Paul Coggins Report on DISD Superintendent Mike Miles 9.6.2013

7/22/2019 Paul Coggins Report on DISD Superintendent Mike Miles 9.6.2013

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IN RE DALLAS INDEPENDENT

SCHOOL DISTRICT:INVESTIGATION REGARDING

PRELIMINARY OPR REPORT NO. 11335

Presented by:

Paul CogginsKip Mendrygal

Amanda BurchamLOCKE LORD LLP

2200 Ross Ave., Ste. 2200Dallas, TX 75201

Nicole TaylorTHE TAYLORLAW FIRM,P.C.

610 Uptown Blvd., Ste. 2000Cedar Hill, TX 75104

Confidential and Privileged


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SCOPE OF INVESTIGATION

The Dallas Independent School District (Dallas ISD or the District) engaged Locke

Lord LLP (the Firm) to investigate: (1) the allegations and subject matter set forth in the

preliminary OPR report for case number 113351; (2) the Districts employment relationship with

Rebecca Rodriguez, focusing on the validity of any complaints about Superintendent Miles

and/or the District; and (3) whether any District policies or regulations and/or the terms of

Superintendent Miles employment contract were violated in connection with facts we

discovered during our investigation.

Our investigation involved tasks including, but not limited to: (1) performing a

comprehensive review of the preliminary OPR report, along with the exhibits and supporting

documentation thereto; (2) conducting interviews of thirty persons with knowledge of relevant

facts (both District employees and others); (3) collecting and analyzing over 411,000 emails

from twenty-three District employees; (4) analyzing applicable Board policies and regulations,

ethical standards, and state law; and (5) analyzing Superintendent Miles employment contract

with the District.

Our investigative team consisted of three lawyers from Locke Lord LLP (Paul Coggins,

Kip Mendrygal, and Amanda Burcham) and Nicole Taylor of The Taylor Law Firm, P.C.

1See Report of Investigation, Case No. 11335, by the Dallas ISD Office of Professional Responsibility, attachedhereto as Tab 12.


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EXECUTIVE SUMMARY

The preliminary OPR report involved three overlapping subject matters. First, the report

contained facts and allegations regarding the possible violation and/or circumvention of Dallas

ISD procurement policies in connection with an RFP for Parent Engagement services (#TH-

204031). Second, there were allegations that Superintendent Miles bullied Rebecca Rodriguez

and treated her unprofessionally. Third, there was evidence of the possible obstruction of the

OPR investigation by Superintendent Miles.

We found no violations of any laws, civil or criminal. However, we determined that

Superintendent Miles violated Board policy DH (Local) and his employment contract on two

occasions by contacting witnesses and discussing facts relevant to the pending OPR

investigation.

This outside investigation would never have taken place if Superintendent Miles had

followed the advice given him by at least three District officials to allow the underlying OPR

investigation to go forward.

While the OPR investigation was ongoing, Don Smith (Chief Compliance Officer) told

Superintendent Miles that it did not appear the investigation would substantiate the allegations

and urged him to allow OPR to continue its investigation. Likewise, both General Counsel Jack

Elrod and Assistant General Counsel Lisa Ray advised Superintendent Miles to allow OPR to

complete its investigation.

Despite such sound advices, Superintendent Miles decided to suspend the OPR

investigation and order the Legal Department to take records gathered by OPR during its aborted

investigation. Even though no rule or regulation expressly permits or prohibits Superintendent

Miles from taking such action, for a target of an investigation to suspend the investigation raises


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troubling issues, and any damages to Superintendent Miles standing with the Board, the District

or the community at large were self-inflicted.

Our specific findings regarding each of the subjects raised by the preliminary OPR report,

as well as two additional subjects identified during the course of our investigation, are below.

Issue No. 1: Alleged Circumvention of District Policies Regarding RFP #TH-204031

We determined that the documents surrounding RFP #TH-204031, originally an RFP for

parent engagement and education services, are troubling on their face and could lead a

reasonable person to believe that a particular vendor, The Concilio, had been slated to receive a

contract prior to the issuance of the RFP. The documents show:

A relationship spanning several years between Dallas ISD and a parent engagementvendor named The Concilio. As part of this relationship, The Concilio offered to raisepart of the funds needed to pay for the services it provided to Dallas ISD.

Multiple meetings between The Concilio and high-ranking District employees wheredetails of the parent engagement portion of the Districts Imagine 2020 project werediscussed, such as which schools would receive the services and what services TheConcilio could provide. These meetings took place prior to the issuance of an RFP toselect the vendor(s) who would provide these services.

Conversations between high-ranking District employees and The Concilio resulted inThe Concilio making a cost proposal to Dallas ISD for parent engagement services thatwould become included in the parent engagement budget for the Imagine 2020 project.The cost proposal suggested a 50/50 funding split between the District and The Concilio.The cost proposal was made prior to the issuance of an RFP to select the vendor(s) whowould provide these services.

Emails indicating that (1) the District (and Superintendent Miles in particular) wanted tomove forward with The Concilio to perform the parent engagement activities inconnection with the Imagine 2020 project and (2) The Concilio believed that it had beenselected as the vendor to perform these services. These emails predated the issuance ofan RFP to select the vendor(s) who would provide these services.

An invitation to The Concilio (as the sole parent engagement vendor) to participate in aMarch 2013 RFP for contracted services.


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Issuance of a new RFP in May 2013 because The Concilio missed the deadline to applyfor the March 2013 RFP. It appears that the email inviting The Concilio to apply for theearlier RFP was misdirected due to a typo in the email address.

Involvement by high-ranking District employees, including Superintendent Miles, in an

eleventh-hour decision to pull the RFP from the June 13 board briefing agenda after itbecame clear that a vendor other than The Concilio had been designated as the solevendor for the parent engagement services contract.

Promising a contract to a vendor prior to issuing an RFP would not only undermine the

publics faith in the Districts procurement processes, essentially rendering the RFP process a

farce, but would also violate Board policy. However, for the reasons set forth below, we did not

identify any violations of Board policy committed by any District employee in connection with

this RFP.

Our conclusions regarding the allegations regarding Issue No. 1 are as follows:

Conclusion No. 1: We found insufficient evidence to conclude that there was fraud or

financial impropriety in connection with RFP #TH-204031.

If the District promised The Concilio a contract prior to the issuance of an RFP, it would

be a violation of Board policy CAA (Local), which prohibits fraud or financial impropriety in

connection with the procurement process.

The language, timing, and context of the documents surrounding RFP #TH-204031 raise

concerns, as do the timing and frequency of meetings between high-ranking District employees

and The Concilio leading up to the issuance of the RFP. However, we found insufficient

evidence to conclude that there was any fraud or financial impropriety in connection with the

parent engagement RFP in light of:

(1) the interviewees unanimous and unequivocal denials that a contract had beenpromised to The Concilio at any time;

(2) the absence of any evidence that any District employee had a financial interest in TheConcilio and/or the outcome of the RFP;


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(3) the interviewees plausible explanations for many of the troubling documents;

(4) our determination that there was no impropriety in connection with the drafting,issuance, or scoring of the vendors responses to the RFP;

(5) the fundamental defects in the documents sent to Board Services in connection withthe RFP, along with the lack of any supporting documentation on which the Board couldrely to make an informed decision; and

(6) the broad powers of Superintendent Miles to manage the procurement process,including the power to pull board agenda items for any proper purpose.

Conclusion No. 2: The Concilio violated Board policy CHE (Local) by meeting with an

individual Dallas ISD Board member.

On February 4, 2013, three representatives from The Concilio met with Trustee Mike

Morath. During the meeting, the parties discussed, inter alia, how The Concilio could better

navigate political issues with the Board. Although District officials arranged the meeting, Board

policy CHE (Local) states that it is a violation for a vendor to discuss business matters with an

individual Board member.

Conclusion No. 3: We found insufficient evidence to conclude that Superintendent Miles

violated Board policy by pulling the parent engagement RFP from the June 13, 2013

Board briefing agenda.

Despite the fact that the RFP was pulled from the Board briefing agenda shortly after

Superintendent Miles received a call from a District employee that the RFP was being awarded

to a vendor other than The Concilio, the board document had significant errors and lacked any

supporting documents on which the Board could reasonably decide how to vote. Moreover,

Board policy gives the Superintendent broad powers and discretion regarding procurement

matters, including the power to pull an item from a Board agenda for any proper reason.


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If Superintendent Miles pulled the RFP and included additional vendors based upon The

Concilios (1) actual or perceived political influence and/or (2) The Concilios promise to assist

the District with fundraising, that would violate Board policy CH (Legal). In light of the flaws

with the board document, as well as other relevant circumstances, we found insufficient evidence

to find a violation.

