Tuesday, July 18, 2006

Second Request for Dismissal of Wrongful Suspension

Of course Robert Sammis emailed me, avoiding all the issues I raised. Here is his email response to me and my response to him.

-- Des Manttari,
Phoenix Genesis

(c) 2006: Phoenix Genesis/MBS LP

-------------- MY EMAIL RESPONSE TO ROBERT SAMMIS -------------------------


July 18, 2006

Dear Mr. Sammis,

You seem to contradict yourself in your email below. You state the following: "I have received no communication from your attorney or you until your email below." (You are apparently referencing my previous email of July 18, 2006). However, you make reference to and quote from the June 13, 2006 email I sent you in your first paragraph, which you claim you did not receive in your second paragraph. It is obvious that you did in fact receive this email on or about June 13, 2006 as well as my follow-up email on June 16, 2006 and you failed to respond in a timely fashion.

Although you quote from my June 13, 2006 email to you, you leave out the next relevant sentence in which I wrote: "I feel we will need more than one day for the appeal hearing and would like you to please provide some tentative dates that would suit your calendar." [emphasis added]. As with Ms. Penchansky (who failed to provide tentative dates to meet with her with the attorney of my choice), you failed to provide any tentative dates then and you have still failed to provide tentative dates.

My next sentence read: "Do you wish to have my attorney contact you directly when he returns from his vacation?" You also failed to respond to this question. Of course, you failed to respond to any of my questions in the June 13, 2006 email and continue to fail to answer these questions, despite the fact that you have had over a month since this email to respond.

On June 13, 2006, I wrote to you the following: "Additionally, I have asked in writing repeatedly for the names and titles of the members of the appeals hearing committee and have yet to receive a response. Please provide this information to me as soon as possible." You have failed to provide this information. As previously stated, I was to be afforded a hearing with an impartial hearing committee.

On June 13, 2006, I also wrote the following: "As to the documents you provided, I am wondering why any and all written statements in my support were not included in the documentation you sent me? These are part of my disciplinary file as they were allegedly sent to Dean Penchansky and should be promptly disclosed. Furthermore, I have asked repeatedly for the petition that was allegedly circulated by Ms. Penchansky and Thomas J. Baker, yet that was not contained in your packet. As to the SMCPD reports, there are still some outstanding that were referenced in the suspension letter that were not included. Am I to assume that these reports do not in fact exist and, as such, will not be produced? Please let me know." Again, you failed to provide me with this information and did not answer these questions.

On June 13, 2006, I wrote: "Additionally, I have only received the first page of an email dated Tuesday, February 28, 2006 sent allegedly from Judith Penchansky to you, cced to Jim Keeshen and Katharine Muller, entitled "RE: Des Mantarri History part I." Please send the remainder of this email to me." You failed to send this document to me, although it was referenced in my disciplinary file. As I have made clear, you are in violation of my rights regarding disclosure of documents in my disciplinary file.

On June 13, 2006, I wrote: "Furthermore, there is a two-page undated and unsigned statement by Jim Keeshen to "Judy Penchansky" in which at the right top corner there is a handwritten comment which appears to have Ms. Penchansky's initials which states "received via email 8/23/05." Please provide the original email to me. Also, in the last paragraph of the first page, there is a statement that reads: "Subsequently it was discovered that without my permission or knowledge, Des Mantarri [sic] continued to enter into my classes even after the semester had ended. Julie Yarrish has a log of all these entries." Please provide me with a copy of this alleged "log." Additionally, Mr. Keeshen makes references to several emails between us on page 1, paragraphs 5 through 6. These alleged emails should be promptly disclosed." You failed to disclose these emails or the alleged log referenced therein. Accordingly, you failed to respond to me, thus violating my rights to disclosure of these documents.

On June 13, 2006, I wrote the following: "Nowhere in the documents you provided me were there any formal investigations or reports prior to my wrongful and immediate suspension. To the best of my knowledge, there were no letters or statements or emails from SMC President Chui Tsang or SMCPD Chief of Police Eileen Miller. Am I to assume that none of these documents exist? Please let me know." Again, you never answered these questions.

On June 13, 2006, I wrote the following: "Also, there are two email solicitations from SMC student Thomas J. Baker to SMC employees Stu Seldon and Jim Keeshen. Accordingly, any email or other written responses from them should be disclosed, as they are part of my student disciplinary files." Again, you did not respond nor did you disclose these emails, if any existed.

On June 13, 2006, I wrote: "I reserve the right to further comment or correct any of the information you provided me until I have had ample opportunity to discuss such with my attorney." By failing to provide this information, you are in violation of the California Education Code, which governs correction of information contained in my disciplinary file.

On June 13, 2006, I wrote: "Again, I have requested repeatedly in writing to inspect my student records, including disciplinary records maintained by Dean Penchansky. Despite my requests, I have not been afforded an opportunity to physically inspect these files. Please let me know when I can inspect my files." Again, you did not respond. To date, I have not been afforded an opportunity to inspect these disciplinary records, in violation of the California Education code and FERPA. As such, you are in violation of my rights.

Finally, on June 13, 2006, I wrote the following to you: "Additionally, I have asked in writing for a list of witnesses that the school plans to call at the suspension appeal hearing. Please provide this list to me as soon as possible so that we may properly gage the length of time needed for the appeal hearing and so that I can prepare my case." Again, you did not respond nor did you provide this list of witnesses.

As you can see, you have had adequate time to respond and have failed to do so. You have violated my rights and have shown, as has everyone else involved in this suspension case, no fundamental fairness or impartiality. SMC held numerous secret meetings in my case in violation of the Ralph M. Brown Act governing open meetings, yet never afforded me a single meeting with Ms. Penchansky or Ms. Hearn.

