Boaz V. The Untutored & Malicious
by Bruce McEwen, June 17, 2010
Dennis Boaz is erudite and urbane, a man of varied and laudable experience – teacher, historian, lawyer, writer, civil rights advocate. So when Bryan Barrett, the toadying assistant superintendent of Ukiah Unified School District, wrote a memorandum calling Boaz a racist, Boaz sued for defamation of character.
Boaz, who taught at Ukiah's South Valley High School at the time, had been representing teachers in salary negotiations with the Ukiah Unified School District.
The libel suit arose from the now retired history teacher's use of the word “niggardly” in a memo to the school district about union negotiations.
Boaz's case was heard Friday in Mendocino County Small Claims Court presided over by Judge Leonard LaCasse. Boaz filed a small claims suit last year against district Assistant Superintendent of Personnel and Student Services Bryan Barrett, and another action against Paul Tichinin of the Mendocino County Office of Education and several small district superintendents affiliated with Tichinin.
Boaz said he'd been defamed by these haphazardly educated school administrators, that his reputation had been damaged when Barrett wrote a letter characterizing Boaz's use of the word niggardly in his memo to the district as “racism” or “suggested racism.”
Barrett had written to Ukiah Teachers Association president Sherry Sandoval and other involved officials: “This memo is formal notice to [the Ukiah Teachers Association] that Mr. Boaz's communication is insulting and unacceptable ... (and) racism or suggested racism has absolutely no place in this district.”
Boaz is not a racist, and he wasn’t going to be libeled by group of malicious know-nothings.
A libel is a false and malicious published statement that damages somebody’s reputation. Barrett’s memo libeled Boaz by calling Boaz a racist for using the word “niggardly” to describe Ukiah Unified's response to the teacher's union's demands for fair compensation. Barrett called Boaz a racist knowing full-well, as Boaz said in court, that the word had no racist meaning.
Barrett and his shot-callers at Ukiah Unified were not only trying to get rid of the effective Boaz as union negotiator, they were trying to destroy him.
Barrett said Boaz's alleged slur had been aimed at Ukiah Unified School Superintendent Lois Nash, who is black.
“The more I thought about it,” Boaz said, “the angrier I got. My blood pressure went up and I couldn’t sleep.”
When the case was called early last Friday morning, Judge Leonard LaCasse told the parties to attempt a mediation and he would get back to them after he heard some other matters.
Mr. Barrett immediately declined the mediation, so there was nothing to do but wait for the judge to return.
During the break, Mr. Boaz immediately found himself surrounded by the local press corps. With his eyes dancing merrily, he fielded a barrage of questions about himself and his case against Barrett and Ukiah Unified. He was pleasant and patient, his voice soft and his good humor infectious. A couple of reporters had learned that Boaz had been convicted-murderer Gary Gilmore’s lawyer; the man who pled Gilmore’s case for execution. Gilmore, you may recall, demanded execution by firing squad. Boaz helped him get it. Boaz was extensively interviewed by author Norman Mailer for Mailer’s prize-winning book, “The Executioner’s Song,” and he played himself in the subsequent movie.
Boaz showed the reporters a marvelously written report he'd prepared in which he used an extended metaphor to portray the school board as Draconian. Not only was the report artfully written, it was irrefutably accurate and effective in damning the district’s negotiation tactics as applied to major issues like health benefits, sick leave, vacation, and so on.
Unable or unwilling to address the charges in the report, the school district bureaucrats decided, instead, to besmirch its author’s reputation, and came up with racism: “The tenor of the negotiations have become increasingly negative and niggardly,” Boaz wrote.
They immediately Googled the word, Barrett said.
In recent years efforts to ban niggardly have emerged on the PC agenda, and Barrett and his team of slanderers would have found this news on Google. In 1999 a white aide to the black mayor of Washington, D.C., resigned after a black colleague complained about use of the word; a teacher in North Carolina was reprimanded for teaching the word to her class; and the Dallas Morning News banned the word after readers complained about its appearance in a restaurant review; a Boston reader complained to Britain’s “The Economist” magazine about the word, but the British editors just laughed at the Yank. “Where else in the English-speaking world could this happen?
Mr. Barrett said, “There are thousands of words he could have used other than niggardly.”
“I was hoping,” Boaz said, “to build some fighting spirit in the union.”
When the commotion over the word broke out, a commotion deliberately begun by Barrett and his fellow intellectuals in Mendocino County school administration, there was speculation that the word was used as a slur aimed at Lois Nash. Boaz immediately wrote a letter to Dr. Nash stating that that was not his intent and apologizing for any inferences that she may have drawn. At the time, Dr. Nash said she hadn’t taken Boaz's choice of words personally nor had she thought he'd intended to insult her.
