Mary Dewan, who was fired “without cause” last week as the Santa Clara County superintendent of schools, has initiated a legal challenge to her termination.

On Oct. 4, two days after the county Board of Education voted privately 4-2-1 to dismiss Dewan after six years leading the county Office of Education, she demanded reinstatement, claiming the board violated California’s Brown Act and had no authority to fire her.

No reason was given for the termination, although some published reports suggested there was some concern about the diversion of funds to boost the county’s Head Start early childhood program.

In an email to the board, San Jose lawyer Steven Ellenberg, a partner in the Lathrop GPM law firm acting on behalf of Dewan, said the board “wrongfully and unlawfully met in closed session” in July, August and September with attorney Ash Pirayou “reputedly to discuss anticipated litigation,” even though “no litigation was anticipated.”

That email, “a notice and demand to cure,” is the first step in legal proceedings alleging violation of the state’s open meeting law, which could lead to legal action by the district attorney against the elected board of education.

As Dewan sat outside of the closed session late Wednesday night, she was told by a member of the public, who is a personal friend of one of the school board members, that the board was going to fire her.

In the first of two separate statements released Oct. 3, the board announced that it had voted to “terminate [Dewan] without cause.”

A second more detailed statement said the board voted 4-2 with one abstention to “terminate the county superintendent’s appointment per her employment contract without cause upon 30 days’ written notice, pursuant to…her employment contract, and placed her on 30 days’ paid administrative leave,” plus an unannounced severance package.

Transparent California reported Dewan’s annual 2023 salary at $390,373.

Dewan and the board had been feuding for several months, but the late night vote took her by surprise.

“During her six years of service, Superintendent Dewan has placed a high value on cultivating systems for communication and collaboration, championing a culture that was focused on teaching and learning, as well as promoting social-emotional well-being, and health and wellness both in and out the classroom,” the board said in a rosy expanded announcement, which ended with, “the Board of Education thanks her again for her work.”

In a statement a few hours later, Dewan appeared conciliatory, saying: “It has been a complete honor and privilege to serve Santa Clara County, its schools, community, staff and students. I have dedicated my life to service of our community and hold the work of the County Office of Education in high esteem. I am incredibly proud of all we have done together to advance equity, inclusion, diversity and partnership.”

Disagreements between some board members and Dewan had roiled the board for months, leading to an offer by Pirayou in August that the board hire a mediator to resolve contract issues. In her lawyer’s Oct. 4 email to the board, Dewan said that Pirayou had told her last month the board would consider appointing a mediator at its first meeting in October. Instead, at that meeting she was fired.
Board President Maimon Afzal Berta led the dismissal vote, joined by trustees Don Rocha, Joseph Di Salvo and Grace Mah. Trustees Victoria Chon and Tara Sreekrishnan voted against the motion and trustee Raeena Lari abstained.

In his email to the board, Ellenberg – whose wife is county Supervisor Susan Ellenberg – listed these unlawful actions by the board:

• Five private sessions in July, August and September for the stated policy of pending litigation when no litigation was anticipated.
• At unknown dates and times, in unknown locations or by unknown electronic means, as a group or through serial meetings, a majority of the members of the board of education met in unlawful closed session meetings, for which meeting agendas were not publicly posted as required by state law:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”

• The board said its Oct. 2 closed session would discuss “Public Employee Discipline/Dismissal/Release,” but the county superintendent of schools is not, strictly a regular county employee, but rather “an appointed constitutional officer of the State of California… not a public employee.” The board, Dewan contends, only has jurisdiction under the state constitution to monitor the county school service fund, and to hear appeals relating to interdistrict student transfers, student expulsions and denial of charter school petitions – far more limited than the jurisdiction of K-12 school district boards.

“The Santa Clara Board of Education has no legal authority under either the Constitution of the State of California, or under the California Education Code, to employ a county superintendent of Schools,” one of only five counties that have appointed county superintendents of schools. “All other county superintendents of schools are elected.” In Santa Clara County, the superintendent of schools is an appointed constitutional officer, “not a public employee.”

The board, according to Dewan’s attorney, had no right “to discuss, to deliberate, and to take action to terminate Dr. Dewan.” “The board “may choose to not extend Dewan’s term, but it may not elect to reduce her.” the email said.

Last month, the Santa Clara County Office of Education received the Large County Office of the Year award from the California County Superintendents​ last month at the 2024 annual awards.

“The award recognizes the [Office of Education’s] work on diversity, equity and inclusive initiatives; whole child implementation; students with disabilities; supporting arts education; and other work that leads best practices in the state.
A month before her termination, Dewan was presented with the Outstanding Individual Achievement Award from the national Association of Educational Services Agencies.