investigative reporting of former El Cajon Councilman Ben Kalasho. He also actively volunteers with his church’s prison ministry. Knowing  of these legitimate concerns for privacy to protect Kruze’s safety, Rodrigues nonetheless sent copies of the e-mail  containing his real name and statements described by Kruze as defamatory to the Superintendent, board members, and multiple CVUSD employees. She also sent the e-mail to the administration of the El Cajon Police, the San Diego Sheriff, the San Diego Police Department Human Resources office that issues press passes, the San Diego Press Club, which presented an award to Kruze for his series of articles on Kalasho, the San Diego County Office of Education, Music Watson, and Tom Jones, investigative producer at NBC San Diego and president of the San Diego Chapter of the Society of Professional Journalists, which has also honored Kruze and ECM for their reporting.

In her email, Rodrigues accused Kruze of “hostile, rude, aggressive, demanding, taunting, and condescending” interactions with no specifics listed. She accused him, without evidence, of “stalking” social media accounts” of people in the district and posting “false comments” about coworkers.

She further stated, “Given the current domestic terrorism in our country, your behavior both in person and online concern me.  You have now created a potential workplace violence issue for me and my co-workers,” she claimed without any evidence of any indication of violence or threats.  Nonetheless she claimed she fears potential “harm to individuals” and demanded that Kruze “stay away from me” (complying with that would prevent him from covering board meetings) and not address her other than via email – even though her job requires her to interact with anyone at public meetings who may need assistance, records, questions answered, or wish to address the board.

ECMs editor responded with an email indicating Rodrigues’ remarks were “false, defamatory, libelous and clearly retaliatory and meant to intimidate our reporter” and cited concerns over prior actions of Rodrigues. Kruze had earlier indicated that Rodrigues called him a “weirdo” and used foul language toward him because he insisted on sitting outside a closed-door board meeting to request a report after the meeting, as the law allows. 

Yet Rodrigues doubled down in January with yet another mass e-mail, listing Kruze’s legal name. Kruze wrote to Rodrigues in response:

1. Please stop using and disseminating my legal name in any of your communications to me. Mrs. Raftery, East County Magazine's editor and publisher, several weeks ago when she communicating with Mr. Shinoff on another matter was advised for you to cease and desist from this behavior.

You are violating my right to privacy.

Stop it.

I am involved with a regular outside endeavor that necessitates me to be vigilant on keeping my personal information private. Everyone on this e-mail distribution list has the equal expectation to a right of privacy. *

Please respect this request.

I will not repeat this admonition."

In response, Rodrigues flatly stated, “I will continue using both names until you correct the name on the Google account" referring to a personal account. She contended that  if Kruze was i"in danger as you claim, you would think that would be the first thing you would change to protect your identity."

Kruze files claim against district alleging false and harmful statements

As a result, on February 4, Kruze, on his own accord, sent the district a government claim form. It states that Rodrigues on Aug. 8 and again on January 20 “utilizing District assets did maliciously and intentionally send an email to colleagues and employers with factual claims and accusations that were false and not privileged.” Kruze contends the district is liable for her actions utilizing District resources “in making the publication that she and her superiors knew or should have known were false and harmful.”

Photo, right: Paul Kruze, courtesy of Paul Kruze

District’s lawyer threatens ECM, demands retractions of true statements, and tries to suppress news coverage of alleged injury incident

Five days later, on February 10, the district’s law firm, Artiano Shinoff, fired back a letter to Kruze and Raftery demanding retraction of what it called “factually incorrect” statements in articles and correspondence. Regarding the alleged hand-slamming injury, the lawyer’s letter claims “the only aggressive behavior that day as from Ms.Barto,” a statement that is disputed by the photos of Barto’s injured hand, the eyewitness account of our reporter, police and medical reports, as well as the audio recording.

The attorney’s letter further claims that our article back on June 2019 was incorrect in citing the district’s “purported destruction” of the December 2018 recording after 30 days, despite our records request made just one day after that meeting. The letter notes that our article included the recording. However the letter fails to mention that it took a letter from Californians Aware (Calaware) General Counsel for the district to produce that audio which we were informed via email in early February no longer existed  Rodrigues later claimed she sent a  prior email offering to hold the audio at the district office, suggesting it may have gone to a spam folder.

The district accused ECM in its letter of “falsely” claiming Rodrigues has ignored some public records act requests, despite the fact that there are numerous emails documenting repeated requests for specific records, some of which were never fulfilled weeks or even months after initial requests.

The district calls a statement by Kruze indicating that Rodrigues changed the board’s adopted policy on how to handle recordings “false and malicious.”  However, it is the district’s claim that is false.  

On March 26, 2019 after our dispute over audio recordings and similar difficulties also reported by Barto who told us she was denied recordings that she had requested, the board voted to extend its retention of audio recordings of board meetings for a full year and also to make them available to the public for one year.