Boaz is also suing, County School Superintendent Paul Tichinin. Tichinin’s letter accusing Boaz of racism was endorsed by all his subordinate superintendents, from one end of the county to the other, marking them forever as either sycophants or dummies or both.
Paul Tichinin is the superintendent of the Mendocino County Office of Education. To put his rank in bureaucratic perspective, consider this: His pay scale and scope of influence is roughly equivalent to a colonel in the military. They command a similar size staff to manage the personnel of a mission that involves roughly comparable numbers of people, whether it be a regiment of US troops, or a domestic school district.
The comparison is essential because the salary and rank was established in order to attract a qualified individual, someone with the leadership abilities and intelligence necessary for such a posting. The job pays $120,000 a year and includes perks most Americans can only dream about.
Colonel Tichinin’s signature appears dependably as clockwork on a great many paychecks in Mendocino County. He has been flattered often by those who are beholden to his mighty and highly lucrative pen, but always in the vaguest terms such as wonderful, great, and, especially, nice. Personally, I would describe him as cute. Especially when he was holding that sign “CUTS HURT KIDS” out in front of the courthouse a couple months ago, essentially using children as human shields to protect his own sweet salary. Exquisitely cute. Despite his many admirers, a constitutionally protected source told this reporter on Friday that a state budget expert has encountered something extraordinary at Col. Tichinin’s office. Apparently, deep in the bowels of the colonel’s bunker, the experts stumbled into a vault full of riches.
Bryan Barrett is the second in command at one of the battalions that make up Col. Tich’s regiment, a mere major, serving directly under Lt. Col. Lois Nash, but also serving as Col. Tich’s personnel officer, known as S-1 in the military command structure.
Col. Tich has presently withdrawn from the battlefield. He’s in retreat, digging in, having got his court action postponed to September. He's on vacation, you see, no doubt deeply engaged in study and prayer. He probably also wants to see how his S-1 officer, Bryan Barrett, does in the present skirmish.
After a couple hours of delay, the skirmish finally began in earnest.
It was a small claims action, with a $7500 limit, and Judge LaCasse conducts these things with a minimal formality. Mr. Boaz, to his credit, didn’t pose as a lawyer — he’s retired from that profession.
Mr. Barrett, on the other hand, immediately made a fuss. He wanted to submit a legal brief prepared by the school district’s general counsel, Margaret Merchat. Boaz chuckled mildly over the pretentiousness of this formality, but Judge LaCasse accepted it, saying Barrett was within his rights.
(We wonder about that. Small claims actions are supposed to be free of lawyers, just the two parties representing themselves as best they can. And where do Barrett and Merchat get off using school money to defend gross stupidity and malice?)
Judge LaCasse told Boaz, “You’re saying this is defamation. I want to know what was said.”
Boaz responded. “I worked as lead negotiator with UUSD. On March 3rd of ’09 I wrote a sarcastic bargaining report, criticizing the board, calling it Draconian. Then in a report written to my boss, Sherry Sandoval, from Bryan Barrett, Mr. Barrett stated that Mr. Boaz was inciting racism or suggested racism.”
Judge: “Is that the statements that are defamatory?”
Judge: “Who’s it addressed to?”
Boaz: “Sherry Sandoval. I was the lead negotiator. As a teacher, I volunteered.”
Judge: “When was the alleged defamatory statement made?”
Boaz: “March 17th, ’09.”
Judge: “Saint Patrick’s Day?”
Boaz: “That’s right.”
Judge: “How were you damaged by the statements?”
Boaz: “Well, economically, I felt I should no longer be the lead negotiator. It didn’t seem appropriate. So I received a reduction of $1,200 — I would have received $2,400. I was shocked, then I became angry. As a teacher I vigorously teach about the importance of civil rights. Racism has no place in my classroom. I am not a racist. My wife and daughter are Jewish. We attended the inauguration of President Obama. But as a writer and a teacher my reputation is important to me, and I was put in this position where teachers were clamoring for my resignation.”
Judge: “How many teachers?”
Boaz: “About 20 teachers, following the memorandum by Mr. Barrett.”
Judge: “How do you attribute that to Mr. Barrett?”
Boaz: “Sorry, your honor,” having shuffled through his papers, he found a page and passed it to the bailiff. “This goes to malice, written against me. Entitled, ‘To All Employees’ wherein I am singled out for criticism by Mr. Barrett. The purpose was to single me out and criticize me. It only goes to the intent of Mr. Barrett.”
Judge: “Okay. Tell me more about your damages.”
