OEA lawyer Tom Doyle's January 2006 email informing me that ALJ Andrea Sloan is cancelling my hearing at the last minute to consider the "state's" (TSPC director Vickie Chamberlain's) motion to have "certain facts accepted as true."
Letter to Robert E. Jones, U. S. District Court, telling him about my frustration in finding an advocate after the OEA lawyer and representatives of the state's education bureaucracy had manipulated my case for several years.
September 10, 2007
Hon. Robert E. Jones
Portland Divisional Office
Mark Hatfield US Courthouse
1000 SW Third Avenue
Portland, OR 97204
Today is the deadline you assigned me to have an attorney contact your court about my case. I apologize that one has not done so. It is not my intention to waste your time. Be assured I harbor no illusions of going into a courtroom before you and arguing my position. I have made decisions without adequate council for some time, and I recognize that some of those decisions have been poorly made. I just need more time to find someone who will accept a complicated case and who can work within my resources.
I have already informed you that I have been misrepresented by Mr. Doyle. When he persuaded me to hire him in a civil suit while representing my union in other cases, he had conflicting interests. As a result of this breach of trust, I have been deprived of due process of law by individuals representing Oregon’s Department of Education. Mr. Doyle has been paid tens of thousands of dollars by my union for his part in my ordeal, a union with close ties to some Beaverton district personnel.
Last month, after over three years of harassment, Victoria Chamberlain, director of the Oregon Teacher Standards and Practices Commission, suspended my license to teach in Oregon. Documents in my possession demonstrate that Ms. Chamberlain does business frequently with Mr. Doyle, as well as with Mr. Doyle’s employers at the Oregon Education Association and some of the administrators from the Beaverton Schools.
I am mailing to Ms. Shultz’s office a packet of official documents, presented in support of my argument that Mr. Doyle has behaved in bad faith in his representation of me before your court. If these documents serve the unintended purpose of informing law enforcement officials about the challenges Oregon’s teachers face in accessing due process of law, I will be grateful.
I can produce evidence that I have been a good servant to my school and my community and did not deserve what has happened to me. I have an advanced degree and have worked with teenagers for twenty-five years in two languages. I never made more than forty-five thousand dollars a year…this is not about money. I would like to see the system improve.
In the month since you granted me an extension in my attorney search, I have logged about sixteen hours in different lawyers’ offices. I am hopeful that you will grant me more time in this process. It is difficult. I am eager to move past this but cannot give in to the injustice.
Thank you for your consideration.
P.S. Ms. Shultz will receive my package this week. I will send copies of this letter and those documents to the Beaverton superintendent.
Below, OEA attorney Tom Doyle is representing me in a conflict-of-interest civil suit in U.S. District Court.
Here he is explaining--in a hand-delivered message-- to Judge Jones how the (former) Beaverton School District lawyers misled him about deliberately withholding a settlement due me while the he tried to coerce me to sign "stipulations" to undocumented allegations for the state's licensing director.
BENNETT, HARTMAN, MORRIS & KAPLAN, LLP
ATTORNEYS AT LAW
ROBERT A. BENNETT (RETIRED)
GREGORY A. HARTMAN WWW.BENNETTHARTMAN.COM LINDA J. LARKIN*
MICHAEL J. MORRIS
111 S.W. FIFTH AVENUE, SUITE 1650
HENRY J. KAPLAN§
NELSON R. HALL PORTLAND, OREGON 97204-3627 * OF COUNSEL . ALSO MEMBER
THOMAS K. DOYLE.
(503) 227-4600 WASHINGTON BAR
ARUNA A. MASIH.
HEIDI K. BROWN FAX (503) 248-6800 § ALSO MEMBER
NEW YORK BAR
CHRISTINE N. MOORE
October 17, 2007
VIA HAND DELIVERY
Honorable Robert E. Jones
U.S. District Court
1000 SW Third Ave.
Portland, OR 97204
Re: Donald Bellairs v. Beaverton School District, et al
Case No. 3:04-CV-770
Our File No. 5407-2166
Dear Judge Jones:
I am writing to you in my capacity as an officer of the Court in regard to the above
referenced matter. The purpose of this letter is to correct a misstatement by defendant
Beaverton School District’s (BSD’s) counsel that this case is not settled because they
allegedly never received a settlement agreement signed by plaintiff Donald Bellairs.
As you know, you recently reinstated this civil case based upon the request of Mr.
Bellairs, who has been acting pro se for quite a while. To reflect that fact, you also recently
allowed my withdrawal as his attorney. Until that time, Mr. Bellairs was very clear that he
did not want me to represent him any longer in regard to this matter in any capacity.