Issue No. 2: Allegations of Bullying/Unprofessional Conduct and Employee

Retaliation by Superintendent Miles

Our conclusions regarding the allegations of bullying/unprofessional conduct and

retaliation by Superintendent Miles are as follows:

Conclusion No. 1: We determined that the issue of bullying/unprofessional conduct

under DH (Local) was not substantiated.

Although the preliminary OPR report raises the possibility that Rodriguez had been

bullied, as defined and prohibited by Board policy DH (Local), Rodriguez informed us on more

than one occasion that she would not characterize the relevant interactions with Superintendent

Miles as bullying. The other witnesses to these conversations similarly declined to

characterize the interactions as bullying or unprofessional. Thus, we concluded this issue was

not substantiated.


retaliated against Rodriguez for reporting him to OPR.

Board policy DH (Local) prohibits retaliation against an employee who, in good

faith, makes a report, serves as a witness, or otherwise participates in an investigation.

Although the timing and circumstances of Rodriguezs departure from Dallas ISD raise the issue

of whether Superintendent Miles decided to terminate her because of her allegations about him to


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OPR, we found no direct evidence of retaliation. To the contrary, some evidence suggests that

Superintendent Miles made the initial decision to terminate Rodriguez prior to learning of her

allegations to OPR, and that his decision to terminate her was based in part upon his issues with

her actions during the June 13 board briefing.

Issue No. 3: Alleged Obstruction of an OPR Investigation by Superintendent Miles

The preliminary OPR report lays out facts suggesting that Superintendent Miles

obstructed an OPR investigation by contacting a witness about facts relevant to the investigation

while the investigation was pending. Our conclusions regarding this matter are as follows:

Conclusion No. 1: Superintendent Miles violated Board policy DH (Local) and his

employment contract on at least two occasions by contacting witnesses during an OPR

investigation.

On June 24, 2013, Superintendent Miles contacted Byron Sanders2, a witness to the

issues being investigated by OPR, and (1) alerted him to the pending OPR investigation and (2)

discussed facts relevant to the pending investigation. Superintendent Miles was aware of the

pending OPR investigation at the time of the contact, made the contact shortly before the witness

was contacted by OPR for an interview, and purported to refresh his recollection regarding their

June 12 phone call about the parent engagement RFP. This is a violation of Board policy DH

(Local), which prohibits conversations between witnesses about the facts of a pending OPR

investigation.

In addition, on June 22, 2013, Superintendent Miles sent his proposed written rebuttal to

Rodriguezs allegations to Justin Coppedge (Special Assistant to the Superintendent) and asked

2 Sanders is the Executive Director of the Dallas Education Foundation (DEF). The DEF is an entity that raisesmoney from outside sources in order to fund various projects at the District. From August 2012 to July 2013,Sanders was a District employee. In July 2013, he became an employee of DEF. Although he still maintains anoffice at the District and performs the same fundraising role as before, he is no longer a District employee.


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him to review it. The email was sent from Superintendent Miles personal email address to

Coppedges personal email address. Superintendent Miles drafted the written statement, which

set forth his position regarding the facts relevant to the OPR investigation. At the time

Superintendent Miles sent the email to Coppedge, both were aware of the pending OPR

investigation, and Superintendent Miles was aware that Coppedge was a witness to at least one

interaction between Rodriguez and Superintendent Miles. Superintendent Miles June 22 email

constitutes a second violation of DH (Local). Under the terms of his employment contract,

violations of Board policy constitute good cause for dismissal.

Conclusion No. 2: Superintendent Miles did not violate Board Policy DH (Local) by

failing to submit to an interview with OPR.

During its investigation, OPR asked Superintendent Miles to participate in an interview

about the allegations made by Rodriguez. Through General Counsel Jack Elrod, Superintendent

Miles declined to be interviewed and, instead, subsequently submitted an unsworn written

rebuttal to the General Counsels office.

Board policy DH (Local) requires all District employees to provide all relevant and

factual information about matters inquired. In the event an employee refuses to do so, Board

policy directs the employees supervisor to order the employee to cooperate. If the employee

still does not cooperate, disciplinary action can be taken.

Although Superintendent Miles declined OPRs interview request, his supervisor did not

direct him to participate, and the Trustees (Superintendent Miles de facto supervisors) became

aware of the decision to suspend the investigation at or near the time it was made. Moreover,

Superintendent Miles submitted to interviews with us during the course of our investigation and


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provided records (including personal emails and cell phone records) that we requested. Thus, we

do not believe that Board policy DH (Local) was violated in this case.

Conclusion No. 3: Superintendent Miles did not violate Board policy by suspending theOPR investigation into Rodriguezs allegations against him.

On June 26, 2013, Superintendent Miles ordered OPR to cease the investigation into

Rodriguezs allegations and to turn a copy of its investigative file over to the General Counsels

office. However, Superintendent Miles gave this directive after Board President Cowan sent

Superintendent Miles, Jack Elrod and Don Smith an email stating that the OPR investigation

would be suspended until attorneys could assess and resolve the potential conflict in having OPR

(a direct report to Superintendent Miles) investigate allegations about Superintendent Miles.

Two days later, the investigative files were returned in their entirety to OPR, and the

investigation was permitted to continue.

We could find no precedent for a Superintendent ordering the suspension of an OPR

investigation, nor could we find any Board policy permitting or prohibiting same. However,

because Board President Cowan was involved in, and implicitly approved, the decision to

suspend the investigation, at least temporarily, we concluded that the order did not violate Board

policy.

Issue No. 4: Other Potential Issues Raised During Our Investigation

Conclusion No. 1: Superintendent Miles may have violated the terms of his employment

contract by encouraging a District employee to disparage Board members.

During our investigation, we concluded that Superintendent Miles encouraged and

assisted Kevin Smelker, a former Cabinet member, in drafting a resignation letter that disparaged


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certain members of the Board. Smelkers resignation letter was subsequently leaked to the press

and resulted in negative publicity for the Board and positive publicity for Superintendent Miles.

If the Board concludes that Superintendent Miles participated in a plan to take advantage

of Smelkers resignation in order to generate negative publicity for the Board and positive

publicity for himself, such conduct may violate the provision of Superintendent Miles

employment contract that requires him to take steps to maintain an effective working

relationship with the Board.


prohibited Don Smith from discussing District operations with Dallas ISD Trustees.

During our investigation, Don Smith, the Head of OPR, alleged that Superintendent

Miles gave him multiple directives not to have any contact about District operations with Board

members. Board policy DGBA (Local) prohibits such a directive. However, Superintendent

Miles denies giving Smith this directive. Due to the absence of third-party witnesses to the

directive or other evidence corroborating the position of one party over the other, we do not find

a Board policy violation.

FACTUAL FINDINGS AND ANALYSIS OF POSSIBLE VIOLATIONS

I. Parent Engagement Services RFP

A. Summary of Background Facts

The crux of the allegations regarding the May 2013 RFP #TH-204031 for parent

engagement services is that one or more Dallas ISD employees may have violated procurement

rules, Board policy, or ethical guidelines by steering a contract to a particular vendor, The


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Concilio. As an introduction, the following dates and events are relevant to our analysis of this

issue.

September 2009 through September 2012: The Concilio performed parent education

services for Dallas ISD under a three-year contract that expired on September 24, 2012.

August 2012: The Concilio was awarded a separate contract with Dallas ISD to provideparent engagement services in an effort to increase first-day attendance and reducetruancy. District emails indicate that this arrangement was predicated, at least in part,upon The Concilios agreement to raise funds to defray the cost of its services to theDistrict. See Tab 18.

October through December 2012: The Concilio negotiated the terms of a $33,000contract to provide a 9-week PASE Program (parent education classes) in several DallasISD schools. This new contract was slated to go to the Board for approval in December

2012; however, Superintendent Miles delayed the request until 2013. To date, thecontract has not been presented to the Board. See Tabs 23, 24, 26.

October 24, 2012: The Concilios President and CEO, Florencia Fortner, met withByron Sanders to discuss outreach to African American families. Trustee Mike Morathwas invited to attend this meeting, but he was unavailable. See Tab 22.

December 6, 2012: Fortner again met with Sanders. See Tabs 25, 28.

February 4, 2013: Fortner (accompanied by Concilio Board members Bill Borus andAdriana Hammer) met with Sanders and Trustee Morath to discuss how The Conciliocould better serve African American families, thereby increasing its overall appeal toDallas ISD Board members. See Tab 33.