Moreover, although Ms. Penchansky violated my rights to communicate with Professor Jim Keeshen (who she coerced to write at least one false statement against me that led to my suspension), she was aware that Mr. Baker had emailed Professor Keeshen during this same period to seek his help in drumming up false allegations against me. As SMC was aware by the face of Mr. Baker's written emails to both Professor Keeshen and Mr. Stu Seldon, Mr. Baker had no rights to exclude me from the SMC Game Club or to call the SMCPD on March 24, 2006.

In fact, you have gone out of your way to coach SMC student Thomas J. Baker and to help him prepare his answers to a restraining order against him (as set forth in an internal email provided from SMC), well outside the scope of the school's legal and moral boundaries. As you helped Mr. Baker prepare his answers under penalty of perjury, you were aware that they were inconsistent with his written statement to the SMCPD. As such, you were aware that Mr. Baker provided SMCPD with false statements to wrongfully procure my suspension. As such, the allegations by Mr. Baker were false and these charges should have been dropped by SMC.

Yet, despite Mr. Baker's own admissions that he had no right to exclude me and no legal justification, witnesses, or evidence, Ms. Penchansky helped Mr. Baker draft backdated statements with witnesses who were his business partners. Accordingly, these witnesses were neither impartial nor credible and had a vested financial interest in seeing me suspended. Although you are well aware that Mr. Baker violated the student code provisions governing academic dishonesty and providing the college with false information, you have allowed this wrongful suspension to move forward without disciplining Mr. Baker accordingly.

As I have stated in my certified letter to President Tsang on or about June 30, 2006 and in my previous July 18, 2006 email to you, the suspension violates many of my rights to due process and other rights I have as a student and a citizen. The entire disciplinary process has been tainted and slanted from the very start. There has been no impartiality or fundamental fairness. An appeal hearing (which SMC is beyond the legal time to pursue) would also not be fair and impartial. In fact, in our meeting on or about April 21, 2006, you indicated that if I were, in part, to comply with your demands to drop my California Public Records Act lawsuit, that the school (as well as you) would have no interest in suspending me. Under this pressure, I complied with your extortionist demands.

Furthermore, as previously stated in my July 18, 2006 email, by going through with this suspension with two allegations that Ms. Penchansky (acting in her official capacity as an agent and employee of SMC) has previously exonerated me in writing, SMC is placing me in double jeopardy. Clearly, if I were suspended on these charges, it would be quickly overturned in any court of law. Add to this the fact that SMC waited almost a year after Ms. Penchansky's June 6, 2006 letter exonerating me to bring these same charges again (and still without any investigation into the matter) and SMC is in clear violation of my rights.

As previously stated, to avoid costly litigation in this matter, the suspension (including immediate interim suspension) should be dismissed with prejudice immediately and the enrollment hold should be removed so that I can register for Fall 2006 classes at SMC. A simple review of Supreme Court cases would show you that the courts do not take lightly the violation of student rights, including First Amendment issues. The law makes clear that public schools are under a duty to follow California law and Constitutional law. Although there is some latitude to how school's handle their disciplinary process, it is mandatory that the minimal due process is followed. The longer and harsher the suspension, the greater the due process requirements.

Without any investigation or impartiality or minimal due process, SMC has suspended me for two entire years. This suspension is essentially an expulsion, not authorized by either the president of the college or by its board of trustees. All your summary allegations are based on First Amendment issues. As such, you have violated my rights in that the lengthy suspension is neither supported by facts or by the internal procedures of the school guaranteeing "due process." Although you have agreed that I have "operated at all times consistent with the applicable Administrative Regulation concerning suspension hearings," SMC has not, nor does it intend to, operate within the law. Our student tuition and tax dollars are better spent on educating our students and meeting the demands of the faculty to a fair contract than it is in any litigation that would ensue from these gross violations of my rights.

I expect a prompt response from you regarding whether SMC plans to drop this wrongful suspension.

Very Truly Yours,
Des Manttari /s/

cc: SMC President Chui L. Tsang
Nancy Greenstein, Chair, SMC Board of Trustees
Susan Aminoff, Vice-Chair, SMC Board of Trustees
Office for Civil Rights, U.S. Department of Education

----------------------- ROBERT SAMMIS’ EMAIL RESPONSE TO ME --------------------

Subject: RE: Dismissal of Wrongful Suspension
Date: Tue, 18 Jul 2006 10:37:56 -0700

Dear Des:

On June 2, 2006 I sent you an email in which I invited you to contact me to set a date for your suspension hearing. On June 13, 2006 you sent me an email in which you stated, in relevant part, “This was the first day of my attorney's summer vacation and I am informed and believe that he will not be returning to the office until after June 19th. Accordingly, I will attempt to contact him as soon as possible so that I may review these documents with him and forward your request for setting up the dates and times for the suspension appeal hearing. To give you a tentative date, I would suggest sometime around the first week of July, although I do not know his court calendar at this time.”

I have received no communication from your attorney or you until your email below. Please have your attorney contact me so we may schedule your appeal hearing. The District does not dispute that you have filed a timely request for an appeal and has operated at all times consistent with the applicable Administrative Regulation concerning suspension hearings.

Robert Sammis
Vice President, Planning&Development
Santa Monica Community College District

-----Original Message-----

From: Phoenix Genesis
Sent: Tuesday, July 18, 2006 1:45 AM
Cc: savesmc@yahoo.com; TSANG_CHUI; GREENSTEIN_NANCY; AMINOFF_SUSAN; ocr@ed.gov
Subject: RE: Dismissal of Wrongful Suspension


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