This recording makes clear that the board discussed various options and that immediately prior to that vote, the chair announced that they were voting on both retaining records for  a year and making them available to the public for a year. Yet on June 6, 2019, Rodrigues emailed Barto stating, “Recordings are available on CD for only 30 days after each board meeting.”  Rodrigues also denied a request for a recording of an April meeting made over a month later by ECM because our editor was on vacation, claiming the policy was still to turn over recordings only for 30 days to the public, in direct contradiction to the  March 28 vote.

Rodrigues is also the person customarily responsible for preparing board minutes, and in the minutes of the March 26, 2019 meeting, there is an incorrect statement in the “

motions and voting” section of the minutes which claims Barto offered an amendment to limit public access to just 30 days. The audio of the meeting clearly indicates this is not true, and Barto has confirmed via phone on Feb. 16, 2020 that she never introduced any such amendment and that the statement in the minutes is false.  ECM’s editor and reporter were present and at the meeting and were satisfied that the concerns they had raised about inadequate public access to meeting tapes had been satisfied by extending the time period from 30 days to a year.

The Feb. 10, 2020 email from the district’s lawyer, Dan Shinoff, further demanded that ECM cease and desist publishing any “false, misleading and defamatory statements about Ms. Rodrigues” and retract all “false” claims “including your claim that Ms. Rodrigues assaulted Ms. Barto.”

ECM stands by its coverage

ECM has never published any false, misleading or defamatory statements regarding Rodrigues, so there is nothing to retract.

ECM did not publish anything about the alleged assault on ECM's news site until today, referencing the incident only in emails to district representatives from whom we sought comments or records, or responding to the district’s lawyer. While we are describing the incident and reported injury of Barto in our article as an “alleged” assault, we have no reason to doubt the credibility of our award-winning reporter who was an eyewitness to what he believes was a physical attack on Barto. Nor has the district offered any other credible explanation for how Ms. Barto wound up leaving the district office with a bruised and swollen hand.

El Cajon Police Dept. is currently investigating the alleged incident, which could potentially be charged as an assault or battery.

Photo, left: Paul Kruze and Miriam Raftery with 2018 Gloria Penner Award for political reporting, a special award presented by the Society of Professional Journalists, San Diego.

The letter from the district’s lawyer demanded a response in writing by Feb. 20, 2020 from ECM and threatened legal action otherwise.

ECM's editor has informed the district’s legal team that prior restraint (attempting to prevent publication of a news article) violates the First Amendment,  that any retaliatory action would be viewed as a SLAPP suit subject to an anti-SLAPP motion, and that we stand by our reporting on our news site.

According to the Reporters Committee for Freedom of the Press, “Anti-SLAPP laws are intended to prevent people from using courts, and potential threats of a lawsuit, to intimidate people who are exercising their First Amendment rights. In terms of reporting, news organizations and individual journalists can use anti-SLAPP statutes to protect themselves from the financial threat of a groundless defamation case brought by a subject of an enterprise or investigative story. Under most anti-SLAPP statutes, the person sued makes a motion to strike the case because it involves speech on a matter of public concern.” If the district cannot show evidence that it is likely to win in a lawsuit, ECM could collect attorney’s fees from the district under California’s anti-SLAPP law, the Digital Media Law Project reports.

District also threatned San Diego's NBC 7; TV station stands by its reporting

ECM has learned that a second local media outlet, San Diego's NBC 7, received a similar letter from attorney Shinoff in January accusing the station of “slander and libel” over the TV station’s November reporting on Barto’s lawsuit against the school district.  NBC 7 reports on the legal threat in a new story aired today on Miyashiro’s contract renewal and hefty pay raise.

According to NBC 7, Shinoff’s letter “failed to identify any inaccuracies or defamatory information. NBC 7 Investigates stands by its reporting.”

More efforts to silence Barto

This is not the first time that that the district or district personnel have attempted heavy-handed retaliation against whistleblowers or those who report concerns.

Barto has served on the CVUSD for 25 years. In late 2018, parent Mark Robak spoke at a district meeting to voice concerns over multiple schools in the district failing state standards. At the same meeting, a consultant hired by the district reported, as did a Grand Jury report, that the district should take steps to improve security to protect children against mass shootings.

During 2019, Barto grew increasingly concerned about over $600,000 dollars spent on promotional videos by the district in recent years, support of the World of Work program, as well as global travel by the superintendent and other district representatives documented by NBC 7, all at a time when academic standards were failing state requirements in math and English at some schools for the second (and now third) year in a row, according to the Dashboard testing. (The district has since claimed that much of the travel costs were paid by sources other than the district.)  Barto also drew criticism from allies of the board for speaking with the media and for criticizing board chair Tamara Otero for not disclosing that her son was the owner of a contracting company that received a lucrative contract.