February 22, 2013: RFP #TH-203996 (Contracted Education Services) was issued.Many high-ranking District employees expected The Concilio to participate in (and beapproved for) this RFP.

February 27, 2013: Borus, Hammer and Fortner met with Superintendent Miles, Kerri Holt (SpecialProjects Officer, Teaching and Learning), Sanders, and Elsa Pennell (Director, Schooland Community Relations) to discuss the services The Concilio could provide theDistrict in the future, with particular focus on the needs of the Imagine 2020 project.See Tabs 34, 35.

Fortner emailed Pennell, Holt, and Superintendent Miles a copy of a cost proposalfor The Concilio to perform parent education and engagement services for theImagine 2020 project. See Tab 36.


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March 8, 2013: Rebecca Rodriguez was hired as Chief of Communications for DallasISD, and became part of Superintendent Miles Cabinet.

March 20, 2013: The Concilio missed the deadline to apply for RFP #TH-203996 (theMarch RFP). Although the RFP was publicly advertised, The Concilio was the only

parent engagement vendor personally invited to participate. However, the email to TheConcilio contained a typo and was never received. See Tabs 46, 48.

April 3, 2013: Fortner emailed Superintendent Miles, Holt, Sanders, and Pennell,among others, announcing a name change for their organization and stating that:

[W]e are ready to begin work at the Dallas ISD strategic feeder patterns andany other feeder patterns in need. We talked at our meeting about our proposalbeing presented to the Dallas ISD trustees at the May meeting. What else doyou need from us to make this happen?

We are extremely excited about serving Dallas ISD families and partneringwith you to achieve the much needed 2020 goals in your plan.

See Tab 43.

April 23, 2013: Based upon conversations with The Concilio, Sanders emailed severalhigh-ranking District employees an explanation for why The Concilio missed thedeadline to apply for RFP #TH-203996 through no fault of its own. See Tab 49.

April 24, 2013: Jerome Oberlton (then the Chief of Staff) forwarded Sanders April 23 email toRene Barajas (then the Chief Financial Officer) and Holt. See Tabs 49.

Holt responded to Oberltons email by stating that:

I was in the original meeting with Elsa P, Mike M and The Concilio.Mike clearly indicated that he wanted to move forward with the plansdiscussed (first day of school initiative and some specific parent engagementactivities district wide as well as a specific plan for Imagine 2020 Schools).The Concilios proposal was very compelling for 2 reasons:

1. The Concilio has delivered the services in the past with great results.2. The Concilio offered to raise 1/2 of the funds required to deliver the

services.

Elsa was responsible for working with The Concilio through the process inorder to implement these plans for next school year.

See Tab 51.


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April 25, 2013: Oberlton forwarded the April 23 email from Sanders to Kimi Tate (Director,Procurement Services). Tate responded that Purchasing will be issuing an RFP forParental Initiatives to go to the August/September Board. See Tab 50.

Oberlton forwarded Tates April 25 response to Superintendent Miles, whoresponded Jerome, I need to talk about this today. See Tab 52.

May 5, 2013: At the direction of the Communications Department, Purchasing preparedand issued an RFP to solicit bids in order for the District to purchase parent engagementservices (RFP #TH-204031). See Tabs 13, 14.

May 20, 2013: The Concilio and four other vendors responded to RFP # TH-204031.See Tab 16.

May 22, 2013: The RFP review committee met and evaluated RFP #TH-204031. The

Concilio was ranked third by the committee, but advanced to second place after M/WBEpoints were added. See Tab 17.

May 24, 2013: MariCarmen Eroles (Coordinator, Marketing and Publications,Communications Services) attended an Imagine 2020 weekly meeting as a representativeof the Communications Department. After that meeting, Eroles, Holt, and Sandersdiscussed a budget document that showed The Concilio as the potential partner thatwould provide parent education and engagement services for the Imagine 2020 program,and that listed a $172,515 budget for the project. Eroles informed Sanders and Holt thatthe review committee had already met to evaluate the proposals and The Concilio was notthe top ranked vendor. Sanders and Holt asked several questions about the RFP,including when the results would be made public, but Eroles referred them to thePurchasing Department for answers. During the discussion about The Concilio and thestatus of the RFP, Holt referred to a budget document on the screen and told Eroles thatthis is the direction that Mike wants to go. 3

May 25, 2013: Holt relayed Eroles comments from May 24 to Superintendent Milesduring an Imagine 2020 planning meeting. Holt reported that Superintendent Milesstopped the meeting to call Pennell, and overheard him instruct Pennell that he wantedmultiple vendors approved through the May RFP process. Superintendent Miles does notrecall the conversation with either Holt or Pennell, and Pennell does not recall thisconversation with Superintendent Miles.

3 Eroles stated that she took Holts reference to this to mean The Concilio, and told Holt that a contract that largewould have to go through the RFP process and that she assumed Superintendent Miles would never ask an employeeto do something that would violate policy. See Eroles Affidavit behind Tab 91. Holt responded Of course not.During her interview, Holt told us that she meant this to refer to Superintendent Miles desire to have parentengagement be an important part of the Imagine 2020 project.


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June 3, 2013: Pennell and Rodriguez had a conversation about the parent engagement contract.Pennell said she suggested awarding the contract to multiple vendors, but thatRodriguez made the decision to award the contract to a single vendor (PracticalParent). Rodriguez stated that Pennell made the decision to award the contract to a

single vendor, and that she was never aware of a plan or option to award the contractto multiple vendors.

The board document awarding the parent engagement contract to one vendor,Practical Parent, was signed by Pennell, Rodriguez and Lee Simpson (Attorney, LegalServices). See Tab 62.

June 10, 2013: Byron Sanders approached Theresa Ferguson (Senior Buyer, Procurement Services),and inquired about the parent services RFP. During the conversation, Fergusonpointed out issues with the wording of the board document and told Sanders that

originally three organizations had been put forward by the review committee, butPennell changed the board document to award the contract to one vendor. Fergusontold Sanders that a vendor from McKinney was the winner, but The Concilio was oneof the three vendors originally slated to go to the Board before the document waschanged.

Sanders called Superintendent Miles and asked for a return call.

June 12, 2013: Superintendent Miles called Sanders back. Sanders told SuperintendentMiles that he believed Pennell had improperly changed the board document torecommend only one vendor, when earlier drafts had recommended multiple vendors tothe Board.4 Sanders recalls informing Superintendent Miles that The Concilio was notthe winner of the contract, but Superintendent Miles does not recall whether Sandersmentioned The Concilio.

June 12, 2013: After speaking with Sanders, Superintendent Miles called Pennell toconfirm what Sanders had told him. Pennell called Rodriguez, but was unable to reachher.

June 13, 2013 : At approximately 6:30 a.m., Sanders met with Denoris Harris (Director, BoardServices), asking him to remove the parent engagement services item from the Boardbriefing agenda.

At approximately 9:30 a.m., Pennell and Rodriguez met. Pennell informedRodriguez of the Superintendents decision to pull the agenda item.

4 Neither Sanders nor Superintendent Miles reviewed drafts of the board document prior to the June 12 conversation.


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At approximately 9:58 a.m., Rodriguez called OPR reporting her concerns regardingthe RFP process, among other issues.

At the Board briefing, Rodriguez deferred to Superintendent Miles and Pennellwhen the Board asked questions regarding the RFP agenda item.

After the Board briefing, Rodriguez had a conversation with Harris about what hadhappened at the briefing. Harris told Rodriguez that there was pressure to use TheConcilio last year and I guess we have to use them again this year.

B. Findings Regarding the Parent Engagement RFP

1. We did not identify any problems with the drafting, issuance, or scoring of

RFP #TH-204031.

As an initial matter, we found no problems in the scope or content of the RFP document

or in the manner it was publicly issued. RFP # TH-204031 was advertised on May 4 and May

11, 2013, in theDallas Morning News (see Tab 14), in accordance with Board Policy requiring

public notice once a week for at least two weeks prior to the deadline for receiving bids,

proposals, or responses to requests for qualifications. See Tab 6 (CH (Legal) at 3 of 14). The

document contained the same general terms, and followed the same general format, as most

requests for purchase issued by Purchasing. See Tab 13.

Further, we found nothing unusual or suspicious during the open RFP period. By the

RFPs May 20 deadline, five vendors had submitted written proposals in response: Practical

Parent Education, The Concilio, Family Leadership Inc., PEP IT UP, and Relevant Knowledge,

Inc. There was no evidence of any conversations between a vendor and anyone from the District

about the RFP between May 4 and May 20, 2013.