Boaz: “I kept waking up at night. My blood pressure was up. The turmoil of discussing this with several teachers. I was very upset with Mr. Barrett — for someone who knew me, to treat me like this.”
Judge: “Anyone else?”
Boaz: “Yes. A teacher came up to me and seemed to suggest that Dr. Nash was upset by all this.”
Judge: “Did you give her a dictionary?”
Boaz : “No. I apologized to Dr. Nash in a letter.”
Judge: “To be defamed implies a loss of, well, support, respect, whatever…”
Boaz: “I got support from teachers who said, ‘We know you’re not a racist’ but this incident was creating a spirit in the union and in the fall of last year I resigned.”
Judge: “Anything else?”
Boaz said he wanted to question Barrett as an adverse witness.
Judge: “What does your other witness have to say?”
Shannon Bradford, the liaison to the executive board took the stand.
Boaz (Holding up a page): “This is the Welcome to Draconia document that set everything off. Last year in March, you were privy to a memo. We discussed potential fallout and how people might react. Did you discuss the issue with other teachers?”
Bradford: “I did, but I don’t recall exactly who.”
Boaz: “What did they say?”
Bradford: “They were surprised that you would use racist language.”
Barrett had no cross-examination questions. Boaz wanted to ask him some questions.
Judge: “Go ahead.”
Boaz: “Mr. Barrett, you and I have been doing grievance negotiations for how long, now?”
Barrett: “I've been in that position for four years.”
Boaz: “During the year-and-a-half that I've been there did you ever hear me use any racist epithets toward any person?”
Boaz: “Ever hear me criticize Dr. Nash?”
Barrett: “Yes. Something about top-down management, but nothing recent, if that's where you're going.”
Boaz: “So you never heard me so much as suggest that anyone was inferior to me?”
Barrett: “There was nothing that would make me think you would... well, misuse words.”
Boaz: “But you called off a meeting because of my presence.”
Judge: “Look, I don't want to get into any of that. I want to know if you knew what the word meant. That it meant stingy, miserly, et cetera.”
Barrett: “Yes, I knew what it meant.”
Boaz: “So you must have drawn an inference…”
Barrett: “I'm not arguing that I drew an inference. What I was thinking was that we have the only African American superintendent, so my questioning of the use of the word was the time and place.”
Boaz: “Was Dr. Nash at the negotiating table?”
Barrett: “No. But she's the head of the district, so when you say the district, she is the district. You could have used other words.”
Boaz: “How does that make me a racist?”
Barrett: “I said racism or implied racism.. My memo referred to tactics.”
Boaz: “But Dr. Nash was not at that table.”
Barrett: “She was at the table. She gives us our directions on what to do.”
Boaz: “Did you go to my principal and ask if I'd ever used racist language before?”
Barrett: “You admitted that someone might be able to take it the wrong way!”
Judge: “Again, I don't want to get into that.”
Boaz: “Who's idea was it to write that I was a racist?”
Barrett: “That would have come from Dr. Nash, myself, and the attorney, Margaret Merchat, who was very involved in the memo.”
Boaz: “What was your purpose?”
Barrett: “We wanted to have negotiations that were very professional.”
Boaz: “Weren't you trying to get rid of me? You said my integrity was at issue.”
Barrett: “I can't answer that. We had other teachers coming and saying 'We gotta get this guy off the negotiations board.' We took directions from our attorneys before we penned the letter.”
Boaz: “Did you ever think of discussing it with me before calling me a racist?”
Barrett: “There was no reason for me to contact you.”
Boaz: “Don't you think that since you knew what the word meant, you should have contacted me to see what I meant?”
Barrett: “I don't know what your intent was – maybe you could ask yourself that!”
Judge: “Gentlemen. I think I get it. There's only so much time. I've got other cases to hear today.”
Barrett submitted his trial brief and began his testimony: “This is a non-actionable opinion. An opinion is different from a fact–”
Judge: “Okay. You knew what the word meant when you wrote the memorandum?”
Barrett: “Yes, we” –
Judge: “Not we: You! You wrote the memo.”
Barrett: “Like I said, we Googled it and went to the principal.”
Judge: “Anything else?”
Barrett: “When I think about the situational circumstances, the time and place – these words were thrown out there and used! It's how people take them! It was the improper time and place to use that kind of word!”
Judge: “Okay. Well...”
Boaz: “When someone's called a racist, if that's provable it's not a matter of opinion. They jumped to the worst possible conclusion and decided to call me a racist. So I maintain that when you do call someone a racist, especially a teacher, it's going to undermine that teacher's reputation.”