However, since that time, I have been contacted by Mr. Bellairs, through a third party,
and have been authorized by Mr. Bellairs to raise the following issue with the Court on his
email to the lawyers asking if this case was settled. You sent that email in response to an
email sent directly by Mr. Bellairs to your assistant in late June 2007, wherein Mr. Bellairs
stated that the settlement was not completed because BSD's lawyers “have kept my
settlement money.” At that time, I was unable to speak to this issue without potentially
prejudicing my former client’s request to reinstate the case and had been directed by him to
have no contact with him.
Honorable Robert E. Jones
October 17, 2007
In response to your email, one of BSD’s lawyers, Jennifer Hungerford, wrote you an
email on July 12, 2007 stating that she “confirmed with [BSD] that no settlement agreement
was ever signed by Mr. Bellairs.” Also, in a July 5, 2007 email to you, Ms. Hungerford
admitted that BSD “was prepared to release the funds upon receipt of Mr. Bellairs’ signature
on an original copy of the agreement,” but claimed that BSD “was never provided an original
copy with Mr. Bellairs' signature.”
However, Ms. Hungerford’s statements about not receiving a release signed by Mr.
Bellairs are incorrect. Please find attached a copy of an April 6, 2006 fax sent by me to her
law partner, Linda Hungerford, with whom I negotiated the settlement, showing that Mr.
Bellairs and BSD’s representatives all signed the settlement agreement. In addition, the
original settlement agreement signed by Mr. Bellairs was sent to Linda Hungerford.
Therefore, this case is, in fact, settled. The only holdup is that BSD never sent Mr. Bellairs
the $40,000 it owes him pursuant to the terms of the signed settlement agreement.
It is my understanding that Linda Hungerford claims that the signed release is not
sufficient because Mr. Bellairs’ signature is not notarized. However, as you can see, Section
3.12 of the release contains an “entire agreement” clause stating that this “Settlement
contains the entire agreement between the parties hereto and the terms of this Settlement are
contractual and not mere recitals.” Nowhere in the entire agreement does it state that having
Mr. Bellairs’ signature notarized is a condition of the agreement.
Moreover, Linda Hungerford did not make notarization a condition of the settlement
when we settled the case on the telephone the day before the trial was set to begin in late
March 2006. In addition, I have never heard of notarization being a condition or a material
term of a settlement. I hope the Court will agree that this is not the common practice.
It is also my understanding that Linda Hungerford claims that Mr. Bellairs repudiated
the settlement agreement in various communications after he and BSD’s representatives
signed the release in April 2006. However, Mr. Bellairs’ alleged statements after he and
BSD’s representatives signed the release are irrelevant. In plain language, a deal is a deal
once it is signed by all parties, and Mr. Bellairs did not have the ability to repudiate the
release once it was signed by all parties. See Stroman v. West Coast Grocery Co., 884 F2d
458, 462-463 (9th Cir 1989) (in a civil employment action, holding that the court was
“satisfied that [plaintiff] Stroman’s release of ‘all claims’ against [defendant] West Coast
under the November 1, 1985, agreement was a deliberate, voluntary, and knowing waiver” of
his claims, and that “when he signed the agreement he waived all legal claims against West
Coast.”) (emphasis added).
In sum, Mr. Bellairs agreed to cancel the trial in March 2006 based upon this settlement.
As noted above, in her July 5, 2007 email to you, Ms. Hungerford admitted that BSD is
Honorable Robert E. Jones
October 17, 2007
"prepared to release the funds upon receipt of Mr. Bellairs' signature on an original copy of the
agreement." That occurred 18 months ago. Therefore, based upon this information, Mr. Bellairs
asks the Court to rule that this case is fully settled, to cancel the upcoming trial, and to require BSD to issue a check to Mr. Bellairs for $40,000 within the next 7 days.
BENNETT, HARTMAN, MORRIS & KAPLAN
Thomas K. Doyle
cc: Donald Bellairs
Jennifer Hungerford (via fax)
Rich Cohn-Lee (via fax)
Below are a series of email exchanges between Judge Robert. E. Jones, Jennifer Hungerford, Tom Doyle and Don Bellairs. Jones had been told that he was deceived about the settlement of a case before his court. The emails are posted in reverse chronological order.
Fw: Bellairs v. Beaverton School District, et al., Civil 04-770-JOFrom: Don Bellairs
Thursday, July 12, 2007 4:42:57 PM
To: cindy schultz Cindy_Schultz@ord.uscourts.gov
The information Ms. Hungerford now provides, were it true, would have been available to both her and Mr. Doyle when you first asked them about my case.