Likewise, the evaluation committee members did not report anything unusual occurring

in their review process. On May 22, the review committee met to evaluate the five responding

vendors proposals. All five committee members stated that they ranked the presentations based


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upon the objective criteria given and the vendors written proposals, and that no one attempted to

influence their judgment or manipulate their scoring in any way.

The scores among committee members were consistent from reviewer to reviewer. Each

reviewer ranked one vendor, Practical Parent Education, substantially above the other vendors.

Using the combined scores, a vendor named Family Leadership ranked second, and The

Concilio, third. The Concilio moved from third to second place after the M/WBE score was

determined and the vendors were re-ranked.See Tab 17.

Annie Holmes-Partee (Director, Minority Women Business Enterprises) scored this RFP.

During her interview, she explained her objective evaluation and M/WBE scoring of each of the

five vendors. We found no evidence of any wrongdoing in connection with the M/WBE scoring.

Significantly, the review committee was not responsible for picking the winner(s) of the

contract(s). The review committee was not informed how many vendors would be selected.

Instead, they simply scored the proposals according to the objective criteria given. The number

of vendors (i.e., single vs. multiple vendors) was to be determined by the end user of the

services, the Communications Department.

In sum, there is no evidence of wrongdoing in connection with the drafting, issuance, or

scoring of RFP #TH-204031.

2. Certain conversations and documents would lead a reasonable person to

believe that The Concilio had been slotted to receive a contract prior to

the issuance of an RFP.

There were conversations and documents leading up to the May 2013 parent engagement

RFP that would lead a reasonable person to conclude that The Concilio had been pre-selected to

receive the contract prior to the issuance of the RFP. The facts and documents of most concern

are discussed below.


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a. There were meetings between District officials and The Concilio wheredetails of the services were discussed.

Between July 2012 and February 2013, Superintendent Miles and other high-ranking

District employees had several discussions with The Concilio regarding the scope and details of

parent engagement services that would be part of the Imagine 2020 project5.

In July 2012, shortly after Superintendent Miles joined Dallas ISD, The Concilio had an

introductory meeting to inform him about the services they had performed, were performing, and

could perform for the District. See Tabs 19, 20.

Between October and December 2012, The Concilio negotiated with Pennell and Jennifer

Sprague (then the Chief of Communications) the terms of a $33,000 contract for The Concilio to

offer a 9-week PASE Program in certain Dallas ISD schools. See Tabs 23, 24. According to

District emails reviewed and interviews conducted, no RFP was required for this contract

because the amount was less than $50,000. The Purchasing and Communications Departments

planned to present this new contract to the Board for its approval in December 2012. See Tab

27. However, Superintendent Miles asked Sprague to wait until January 2013. See Tab 26.

Sprague resigned on December 21, and the contract has never been presented to the Board.

At the same time The Concilio was negotiating the PASE contract with the

Communications Department, it was also meeting with Sanders to discuss the services The

Concilio could provide under a grant6 Sanders was helping Dallas ISD apply for, as well as

whether The Concilio could provide first-day attendance services to certain Dallas ISD schools.

Sanders met with Fortner about various projects on or about October 4, October 24, and

5 Imagine 2020 project and Strategic Feeder Pattern are used herein interchangeably to refer to SuperintendentMiles vision for the District, including a parent engagement project that was being discussed with The Conciliobeginning in February 2013.

6 At that time, Sanders was helping Dallas ISD apply for a grant called Race to the Top. In December 2012,Dallas ISD learned that it did not win the grant.


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December 6, 2012. See Tabs 22, 25, 28. Trustee Mike Morath7 was invited to the October 24

meeting, but he could not attend. See Tab 22.

On February 27, 2013, Fortner, Borus, and Hammer met with Superintendent Miles at his

office. Holt and Pennell were also present.8

Sanders participated by telephone. See Tabs 34, 35.

The purpose of the meeting was to discuss the work The Concilio had provided in the past and

the services it could provide in the future, with particular focus on Superintendent Miles

Imagine 2020 campaign. District personnel mentioned the need for parent engagement services

in connection with the Strategic Feeder Pattern schools, and the plan to offer an RFP to select a

vendor to perform these services. According to the attendees, Superintendent Miles told The

Concilio to apply for the upcoming RFP. In this connection, Holt would later write:

I was in the original meeting with Elsa P, Mike M and The Concilio. Mikeclearly indicated that he wanted to move forward with the plans discussed (firstday of school initiative and some specific parent engagement activities districtwide as well as a specific plan for Imagine 2020 Schools).

See Tab 51.

Holt also described The Concilios proposal as very compelling because 1. The

Concilio has delivered the services in the past with great results. [and] 2. The Concilio offered to

raise 1/2 of the funds required to deliver the services. Finally, Holt stated that Elsa was

responsible for working with The Concilio through the process in order to implement these plans

for next school year. See Tab 51.

Holts April 24 email strongly suggests that Dallas ISD planned on The Concilio

performing the parent engagement services in connection with the Imagine 2020 project.

7 Trustee Moraths relationship with The Concilio goes back to at least the Summer of 2012. See, e.g., Tab 18. TheOctober 24 meeting was later rescheduled to February 4, 2013. See Tab 33.

8 Participants at the meeting recalled that Superintendent Miles was present for only the first part of the meeting,somewhere between five and thirty minutes. This was likely due to a heads up from his assistant, AndreaRodriguez, that The Concilio might be a District vendor.


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On April 3, Fortner emailed Superintendent Miles, Holt, Sanders, Pennell, and others

about a proposed name change for the organization. In the email, Fortner stated that:

We are ready to begin work at the Dallas ISD strategic feeder patterns and any

other feeder patterns in need. We talked at our meeting about our proposal beingpresented to the Dallas ISD trustees at the May meeting. What else do you needfrom us to make this happen? We are extremely excited about serving Dallas ISDfamilies and partnering with you to achieve the much needed 2020 goals in yourplan.

See Tab 43. Similarly, in a separate email on April 16, Fortner asked what we need to do to get

our contract ready to be submitted to Dallas ISD trustee board in May. See Tab 48.

Based upon the above emails, The Concilio appears to have been under the impression

that the District was moving ahead with its proposal to provide services for the Imagine 2020

project.

b. The Concilio presented a budget to Dallas ISD to perform the services,and the budget was included as the parent engagement budget for theImagine 2020 project.

During the February 27 meeting, details of the parent engagement project, including the

cost for The Concilio to perform the requested services, were discussed. Immediately after the

meeting, Fortner emailed cost information to Superintendent Miles, Pennell, Sanders, and Holt.

The Concilio proposed a cost of $16,430 per school, a number that represented 50% of the cost

to provide the services, and agreed to raise funds to cover the other half. See Tab 36.

The Concilios cost data presented on February 27 became the basis of the budget for

parent engagement for Imagine 2020. Within a day of the February 27 meeting, a Needs List

for Imagine 2020 was circulated, showing The Concilio as a potential partner and including

The Concilios cost estimate of $345,030 ($16,430 per school, 21 schools) and a statement about


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an agreement for The Concilio to fund half of the costs ($172,515), with the remainder to be paid

for by the District. See Tab 37.

The Concilios past work for the District including the back-to-school initiative in 2012

was likely awarded, in part, because of its promise to raise funds to defray the costs of services.

For example, in June 2012, Trustee Morath indicated that The Concilio and another vendor

would fundraise based upon commitments they get from the District. See Tab 18. Fortner

confirmed during her interview that part of The Concilios business model with the District has

been to pay for a percentage of its services through fundraising efforts.

A review of the Imagine 2020 budget and planning documents would lead a reasonable

person to conclude that The Concilio had been slotted to receive the contract for Imagine 2020 in

advance of the RFP process. Several interviewees who reviewed the February 28 Needs List

and other Imagine 2020 documents expressed concern about the documents because it appeared

that The Concilio had been selected in advance of the RFP. See, e.g., Tabs 37, 39, 40, 42, 56, 57.

c. After The Concilio missed the deadline for a March 2013 RFP, high-ranking District officials arranged for a second RFP to be opened.

After The Concilio missed9

the deadline to apply for the March 2013 RFP for Contracted

Educational Services10, a new RFP for parent engagement and education was opened to afford

The Concilio an opportunity to submit its proposal to the District.

9 While it is undisputed that the invitation sent to The Concilio by Purchasing personnel had a typo in the emailaddress and, thus, was never received, Pennell said that, during the February 27 meeting between District employeesand The Concilio, Fortner acknowledged her awareness of the pending March RFP. Thus, it is not clear whetherThe Concilio was unaware of the pending RFP, or rather believed it did not need to apply. See, e.g., Tab 48(including Fortners email of April 16, 2013).