At an open board meeting in early May, CEA union leader Mark Reagles threatened during public comments to “mount a recall” against Barto, as this recording documents. Later, on May 28, Reagles flatly denied what he had said, stating “I didn’t say I was recalling,” then doubled down with a new threat to remove Barto that he would “damned” well find someone to run against her in the next election. He repeatedly used profanity, at one point addressing Barto directly at the dais, “You brought this shit show here,” then called her a clown, despite children being present, as ECM reported and documented on audiotape.  Otero did nothing to stop Reagles’ abusive language.

Photo, right by Miriam Raftery: Mark Reagles berating Barto in a public meeting.

The district’s webmaster, Howard Shen, also testified, slamming Barto as “vindictive” for speaking to media about her concerns. He called her a “rotten apple posting misinformation” and denounced her as “deplorable, shameful, divisive and not fit to serve,” adding, “We don’t want you here.”

Barto’s husband, Duane, a CSEA member and district employee, criticized Reagles as a “sell out” aloud during the meeting after Reagles spoke.  Later Shen and Barto stepped outside and had a reportedly heated exchange.

Ironically, given the verbally abusive language used by Reagles and Shen against Barto in the public meeting, Reagles and Shen subsequently tried to get a temporary restraining order against Barto, her husband, and Duane’s 80—year-old father, claiming “intimidation and harassment.” 

Judge Roger Krauel denied the temporary restraining order and found “no violence, no threats.” The judge wrote pointedly, “Being out of order is not workplace violence!” Although the judge set a hearing, the request for the hearing was subsequently withdrawn.

Barto’s federal lawsuit against the district filed in late November by attorney MIke Aguirre, former San Diego City Attorney, claims that the Superintendent and four other board members have “retaliated against Plaintiff and conspired against her in violation of her First Amendment rights under the United States Constitution, adding, “Defendant’s retaliatory conduct has repeatedly tried to prevent Plaintiff from fully representing the constituents that elected her to the Board.”

Barto also alleges in her suit that Miyashiro expressly prohibited her from contacting district employees directly and prohibited her from using her CalCard (a credit card issued to each Board member to make purchases when conducting District business) to pay for a ticket to an event put on by El Cajon Mayor Bill Wells. Miyashiro last month canceled her “CalCard.” Barto has also been barred from closed-door meetings and banned from attending an education conference slated for San Diego in December in her capacity as a board member.

The district’s countersuit alleges that in 2019, the District received a complaint from an employee alleging that Barto was harassing her and “created a hostile work environment.” It also states that the Board of Trustees formed an Ad Hoc Committee to investigate the employee’s complaint. The countersuit does not name the employee, however Barto has previously indicated that Rodrigues complained of feeling harassed when asked by Barto to fulfil ordinary duties such as providing public records, information on board agenda items, and correcting errors in minutes.

The countersuit further accuses Barto of disclosing information learned during closed-door board sessions, taking district owned pens and batteries, inaccurately reporting income on her Form 700, serving as a witness for of individuals suing the district and appearing as an advocate for parents with positions adverse to the district.

Barto told ECM that the district’s countersuit is “retaliatory and without merit,” adding that she looks forward to providing evidence in court. 

ECM Editor Miriam Raftery statement

ECM has no wish to cause harm to Ms. Rodrigues’ reputation, or anyone else’s. Our responsibility is to publish truth when reporting news in the public interest regarding actions, issues, or allegations involving public officials, agencies, or public employees.

 As a news organization, ECM has a reputation of professionalism in our 11 years covering the many boards and commissions that this news outlet has reported on regularly across East County and the San Diego region. No other agency has ever subjected our reporting team to the repeated stonewalling, insults, intimidation, harassment, smearing of reputations, and threats endured  by our journalist and editor during coverage of the CVUSD.

ECM has also reported positive stories on district activities including some programs that have drawn praise, budget, awards, and more. This media outlet will continue to cover news about this district as merited by the actions of the district, its elected officials, superintendent and personnel, and by input received from parents, teachers, and taxpayers in the communities that the district serves.    

 Transparency and accountability should be goals of all public agencies. ECM encourages the Cajon Valley Union School District to abide by its agreement to turn over audiotapes to the press and public for up to one year when asked, and to allow access online or via email to audio recordings in order to reduce the need for in-person contact with Rodrigues. 

ECM also encourages the district to urge its staff members to treat members of the media with respect, to cease efforts to threaten, intimidate,  or endanger media members, to cease disseminating libelous or defamatory statements regarding ECM and ECM journalists, and to hold accountable any CVUSD staff member if they are found to violate the district’s code of conduct, criminal statutes, state or local laws, and/or ethical standards.