I will try have an attorney contact the court on my behalf as soon as is possible. The OEA lawyer has me in a deep hole.
Thank you for your patience. I am eager to meet. you.
From: Jennifer Hungerford email@example.com
Cc: firstname.lastname@example.org; email@example.com;
Tom Doyle firstname.lastname@example.org
Sent: Thursday, July 12, 2007 2:39:40 PM
Subject: Re: Bellairs v. Beaverton School District, et al., Civil 04-770-JO
This is to follow up on my earlier message. I confirmed with the School District that no settlement agreement was ever signed by Mr. Bellairs. After Mr. Bellairs refused to sign the original settlement agreement, a new agreement was negotiated, and although there were representations that it was agreeable to Mr. Bellairs and would be signed, it was not.
The Hungerford Law Firm
Direct line: 503-722-8612
From: Tom Doyle [mailto:email@example.com]
Sent: Monday, July 9, 2007 03:16 PM
Cc: firstname.lastname@example.org, email@example.com, 'Jennifer Hungerford'
Subject: RE: To Cindy Shultz--Judge Robert E. Jones' office Bellairs v. Beaverton School District, et al., Civil 04-770-JO
I no longer represent Mr. Bellairs. To my recollection, no settlement was put on the record.
From: Jennifer Hungerford [mailto:firstname.lastname@example.org]
Sent: Thursday, July 05, 2007 4:00 PM
Cc: Tom Doyle; email@example.com; firstname.lastname@example.org
Subject: Re: To Cindy Shultz--Judge Robert E. Jones' office Bellairs v.Beaverton School District, et al., Civil 04-770-JO
I was one of the attorneys representing Beaverton School District in this matter. It is my understanding that there was a settlement reached by the parties in March 2006. I do not believe that the terms of the settlement were made a matter of record. The Beaverton School District was prepared to release the funds upon the receipt of Mr. Bellairs' signature on an original copy of the agreement, but the District was never provided an original copy with Mr. Bellairs' signature. I believe that in the fall of 2006, Mr. Bellairs had direct discussions with the Beaverton School District (who now also employs in-house counsel). We have contacted the District and will provide the Court with further
information as soon as we receive it.
The Hungerford Law Firm
Direct line: 503-722-8612
Subject: Fw: To Cindy Shultz--Judge Robert E. Jones' office Bellairs v.Beaverton School District, et al., Civil 04-770-JO
Date: Tue, 3 Jul 2007 10:25:16 -0700
From: Judge Robert E. Jones
Please read the communication received from Donald Bellairs. If there was a settlement in this case, was it made a matter of record? If the case in fact has not settled, I will grant Mr. Bellairs 30 days to find a replacement lawyer, reopen the case without fees, and proceed to trial.
January 2005 Fax to OEA attorney Tom Doyle from TSPC director Vickie Chamberlain and former investigator Susan Nisbet, offering another set of "stipulations."
OEA attorney Tom Doyle arranging a postponement of TSPC hearing with ALJ Andrea Sloan in September 2005.
September 2004 letter from Susan Nisbet, former TSPC investigator, announcing impending investigation by the Oregon TSPC.
OEA attorney Tom Doyle's March 2004 letter to Hollis Lekas of the Beaverton School District administrator, announcing tort claim for impending civil suit in federal court.
November 2004 letter from OEA lawyer Tom Doyle to former Beaverton School District lawyer Jennifer Hungerford, announcing 1) a delay in the June FDAB hearing appeal and 2) the intention to depose Jerome Colonna, Mike Chamberlain and Malcolm Dennis of the Beaverton School District, in the civil litigation.
June 2007 letter from David Gerstenfeld, presiding Administrative Law Judge, explaining how ALJ Andrea Sloan's "first of its' kind" findings were legitimate (he is in error) and that the OEA's attorney. Tom Doyle, was representing me.
"First of its kind here in Oregon..."
Date: Tue, 31 Jan 2006 05:26:13 -0800 (PST)
From: "Don Bellairs"
Subject: Re: TSPC Case
To: "Tom Doyle" email@example.com
Take no action on my behalf.
Here is the memo I referred to on Friday. I was going to put it into a letter, but give your recent e-mail, I wanted to get it to you ASAP. I also received an e-mail from your brother asking me to "interface" with him regarding your case, so I am cc'ing him on this e-mail also. Per your instruction, I will not send out anything challenging the ALJ's decision until I receive a go ahead from you, although I will prepare it since if you decide to challenge the decision, I would like to do it ASAP after you make that decision.