10 The March 2013 RFP was a general RFP for a variety of contracted educational services. The Concilio wasapparently the only parent engagement vendor invited to apply.


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An email written in April by Sanders to Oberlton described why The Concilio failed to

participate in the March RFP and proposed a solution to prepare a new and separate RFP

specifically related to parent engagement services. Sanders email was forwarded to Tate,11

Rodriguez, and Superintendent Miles, among others. See Tabs 49-52. Sanders stated in his

email that I think it will be very important to ensure that whatever RFP is released, the district

needs to ensure that more than just The Concilio applies for it. See Tab 49.

Oberlton reportedly pressured the Purchasing Department to open an RFP for parent

engagement services soon after Sanders sent his April 23 email. Tate stated that Oberlton visited

the Department to ask whether an RFP was needed to hire The Concilio. Tate explained that an

RFP would be required. Oberlton then inquired whether an RFP could be issued in time to make

the June Board meeting.

After the conversation with Oberlton, Tate met with Ferguson to determine whether there

was enough time under the procurement rules to complete the RFP process in time to make the

June 2013 Board meeting. Oberlton indicated that his request was urgent, so Tate and Ferguson

stayed late at work to respond. Once it was determined a new RFP was possible, the two walked

immediately across the street to Oberltons office to inform him. See also Tab 53-55 (emails

updating Oberlton on the issuance of the parent services RFP).

d. High-ranking District officials inquired with Communications staffregarding the status of the RFP.

On Friday May 24, immediately after a weekly Imagine 2020 strategy meeting, Holt and

Sanders approached Eroles about the status of the parent engagement prong of the Imagine 2020

11 Tate was promoted to Executive Director of Purchasing on July 1, 2013.


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project.12 Eroles confirmed that an RFP had been issued and that the scoring was complete.

Eroles, Sanders, and Holt discussed that The Concilios proposal had not received the highest

score. Sanders asked when the results of the RFP would be made public, and noted that the

winning vendor would have to receive advance notice in order to hire staff to handle the project.

Eroles referred specific questions regarding the RFP to Purchasing personnel.

Eroles asked Sanders and Holt about a document shown during the strategy meeting that

identified The Concilio as the Districts potential partner for parent engagement services, and

that listed a $172,515 budget, with the other half to be raised by The Concilio. Eroles voiced

concerns about the document because it suggested The Concilio would be awarded the parent

engagement services contract, even though the RFP was still open and there had been no action

by the Board.

After the May 24 meeting, Eroles reported her conversation with Sanders and Holt to

Pennell and Rodriguez. Rodriguez then approached Superintendent Miles to express concerns

about the relationships between District employees and The Concilio. Superintendent Miles

suggested that Rodriguezs concerns were rooted in a dislike for Holt and, in reference to

documents mentioning The Concilio (including the document that Eroles had described to

Rodriguez) that sometimes things get messy. Superintendent Miles did not recall this

conversation with Rodriguez.

Holt informed us that, on May 25, she relayed Eroles comments about the parent

engagement RFP to Superintendent Miles during an Imagine 2020 planning meeting.13

Holt

stated that Superintendent Miles interrupted the Imagine 2020 meeting in order to call Pennell

12 The three participants to this conversation gave very different versions of what transpired.

13 Superintendent Miles did not recall this meeting although it was listed on his calendar. Superintendent Milesstated that he was not aware of the RFP review committees meeting or the outcome of their evaluation until thenight before the June 13 Board briefing.


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and instruct her that, when the results of the RFP were finalized, multiple vendors should be

included. Neither Superintendent Miles nor Pennell recall this telephone conversation.

e. After Superintendent Miles became aware that The Concilio was not beingawarded the contract, he pulled the RFP item from the June 13 Boardbriefing agenda.

On June 10, Sanders visited Ferguson to discuss an unrelated procurement. During the

conversation, Sanders inquired about the status of the parent engagement RFP. During a

discussion about the errors on the board document, Sanders was told that, on the original board

document, three vendors had been selected to receive the parent engagement contract but that

Pennell had changed the board document to include only one vendor. Ferguson told Sanders a

vendor from McKinney was the winner, but The Concilio was one of the three vendors originally

slated to go to the Board.

According to Sanders, alarm bells went off, and he immediately called Superintendent

Miles. Sanders did not reach Superintendent Miles, so he left a message requesting a return call.

Superintendent Miles did not call Sanders back until the evening of June 12.

During the June 12 call, Sanders reported to Superintendent Miles that only one vendor

had been selected to receive the parent engagement contract, and that it was not The Concilio.

Superintendent Miles then called Pennell to inquire why the change had been made and decided

to pull the RFP from the June 13 Board briefing agenda.

3. We found insufficient evidence to conclude that there was fraud or

financial impropriety in connection with RFP #TH-204031.

Board policy CAA (Local) prohibits any dishonest or fraudulent act regarding any

finances of the District. See Tab 5. Although the emails and conversations described above are


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troubling14, for the following reasons, we ultimately found no fraud or financial impropriety in

connection with RFP #TH-204031:

First, all of the individuals we interviewed unanimously and unequivocally denied that a

contract had been promised to The Concilio at any time.

Second, we did not find any evidence that any District employee had a financial interest

in The Concilio and/or a financial interest in the outcome of the RFP.

Third, the interviewees were able to offer plausible explanations for many of the

troubling documents. Holt and Sanders explained the March 2013 Imagine 2020 documents as

preliminary planning documents used to formulate a budget for the Imagine 2020 program in

connection with a June 2013 meeting. Those most involved in the Imagine 2020 project (i.e.,

Superintendent Miles, Holt, Sanders and Dr. Sylvia Reyna (Chief of School Leadership)), while

acknowledging that the documents had a troubling appearance, also explained that they were

only planning documents for the purposes of developing a budget for Imagine 2020, and that

the inclusion of The Concilios cost proposal was done to estimate the proposed parent

engagement budget to seek from the Board.

Fourth, we determined that there was no impropriety in connection with the drafting,

issuance, or scoring of the vendors responses to the RFP.

14 Rodriguez started with the District on March 8, 2013, and told us that, during her first three months on the job, shehad (1) heard about and been copied on emails about The Concilio missing an RFP deadline and solutions tosame; (2) heard complaints and concerns from her employees (Pennell and Eroles) about documents reflecting thatThe Concilio had been tabbed to receive a contract prior to the issuance of the RFP; (3) addressed these concernswith Superintendent Miles without resolution or satisfaction; and (4) been circumvented by Superintendent Mileswho instead contacted her subordinate to discuss pulling the RFP from the June Board briefing agenda. Rodriguezstated that her growing concerns about the relationship between certain District employees and The Concilio,exacerbated by Superintendent Miles decision to pull the RFP without consulting her, made her suspect that therewas foul play in the procurement process. As a result, on June 13 and 14, she contacted OPR and made a report.


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Fifth, under Board policy BJA (Legal), the Superintendent is given broad discretion to

manage the procurement process, including the power to pull board agenda items for any proper

purpose. See Tab 2.

4. We found no Board policy violation in Superintendent Miles decision topull the RFP from the June 13 Board briefing agenda.

Superintendent Miles decision to pull the May RFP and attendant board document from

the June 13 Board briefing agenda standing alone is not a violation of Board policy. The

Superintendent has the right and duty as administrative manager to supervise the purchasing

process. Board policy BJA (Legal) states that the duties of the Superintendent include, inter

alia:

Assuming administrative responsibility and leadership for the planning,organization, operation, supervision, and evaluation of the education programs,services, and facilities of the District,

Managing the day-to-day operations of the District as its administrativemanager, and

Preparing and submitting to the Board a proposed budget and administering thebudget.

See Tab 2 (BJA (Legal) at 1 of 2).

According to Superintendent Miles, he repeatedly directed that multiple parent-

engagement vendors participate in and be approved through the RFP process.15 Therefore,

Superintendent Miles stated that he decided to pull the item from the agenda because the

Communications Department was asking the Board to take action and authorize the District to

enter into a contract for parent education services with only one vendor, contrary to his prior

15 Superintendent Miles claimed that his directive throughout the planning of Imagine 2020 was for multiple vendorsto be selected. Holt told us that Superintendent Miles called Pennell on Saturday, May 25 to inform her of the needfor multiple vendors. Holt could only hear Superintendent Miles statements to Pennell. Holt reported that sheoverheard Superintendent Miles instruct Pennell to ensure that multiple vendors participate. Neither SuperintendentMiles nor Pennell recall this telephone conversation.


