Ex-schools chief in O.C. is indicted

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Times Staff Writer

An indictment unsealed Thursday accuses the former superintendent of one of Orange County’s top school districts of using public funds to meddle in an election and create enemies lists.

James A. Fleming was charged with felony counts of misappropriating public funds, using Capistrano Unified School District funds to influence an election and conspiracy to commit an act injurious to the public. A former assistant superintendent was also indicted.

At a news conference Thursday, Dist. Atty. Tony Rackauckas said Fleming was the highest-ranking education official ever prosecuted in Orange County.


“It’s a shame that resources were shifted away from students to create an unlawful list of political enemies,” he said. “I’ve never seen anything quite like this.... There is absolutely no legitimate educational purpose for it.”

The prosecution is a watershed moment in a vitriolic three-year battle between district critics and its administrators and longtime trustees.

The charges, filed under seal May 14, stem from a failed attempt to recall the district’s seven trustees, all Fleming allies, in 2005.

If convicted, Fleming could get four years in prison. Fleming, 64, declined to comment after a court hearing Thursday morning.

Former Assistant Supt. Susan McGill was charged with perjury and conspiracy to commit an act injurious to the public, and could get nearly five years in prison. Attempts to reach McGill, 64, were unsuccessful.

Fleming’s attorney, Ronald G. Brower, noted that a school district investigation by a retired judge found that Fleming had not broken any laws.


A famous lawyer “once said a grand jury would indict a ham sandwich,” Brower said. “There’s great, great truth to that.”

Fleming and McGill are scheduled to be arraigned June 15. Fleming was released on his own recognizance Thursday. Prosecutors have been unable to get in touch with McGill and said a warrant would be issued for her arrest if she did not attend the arraignment.

Although many of Capistrano Unified’s 56 schools in southern Orange County are among the state’s best, the district’s school board and administrators have been beset by a string of controversies.

The 50,000-student district is blessed with many parents who have the will, time and money to ensure the best for their children’s education. Those qualities come into play when parents clash with the Board of Trustees, which until November consisted of longtime trustees who almost always voted unanimously. Three new trustees came aboard with that election.

Parents have loudly protested a threat to close three elementary schools, the conversion of an elementary school into a K-8, and the location of a new high school and its attendance boundaries. They also criticized the construction of a $35-million administration complex while hundreds of classes were being held in aging portables.

These controversies resulted in parents coalescing in spring 2005 for a recall drive against the district’s seven trustees and an attempt to force Fleming’s departure.


In June 2005, parents began gathering signatures at shopping centers and back-to-school nights. On Nov. 8, they submitted petitions with about 25,000 signatures per trustee. A month and a half later, the county registrar of voters deemed so many signatures invalid that no trustees were forced into a recall election.

The bitterness over the recall effort exploded last summer, when a disenchanted former district spokesman released district documents that, he said, showed Fleming kept an enemies list of parents, teachers and others who had received e-mails from recall organizers. The former spokesman, David Smollar, who quit in June, also disclosed that the registrar allowed him and McGill to view signatures on recall petitions, which is illegal.

Those allegations prompted Fleming, who was well-regarded in state education circles and oversaw sharp growth and academic gains in his 15 years with the district, to announce his resignation in July.

“I leave with my head high, proud of the achievements that I have been part of,” Fleming said at the time.

Nearly four weeks later, investigators from the district attorney’s office raided the school district’s headquarters.

According to the indictment, Fleming is accused of twice ordering the creation of enemies lists.


The first is the list Smollar mentioned. The indictment says that when recall proponents announced their drive, Fleming ordered a secretary to create a list of recall supporters and their spouses, schools their children attended and other personal information.

After the recall failed, Fleming in January 2006 allegedly ordered Assistant Supt. McGill to review petitions at the registrar’s office and to gather names of signature collectors. “Per your request, attached are the lists of individuals who were listed as petition signature-gatherers along with the information on whether they have children in CUSD and which schools those children attend,” McGill wrote to Fleming. Much of that information was culled from confidential student databases.

McGill, who worked at the district for 25 years before retiring last summer, was also charged with perjury because she lied under oath before the grand jury, Rackauckas said.

Fleming invoked his 5th Amendment right against self-incrimination before the grand jury, Brower said.

Brower said Fleming’s targeted actions were justified. The first list, he said, was created when the superintendent was investigating whether a hacker had broken into the district’s databases. And the visit to the registrar’s office was prompted by an invitation from Registrar Neal Kelley, he said.

He also said recall proponents had threatened to sue the registrar over the invalidated signatures, so Fleming needed to learn more about the signature-gathering process and planned to use the names on the second list to conduct an independent investigation.


“That seems to me prudent planning,” Brower said.

Board President Sheila Benecke declined to comment.

Trustee Duane Stiff said he was not surprised Fleming was indicted but was taken aback to hear about McGill.

“She’s a very great lady,” he said. “I have never known her to get involved in anything like this. I think she was doing what she was told to do.”

Recall proponents were jubilant. “It’s vindication,” said Kevin Murphy, one of the original recall organizers.

Tom Russell, spokesman for the CUSD Recall Committee, called on the four longtime trustees who weren’t replaced in November’s election -- Benecke, Stiff, Mike Darnold and Marlene Draper -- to resign and threatened to launch another recall.

Rackauckas added that his office’s investigation was not complete and that prosecutors would investigate potential violations of the state’s open-meeting laws.


To see the “enemies lists,” the indictment and a memo relating to the case, visit