I am writing pursuant to your request that I provide a more detailed explanation of the effect of the Administrative Law Judge’s recent ruling in your case. The TSPC had asked that the ALJ find that certain findings of fact from the FDAB decision be applied to the TSPC case. We countered that the FDAB decision could not preclude litigation of those issues for a number of reasons, including that it was an unreviewed decision. Unfortunately, the ALJ agreed with TSPC. This means that the judge will accept as true several allegations relating to alleged misconduct that we had hoped to contest at the TSPC hearing. At this point, we have several options to challenge this decision. Our choice as to which option to pursue is influenced by tactical considerations relating to the pending Court of Appeal’s case. Specifically, it may be of some value to move the TPSC case forward quickly to obtain a decision before the Court of Appeals issues a decision. This is true because one of our strongest arguments against preclusion is that FDAB decision is unreviewed at this time. However, a challenge to the ALJ’s decision will slow the time for having a hearing. Therefore, when reviewing these options we must consider the effect of the timing of these decisions. The balance of this letter is to review those options.
First, we can appeal this decision to the Chief Administrative Law Judge. The Chief ALJ can review the decisions of subordinate ALJ’s. I think in light of the fact that our current ALJ rendered a decision inconsistent with a Federal Judge on this same issue, that we have a chance of success going this route. It is likely, but not certain, that we will have to reset the currently set hearing if we are appeal this decision.
Second, from the Chief ALJ, we can appeal to the Commission. It is unlikely that the Commission itself will reverse the ALJ’s decision, so this route is unlikely to result in an change in the current posture of this case. Arguably though it is prerequisite to our third option, below.
Third, we may file what is called an interlocutory appeal to the Court of Appeal from the Chief ALJ’s or the Agency’s decision, if it is adverse to us. The court’s granting of such a petition is unlikely, but this is an important issue that may be of interest to some court of appeals judges.
Fourth, we can do nothing in terms of a direct appeal of the ALJ’s decision, and proceed with the TSPC hearing. We would then make our challenge to this decision part of any appeal on the merits, if the ALJ rules against us on the merits. The advantage to this position is that it moves the case forward potentially ahead of the Court of Appeals decision on the FDAB case, thus strengthening our case on any TSPC appeal. Of course, though, the Court could issue a decision this week affirming the FDAB decision, in which case, the strength of any challenge to a TSPC case will be weakened.
Ultimately, the question is as follows: do we challenge the decision now or do we include any such challenge in any appeal to an adverse TSPC decision? There are advantages and disadvantages to both directions. Would we prefer to know definitively the "lay of the land" on the TSPC hearing before the hearing? Certainly. However, there are tactical advantages to proceeding with the hearing and making the preclusion issue a cornerstone of any appeal. In any such appeal though, if the Court of Appeals affirms the FDAB in the meantime, then it is likely that the court will not find the preclusion finding by this ALJ to be reversible error. Given that fact, it makes the most sense to challenge this ALJ’s decision now through steps one through three above. At this point, an appeal the Chief ALJ has the highest likelihood of obtaining reversal of the ALJ’s decision. Appeal to the Agency and the Court would be the next steps. We are prepare to file such an appeal immediately if this is your wish.
Finally, we should talk about possible settlement. As you remember, over a year ago, the Commission was willing to settle this matter for a reprimand, probation, and an agreement to go through an alcohol evaluation and follow-up treatment. You rejected that offer. Again this past December, the Commission was willing to enter into the same agreement. However, you rejected that offer also. It is possible that Commission will be willing to enter into the same agreement now, although in December they said that that was your last time they would make an offer of that level of sanction. With your authority, we can broach the subject again, although we would have to be willing to sign off on the exact offer they gave us before. However, part of the reason you rejected that offer was that it would have a prejudicial effect on a related piece of litigation you have pending in Federal Court. At this time, entering into this stipulation would still have a negative consequences on the Federal lawsuit, which is scheduled for trial in March.
In sum, I know the ALJ’s decision is unfortunate. It is the first of its kind here in Oregon and must be challenged through some route. The question is, what method of challenging this decision is in your best interest as a tactical matter. There are a number of matters to take into consideration: the effect of the FDAB decision on the TSPC matter, the effect of the TSPC matter on your federal case, and the effect of Federal litigation on those administrative proceedings. I hope this memo provides a certain level of clarity on those considerations. In the end, my gut says to challenge the decision now.
From: Don Bellairs [mailto:firstname.lastname@example.org]
Sent: Saturday, January 28, 2006 9:07 PM
To: Tom Doyle
Subject: No further action
Do not act further on my behalf until we have had a chance to meet. Do not appeal actions or send documents that represent me.
I haven't forgotten about you, I'm just trying to be thorough in my e-mail/letter explaining the decision.
Should have something by Monday.