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directives. If Superintendent Miles pulled the RFP for this reason, it would not be a violation of

Board policy.16

Not only is it within the Superintendents authority to pull an agenda item, but here there

was sufficient cause to pull the proposed board document. First, the document contained errors

that occurred late in the drafting process when the recommendation went from multiple vendors

to one vendor, which went undetected by the Purchasing and Communications Departments.

The drafting errors rendered the document internally inconsistent, making it unclear whether one

or multiple vendors were approved in the course of the RFP process.17

Second, the agenda item was not submitted to Board Services with the proper supporting

documentation; namely, the review committees scoring and a letter of recommendation. The

lack of documentation caused confusion during the June 13 Board briefing, and resulted in the

Trustees requesting additional information.

Third, we could not determine who made the decision to select one vendor rather than

several or how it had been made. Compare Tabs 58-61 (emails discussing draft board

document(s)), with Tab 68 (final board document). Pennell said that Rodriguez selected

16 Coppedge provided a statement to OPR that, on June 14, Superintendent Miles explained his decision to pull theRFP from the agenda stating there is a political nature to the district that has to be considered and there is nothingwrong with approving vendors who have influence in the community. See Coppedges Affidavit behind Tab 91.According to Board Policy, political influence is not one of the factors that can be considered in awarding a contract.See Tab 6 (CH (Legal) at 2 of 14) (listing factors that can be considered in awarding a contract, and prohibitingconsideration of any other factors). Rodriguez had a similar recollection, but Superintendent Miles denied makingthis statement. In light of the substantial problems with the RFP documentation, we do not believe that there issufficient evidence to conclude that the RFP was pulled solely or even primarily because of The Concilios politicalinfluence.

17

The document is inconsistent on its face as to whether one or multiple vendors were being recommended to theBoard for approval. About halfway down the first page of the board document, it identified RecommendedVendor(s), referring the Board to [s]ee attached list of vendors. The attached second page identified multiplevendors: Practical Parent Education McKinney, TX; The Concilio, Dallas, TX; and, Family Leadership Fresno,California. These two provisions suggested that multiple vendors were being recommended to the Board by theCommunications Department. However, only Practical Parent Education is identified at the bottom of the first pageof the board document as the winner of the RFP, with the two other vendors being considered should the District beunable to reach a satisfactory contract with the winning vendor. The document had been drafted by Tim Holt, anemployee in the Purchasing Department, who had been with the District for less than a year at the time the documentwas drafted.


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Practical Parent against her advice that multiple vendors were needed to support the entire

District. Rodriguez said that Pennell decided on one vendor and that she was unaware of any

plan or possibility to select multiple vendors.

For these reasons, we do not believe that Board policy was violated based upon

Superintendent Miles decision to pull the RFP from the June 13 Board briefing agenda.

5. The Concilio violated Board policy by meeting with a Board Trustee

On or about February 4, 2013, Fortner, Lopez and Borus from The Concilio met with

Trustee Morath and Sanders. See Tab 33. Trustee Morath and Sanders discussed the possibility

of identifying an entity similar to The Concilio that would offer parent engagement services

tailored to the needs of African American families. Sanders and Trustee Morath told The

Concilio that there was concern among Dallas ISD Board members regarding whether The

Concilio could serve the entire District and that, in order to maximize its chances of navigating

the political issues with Board members, The Concilio should consider altering its image or

approach to reflect the diversity of the families in the District. It was suggested that an image of

increased diversity would make it easier for The Concilio to get approved by the Board in the

future.

At the February 4 meeting, The Concilios representatives responded that they already

served African American families as part of their business model, but that they would take the

suggestions seriously. A few months later, Superintendent Miles received an email from Fortner

regarding a proposed name change to reflect that The Concilio is inclusive of the student body

population it serves. See Tab 43.

Board policy CHE (Local) prohibits vendors conducting business with the District

from contact with individual Board members and requires Board members to report such contact


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to the Superintendent. See Tab 7 (CHE (Local) at 2 of 4). Conducting business is defined to

include participation in a pending procurement, the negotiation of any contract, the performance

of any contract, the selling of any product, and the performance of any service. See Tab 7.

On February 4, 2013, The Concilio was conducting business with the District.

Although its prior contracts had been performed, The Concilio was actively discussing the

performance of future work with the District. Beginning in early October 2012, The Concilio

began negotiating a $33,000 contract with the Communications Department to host a 9-week

PASE program (parent education) at 11 schools in the District. Originally, the Communications

and Purchasing Departments planned to present The Concilios new contract to the Board for

approval at the December 2012 Board meeting; however, Superintendent Miles asked Sprague to

move the contract discussions to the January 2013 meeting. See Tab 26.

The Concilio discussed both a 9-month and 9-week PASE program with District officials

at the February 27 meeting. Moreover, Sanders was engaged in active discussions with The

Concilio regarding services to be performed under the grant he was pursuing, as well as the

Imagine 2020 project. Therefore, The Concilio violated Board Policy CHE (Local) by meeting

with a Trustee while conducting business with the District.18

III. Rodriguezs Bullying and/or Retaliation Complaint to OPR

A. Summary of Factual Background

Rodriguez reported her concern that Superintendent Miles retaliated against her in the

aftermath of the June 13 Board briefing. The key dates and events are as follows:

Thursday, June 13: Rodriguez called OPR at 9:58 a.m. and reported to Don Smith herconcerns regarding Oberlton. Rodriguez also said that she believed she was being taken

18 A person or entity that violates CHE (Local) may have a pending bid or proposal rejected, be barred fromreceiving future contracts, and/or have an existing contract canceled. See Tab 7.


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out of the loop with the Superintendent and that he was going to vendors and othersubordinates in her department without consulting her first. The call was short becauseRodriguez said she had to attend the Board briefing. Rodriguez arranged to go to OPRthe following day.

Friday, June 14: Rodriguez met with OPR at length regarding RFP #TH-204031,among other issues. Several days later, Rodriguez supplemented her OPR report to addher fear of retaliation by Superintendent Miles in connection with the fallout after theBoard briefing. There were a series conversations that caused Rodriguez to fearretaliation:

First, on Tuesday, June 11, during a meeting with Justin Coppedge andSuperintendent Miles, the Superintendent and Rodriguez discussed thereorganization of the Communications Department. The meeting ended withSuperintendent Miles reminding Rodriguez that she was hired to follow theintent of the commander.

19

Second, on Friday, June 14, Rodriguez had two meetings scheduled withSuperintendent Miles. The first meeting included Lisa LeMaster (Owner, TheLeMaster Group Ltd.) to discuss LeMasters plan to reorganize theCommunications Department. Superintendent Miles allegedly told Rodriguezthat he expected Rodriguez and other Cabinet members to cut themselves andbleed for the Superintendent.

After the second meeting scheduled on June 14, Superintendent Miles askedRodriguez to stay behind and talk about the Board briefing. Superintendent Milesbecame angry and aggressive and, according to Rodriguez, said I hired you totake a bullet for me. Superintendent Miles and Justin Coppedge described thecomments differently. Superintendent Miles questioned Rodriguezs loyalty tohim and the District. At the end of the meeting, Superintendent Miles askedRodriguez to begin thinking about a transition from the District.

Friday,June 14:

Superintendent Miles called Don Smith to discuss the complaint. Smith saidthat, after learning that Rodriguez had filed a complaint against him with OPR,Superintendent Miles stated that he planned to fire Rodriguez the followingMonday. See Tab 65.

Smith called Bob Luna (outside counsel, OPR). Luna advised Smith to callSuperintendent Miles and advise him not to fire Rodriguez because it could bedeemed retaliation and potentially result in litigation against the District. See Tab65.

19 Rodriguez stated that she had a good relationship with Superintendent Miles prior to the June 11 meeting.


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Smith called Superintendent Miles and passed along the advice from Luna.According to Smith, the Superintendent agreed that Rodriguez would retain herpay and title, but that he would remove her from his Cabinet. See Tab 65.

June 18: Superintendent Miles, accompanied by Jack Elrod, met with Rodriguez to

deliver Superintendent Miles letter of concern about Rodriguezs behavior at the Boardbriefing. See Tabs 71, 88.

June 20: At Superintendent Miles request, Elrod and Lisa Ray met with Rodriguez toprovide her three options: reassignment to a non-Cabinet position at the same salary,administrative leave, or severance.

B. Findings Regarding Rodriguezs Bullying and/or Retaliation Allegations

1. We determined that the allegations of bullying against Superintendent

Miles are not substantiated.