Judge: “Okay, the facts are clear. One thing I'm not clear on was whether any of these are privileged communications. That's an issue I've got to research. And the point of whether it's an opinion. I want to do some further research on that. These things are in a state of revision. Decades ago being called a racist might have been considered an opinion that was not particularly harmful to someone's reputation. Today it can be devastating to a person's career. But the facts are known, the nuances and context are understood. Malice is implied if it's in writing, so I'm going to take it under submission. This is an area where the courts advise us to tread cautiously.”
Judge LaCasse has 60 days to reach a decision.
Mr. Boaz later said this was the first he knew of Dr. Nash's involvement.
* * *
Boaz’s case against Tichinin and all the other school superintendents who also signed the letter calling Boaz a racist was postponed to September 3rd because Tichinin told the court he couldn’t make it to court on Friday.
Tichinin signed that letter, as did Gary Barr of the Potter Valley Unified School District, Mark Iacuaniello of the Point Arena School District, J.R. Collins of the Anderson Valley School District, Don Armstrong of the Fort Bragg Unified School District, John Markatos of the Laytonville School District, Catherine Stone of the Mendocino Unified School District, Dennis Ivey of the Round Valley Unified School District, Cindy Biaggi-Gonzalez of the Manchester School District and Debra Kubin of the Willits Unified School District.
Your children are being educated by these people.
Easement By Implication
Attorney Rod Jones was in Judge Leonard LaCasse’s court while the Boaz v. Barrett case was recessed for a go at mediation. Mr. Jones was representing a woman trying to get an easement through Jackson Demonstration State Forest near Mendocino. LaCasse had told Jones that his pleadings were not before the court; he didn’t have them. There was also a lawyer from the state attorney general’s office present, a Mr. Mark Melnick.
“I got his pleadings a week late,” Melnick said pleasantly.
“I’m entitled to have the matter reviewed,” Jones snapped.
Judge LaCasse became angry. “What?” he snapped back at Jones. “You give them to the clerk at 4pm the day before and expect everything to be ready when you get here?! I don’t think you–”
“I can do it orally,” Jones assured the judge.
“Then go ahead and do it!” LaCasse said, dropping his hands on the bench with a bang.
Jones picked up his papers and read loudly. The AG lawyer objected, softly, and Jones started quarreling with him.
LaCasse said, “Don’t get over-excited.”
Melnick said, “Your honor, Mr. Jones is misunderstanding…”
Jones tried to speak, but LaCasse put up a hand to stop him without even looking in Jones' direction. “He’s exacerbated the issue, which is all about nothing,” continued Melnick.
Jones was fuming at the young AG lawyer. He shouted, “The AG knows inverse condemnation! The AG has refused to ignore estoppel … the Jackson State Forest deed reformation. We need more discovery, historical investigation, the equitable easement for the estoppel, easement by necessity, we will prove easement by necessity…”
“Easement by implication,” Melnick said.
Jones shouted, “If the government has a parcel surrounded by other property, they can get an easement through eminent domain, whereas in an opposite case when the owner is landlocked by government…”
Melnick said patiently, “There has to be no other way, a strict necessity.”
“What does strict necessity mean?!” Jones shouted rhetorically. “Doesn’t that have to be factually developed?”
Melnick answered so quietly he was hard to hear, “All he says is ‘there’s no economic or environmentally feasible way’.”
Judge LaCasse quoted this last phrase right along with Melnick. Apparently, the judge has heard it many times.
Melnick said, “Basically, the case law, 100 years ago, says ‘by necessity’–
“The reformation claims!” Jones shouted. “What about the reformation claims! What are we supposed to do? Get a helicopter? Put in a landing strip?”
“He says he doesn’t understand,” Melnick continued, ignoring the interruption. “’Economically and environmentally feasible’ is just playing a game with the government. He’s being disingenuous.”
“The language is from the government,” Jones shouted, “from his own Board of Forestry!”
LaCasse said, “I’m going to sustain the demurrer. I just want it more articulate, on the necessity and hardship issues.”
“Nobody’s telling her she can’t use the road,” Melnick said.
LaCasse said, “What I get from it is she can’t refinance unless she gets an easement.”
Melnick said, “This is not a cause of action.”
LaCasse said, “I think he’s correct, so I’m going to overrule that one. Nobody’s preventing her from using the road. So with regard to strict necessity, I’ll give you 30 days to amend the demurrer, if you’ll waive time.”
Jones waived time.
LaCasse said, “Notice is waived. We’re locked in for the long haul.”
“He’s being a pickler,” Melnick observed mildly.
LaCasse agreed. “You don’t exactly have a bedside manner, Rod.”
“I have to go,” Jones said. His ‘client’ had already left. ¥¥