Per Board Policy DH (Local), bullying is defined as a form of workplace aggression,

which includes incivility, rudeness, and discourteous verbal and non-verbal behaviors that are

unrelated to the employers legitimate business interests. See Tab 3. Bullying does not

include the legitimate exercise of employee management, including assigning tasks, coaching,

and taking work-related disciplinary actions against an employee. See Tab 3, (DH (Local) at p.

1 of 8).

We did not find any evidence to support an allegation that Superintendent Miles bullied

Rodriguez. Rodriguez declined to characterize her conversations with the Superintendent as

verbal abuse or bullying. We also interviewed other witnesses to the reported conversations,

and each declined to characterize Superintendent Miles statements and actions as unprofessional

or bullying.


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2. We found insufficient evidence to conclude that Superintendent Miles

retaliated against Rodriguez for making allegations about him to OPR.

Rodriguez expressed concerns that Superintendent Miles retaliated against her following

the June 13 Board briefing. DH (Local) prohibits, inter alia, retaliation against an employee

who, in good faith, makes a report, serves as a witness, or otherwise participates in an

investigation. See Tab 3 (DH (Local) at p. 3 of 8). Because the policy is narrowly written, a

violation would occur only if Superintendent Miles took adverse employment action against

Rodriguez because she reported a claim to OPR. Under the policy, it is not retaliation to

terminate an employee for other reasons.

Superintendent Miles first communicated to Rodriguez his intent to terminate, demote, or

at minimum, remove her from his Cabinet before he learned of the OPR investigation. Although

Rodriguez filed her OPR complaint on the morning of June 14, she did not discuss it with

Superintendent Miles that day. Rather, at a meeting later that day, Superintendent Miles

informed Rodriguez that she should begin to think about a transition due to what he perceived

as her lack of loyalty and behavior at the Board briefing.

After the June 14 meeting, Superintendent Miles found out that OPR had requested files

related to RFP #TH-204031. Superintendent Miles called Don Smith at approximately 6:30 p.m.

on June 14 to inquire why OPR had obtained the documents. See Tab 65. Smith confirmed that

OPR was looking into an allegation filed by Rodriguez about the May RFP.

The evidence suggests that Superintendent Miles may have become more determined to

terminate Rodriguez after learning of her OPR complaint During their 6:30 p.m. telephone

conversation on June 14, Superintendent Miles allegedly told Smith that he intended to fire

Rodriguez the following Monday. See Tab 65. Smith called Superintendent Miles back that

same evening and instructed him, based upon advice Smith had received from outside OPR


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counsel Bob Luna, not to terminate Rodriguez or reduce her salary for fear of a retaliation claim.

See Tab 65. Superintendent Miles disagreed with Smiths recollection of this conversation, and

claimed that he shared with Smith only his concern over whether he could trust Rodriguez and

his plan to remove her from his Cabinet.

Moreover, later incidents further deteriorated the working relationship between

Superintendent Miles and Rodriguez. For example, on June 18, Rodriguez called Elrod to

discuss Superintendent Miles. Elrod described Rodriguez as almost hysterical. During the call,

Rodriguez described Superintendent Miles as evil and despicable and said that he had

usurped her authority.

In addition, Superintendent Miles made the decision to document his concerns about

Rodriguezs behavior during and after the June 13 Board briefing. On June 18, after the call

between Rodriguez and Elrod referenced above, Superintendent Miles and Elrod met with

Rodriguez in order to deliver Superintendent Miles letter of concern to her. See Tab 71.

Superintendent Miles and Elrod both reported that Rodriguez again called Superintendent Miles

despicable. See Tab 88.

The evidence suggests that the ultimate decision to terminate Rodriguez occurred after

the working relationship between Superintendent Miles and Rodriguez had become untenable.

On June 20, Rodriguez met with Elrod and Lisa Ray (Legal Services) to discuss the employment

options that would be offered to her on a going-forward basis: reassignment to a non-Cabinet

position at the same salary, severance, or administrative leave to afford Rodriguez time to

evaluate other options. Rodriguez rejected the offer of a reassignment or administrative leave on

the basis that either course carried the appearance that she had done something wrong. Elrod


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recommended that she retain counsel and suggested attorney Daniel Ortiz, whom Rodriguez

retained to negotiate a settlement and severance agreement with the District.20

Although the timing and circumstances of Rodriguezs severance raise serious questions,

we found insufficient evidence of retaliation for the following reasons: (1) the initial

employment decision appears to have been made based upon Superintendent Miles

disappointment with Rodriguezs behavior at the June 13 Board briefing and without knowledge

of the OPR investigation; (2) Superintendent Miles stated that the basis for terminating

Rodriguez had nothing to do with her allegations to OPR; and (3) events (including multiple

disparaging comments made by Rodriguez) after Superintendent Miles learned of the OPR

investigation indicate that their working relationship had become untenable.

IV. Alleged Obstruction of the OPR Investigation by Superintendent Miles

A. Factual Background

The crux of the allegations in the preliminary OPR report is whether Superintendent

Miles obstructed the OPR investigation into his actions. The report raised three possible acts of

obstruction: (1) Superintendent Miles suspension of the OPR investigation (including

confiscation of OPRs investigative files) on June 26, 2013; (2) Superintendent Miles

20 Under his employment contract, Superintendent Miles holds the administrative authority and responsibility forthe assignment and evaluation of all personnel other than [himself], which includes the ability to [i]nitiate theproposed termination or suspension of an employees employment or the proposed nonrenewal of an employeesterm contract. See Tab 1. However, the fact that Superintendent Miles played a direct and substantial role in

negotiating the terms of Rodriguezs severance during the pendency of an OPR complaint she filed against himraises clear conflict of interest concerns. Indeed, the generous terms of Rodriguezs severance give the appearancethat Superintendent Miles may not have been truly objective and was motivated, in whole or in part, to buyRodriguezs silence and, consequently, abort the OPR investigation. First, Rodriguez was provided four monthspay after working at the District for less than three and a half months. Severance in this amount is rarely given toemployees who work such a short time at the District. Second, the settlement agreement included a non-disparagement clause that, in effect, prohibited Rodriguez from speaking out about her complaints againstSuperintendent Miles or the District. Although Superintendent Miles participation in the severance negotiations istroubling, the Boards conflict of interest policy relates to discrete factual situations and does not cover thissituation.


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declination of an interview request by OPR; and (3) Superintendent Miles conversations with

witnesses about relevant facts during the pendency of the OPR investigation. We will address

each of these matters in turn.

The key facts surrounding Superintendent Miles possible obstruction of the OPR

investigation are as follows:

June 14, 2013: Superintendent Miles learned of the OPR investigation. See Tab 65.

Superintendent Miles learned that OPR requested documents from Purchasingregarding RFP #TH-204031. Superintendent Miles called Don Smith to ask why OPRrequested the documents. Smith confirmed the document request and explained thatRodriguez had filed a complaint with OPR regarding the May RFP process andpossible efforts to steer a contract to The Concilio.

June 17 through June 24, 2013: The OPR investigation continued.

June 20, 2013: OPR interviewed Justin Coppedge.

June 22, 2013: Superintendent Miles emailed Coppedge a copy of his draft statement inresponse to Rodriguezs allegations. See Tab 76.

June 24, 2013:

Superintendent Miles called Byron Sanders to discuss their June 12 telephone

conversation about the board document for RFP #TH-204031.

OPR interviewed Sanders.

June 25, 2013:

Superintendent Miles called Smith about his belief that the OPR investigationshould be terminated for the good of the District in light of the pending settlementbetween the District and Rodriguez. See Tab 82.

OPRs attorney Bob Luna and Jack Elrod reviewed whether to terminate the OPRinvestigation.

Superintendent Miles called Board President Cowan to discuss whether to terminatethe OPR investigation. See Tab 79.

Wednesday, June 26, 2013: The OPR investigation was suspended.


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1:00 a.m.: Board President Cowan emailed Elrod, copying Superintendent Miles,and Smith, with his instruction to suspend the investigation pending consultation withBoard attorneys. See Tab 79.

8:00 a.m.: Smith responded I understand, to Cowans email. See Tab 79.

8:30 a.m.: Superintendent Miles called Smith (with Elrod and attorney Lisa Ray) toinstruct Smith to suspend the OPR investigation and to turn over a copy of the reportto Elrod and Ray for their review. See Tab 82.

(Time Unspecified) Elrod and Ray retrieved and reviewed a copy of OPRspreliminary report and evidence.

(Time Unspecified) Elrod and Ray reported to Superintendent Miles that they foundno violations of Board policy, rules or laws by the Superintendent in pulling theBoard briefing agenda item.

Thursday, June 27, 2013: Board meeting.

Friday, June 28, 2013: Meeting among Superintendent Miles, Board President Cowanand Board Attorney Sonya Hoskins.

Friday, June 28, 2013: The OPR investigation was unsuspended. See Tabs 85-87.

Saturday, June 29, 2013: Elrod returned OPRs files to Bob Luna.

B. Findings Regarding Superintendent Miles Alleged Obstruction of the OPR

Investigation.

1. We found no Board policy violation arising from the suspension of the OPR

Investigation.

On June 26, 2013, Superintendent Miles suspended the OPR investigation into the

allegations made by Rodriguez. According to Superintendent Miles, he suspended the

investigation to avoid the risk of violating the mutual non-disparagement clause being negotiated

between the District and Rodriguez. Although no witness was aware of any precedent or

authority for suspending an OPR investigation, we could not find a Board policy that prohibited

a Superintendent from doing so.


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Moreover, Superintendent Miles gave the suspension directive after Board President

Cowan emailed Superintendent Miles, Jack Elrod and Don Smith that the OPR investigation

would be suspended until attorneys could assess and resolve the apparent conflict involved in

OPR (a direct report to Superintendent Miles) investigating allegations about Superintendent

Miles. See Tab 79.

After the investigation was suspended, and without consultation with Board President

Cowan, Superintendent Miles instructed Smith to provide copies of OPRs preliminary report

and evidence to Jack Elrod and Dallas ISD employment attorney Lisa Ray for their review. In

response to Superintendent Miles verbal instructions to Smith regarding the suspension of the

investigation and the seizure of the OPR files, Ray advised Superintendent Miles that, if he

thought the investigation was meritless, he should let the investigation play out. Elrod

concurred with Rays advice.

Superintendent Miles disregarded the attorneys advice and instructed them to obtain a

copy of the OPR investigative file and conduct a review to determine whether he had violated

any Board policies, rules or laws. On the Superintendents instruction, Ray and Elrod obtained

and reviewed the OPR documents on June 26. Ray and Elrod reported to Superintendent Miles

that same day that they did not believe he had violated any Board policies, rules or laws.21

Two days later, on June 28, 2013, the OPR investigative files were returned in their

entirety to OPR, and the investigation resumed. See Tabs 86, 87. Shortly thereafter, the District

made the decision to hire outside counsel to complete the investigation.

21 Elrod confirmed during his interview that he and Ray determined during their review of the OPR files that ByronSanders might have interfered with the May 2013 RFP and improperly communicated with The Concilio during theopen RFP period.


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Notwithstanding the questionable judgment of a District employee suspending an

investigation of himself, we see no violation of Board policy in connection with Superintendent

Miles order to suspend the OPR investigation and seize OPRs investigative file.

2. We found no violation of Board policy in connection with Superintendent Miles

declining OPRs interview.

On June 23, Superintendent Miles provided Jack Elrod with a written narrative rebutting

the allegations made by Rodriguez. At or about this same time, OPR began attempting to

schedule an interview with Superintendent Miles regarding the allegations made by Rodriguez.

On June 25, Superintendent Miles, through Elrod, declined the interview request.

Neither Superintendent Miles nor Elrod provided Miles written statement to OPR on

June 25; however, each talked with Smith that day regarding Superintendent Miles position that

the OPR investigation should be terminated for the good of the District on the basis that

Rodriguez would withdraw her OPR and EEOC complaints in connection with her settlement

with the District.22

See Tab 82. After further discussion of which Board President Cowan was

informed the OPR investigation was suspended on June 26 to provide time for a legal opinion

regarding whether OPR should investigate Superintendent Miles. See Tab 79.

On June 23, Superintendent Miles provided Elrod with a written narrative rebutting the

allegations made by Rodriguez. On August 16, Superintendent Miles participated in an

interview with the Firm about the subject matter under investigation. He further cooperated with

our investigation by providing personal cell phone records and emails pertaining to the scope of

our investigation.

22 Rodriguez informed us that, during the severance negotiations, District officials asked her to withdraw her OPRcomplaint. She refused to do so.


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Board policy DH (Local) requires all employees to cooperate with all official District

administrative investigations or inquiries by affirmatively providing all relevant and factual

information about the subject matter of the investigation. See Tab 3, (DH (Local) at p. 3 of 8).

If an employee fails to cooperate, his/her supervisor must issue a directive to cooperate. An

employees failure to cooperate after receiving such a directive constitutes an act of

insubordination. See Tab 3.

Although Superintendent Miles failure to cooperate with the OPR investigation showed

poor judgment, threatens to set a dangerous precedent for future OPR investigations, and

arguably violated the spiritof DH (Local), it did not violate the letter of DH (Local) because he

was not subsequently directed to submit to an interview by a supervisor. Moreover, after being

ordered by the Board to cooperate with this investigation23, Superintendent Miles submitted to an

interview by our Firm. Thus, we find no violation of Board policy in connection with this act.

3. Superintendent Miles violated Board policy and, thus, breached his employment

contract by discussing facts relevant to the OPR investigation with two witnesses.

a. June 24, 2013 phone call to Byron Sanders.

On June 24, 2013, Superintendent Miles called Sanders to inform him about the OPR

investigation and discuss facts relevant to the OPR investigation. Sanders said that

Superintendent Miles called to refresh his recollection about what had happened on the June 12,

2013 phone call that triggered Superintendent Miles decision to remove the parent engagement

RFP from the Board briefing agenda. Superintendent Miles then gave Sanders his recollection of

the conversation and asked if he recalled it differently. At the end of the conversation,

23 On July 26, the Board delivered to Superintendent Miles a letter that, inter alia, required him to cooperate withthe attorney hired by the board to conduct the independent investigation.


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Superintendent Miles informed Sanders that there was an OPR investigation and that he

(Sanders) might be contacted by OPR for an interview.

On the call, Sanders said that he agreed with Superintendent Miles recollection of the

facts. Sanders stated that the call lasted between five and ten minutes.

Superintendent Miles claimed during his interview not to recall the conversation, but did

not deny or controvert Sanders recollection of the call.

Board policy DH (Local) prohibits employees during an OPR investigation from

contacting the suspected individual in an effort to determine facts and/or discussing the

case, facts, suspicions, or allegations with anyonewithin the organization unless specifically

authorized to do so by the Office of Legal Services, OPR, and/or Police and Security. See Tab

3 (DH (Local) at p. 2 of 8). Superintendent Miles conversation with Sanders violated Board

policy DH (Local).

b. June 22, 2013 email to Justin Coppedge.

On June 22, 2013, Superintendent Miles sent his proposed written statement regarding

the OPR case to his assistant, Justin Coppedge, and asked him to review it and comment. The

email was sent from Superintendent Miles personal email account to Coppedges personal email

account. See Tab 76. The timing of the email is significant because both Superintendent Miles

and Coppedge were aware of the pending OPR investigation at that time. Superintendent Miles

learned of the OPR investigation on the evening of June 14. Coppedge learned of the OPR

investigation no later than June 20, when he was contacted by OPR for an interview. Thus, both


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Superintendent Miles and Coppedge24 knew at the time that both were witnesses in an ongoing

OPR investigation into Rodriguezs allegations.

The content of the memo is also significant because Superintendent Miles asked

Coppedge to review Superintendent Miles rebuttal of Rodriguezs allegations to OPR. In

addition, Superintendent Miles memo recites events that were the subject of an affidavit

Coppedge submitted to OPR in connection with his interview. The June 22, 2013 email is a

second violation of Board policy DH (Local).

c. Superintendent Miles' violations of DH (Local) constitute good causefor dismissal under his employment contract with the District.

Under the terms of the Superintendents employment contract, any violation of Board

policy or District policies, rules and regulations constitutes good cause for termination. See

Tab 1 (p. 2 of 22 at 2.1 (first paragraph) and p. 18 of 22 at 5.3(a), (c), (d)). As discussed

more particularly above, Superintendent Miles violated Board policy DH (Local) on two

occasions by contacting witnesses in a pending OPR investigation. Therefore, these same acts

are also violations of the terms of his employment contract.

24 Coppedge was the recipient of an unsolicited email by Superintendent Miles, another witness in the OPRinvestigation. Thus, arguably, the June 22, 2013 email is a violation by Superintendent Miles, but not Coppedge.However, on June 23, Coppedge responded to Superintendent Miles email and noted a discrepancy between hisrecollection and that of Superintendent Miles regarding a June 11 meeting with Rodriguez. See Tab 77. By that

Paul Coggins Report on DISD Superintendent Mike Miles 9.6.2013

Documents

Transcript of Paul Coggins Report on DISD Superintendent Mike Miles 9.6.2013