An investigation into whether Ontario School District Board of Directors’ member Derrick Draper’s acceptance of a secretly recorded staff meeting has come to an end, with the Malheur County District Attorney opting not to file charges against him after consulting with the Oregon Department of Justice and subsequently reviewing the incident report from Sgt. Don Ballou, of the Nyssa Police Department.
According to information received from District Attorney David Goldthorpe’s office on March 23, he first reached out to Colin Benson at the DOJ on Feb. 23 to see whether recording of a Zoom meeting qualified as “telecommunication,” as it relates to Oregon Revised Statue 165.535.
When asked whether he typically reaches out to the DOJ over crimes that are not felonies, Goldthorpe told the newspaper in an email on March 3, “I reach out to other legal minds whenever I have a new or novel issue, since it shouldn’t be something I decide alone.”
In his initial email to Benson, Goldthorpe said a “local high school principal is complaining that a participant in a recent Zoom meeting recorded it, apparently by means other than the ‘record’ feature in Zoom, which notifies all other participants they are being recorded.”
He goes on to explain that the participant then gave that recording to a school board member.
“Communications may have included confidential student info, as well,” Goldthorpe wrote. “Seems like the kind of issue that is likely to have arisen somewhere else, given the prevalence of virtual meetings this past year, so do you happen to know if DOJ has a position on this issue?”
The emails then go back and forth between the district attorney and Benson to determine what was recorded (voice only or voice and video), whether participants were aware the person recording was on the line or whether they knew the person was online but not aware that he or she was recording it.
“As you know, it is common in Oregon for one party to record phone calls without notifying other participants — police do this frequently with pretext calls and law firms, for example, routinely record all phone calls without disclosing the recording, so to help answer, I’ll need more context.”
Goldthorpe explained the person who did the recording was an “invited participant,” and that it was unknown at that point whether it was voice only or whether it was recorded with a cellphone or other device. Goldthorpe mentioned to Benson that Dan Wendel from the Department of Justice was in town for another case and he had ran it by him, with Wendel saying it came down on the side of “being a telecommunication, so therefore permitted, regardless of how it was recorded.”
To this, Benson said he agreed with Wendel and that without knowing more, it would be hard to distinguish from a regular phone call.
After being cc’d in that email, Wendel weighed in, himself.
“Since telecommunication is ‘the transmission of writing, signs, signals, pictures and sounds of all kinds by aid of wire, cable or other similar connection,’ I think Zoom counts,” Wendel wrote.
According to Oregon law, only one participant would have to consent to share the recording with someone else, paving the way for a person to record a meeting without knowledge and hand that over to someone else.
With this in mind, Goldthorpe reviewed the report, included excerpts from audio recordings between Nyssa Police Sgt. Don Ballou and staff; computer usage log, a formal request from the Ontario Police Department, emails from Elizondo with Zoom ID’s and other documents, including 17 signed complaints from staff.
Staff concerned over confidential information and breach of trust
Ontario High School staff who were interviewed during the investigation, as well as Principal Jodi Elizondo who filed the complaint, said they were concerned about whether any confidential student information was recorded and shared.
After finding out the information had been recorded without their knowledge and shared outside the meeting about 30 staff signed a complaint letter sent to the board on January 28. In addition to worrying about mishandling of student information or other potential criminal activity, staff said the action had “undermined our ability to trust one another” and was impacting the “collaborative, supportive, professional environment” needed in an educational environment.
The board responded with a letter to the staff acknowledging the concerns and encouraging employees to fall back on “established policies and procedures when they have a concern.” One of those policies, according to the board’s letter, was “prohibition of retaliation.”
However, the board did not acknowledge that one of their own had broken policy in not having that staff member follow the proper chain of command established in those policies and procedures they cited.
In a phone call with the Argus on March 18, Draper declined to discuss the recording. However, he said he wanted to pose the following question as food for thought: “Why was it so important for a whistleblower to go to the extent they did and take it to a board member?”
It is worth noting that the board did state in its reply to staff that if someone wanted to anonymously complain against admin or staff there were other channels to do so, including “union representation and outside state agencies.”
Since the DA’s decision, Draper has not returned multiple requests for comment to the Argus regarding this and other matters, and has directed the Argus through Board Chairwoman Renae Corn to speak to his lawyer, however Corn nor Draper have provided that contact information.
Nyssa Police Department handled the investigation at the request of Ontario Police Chief Steven Romero, since Elizondo’s husband, Tomas Elizondo, is an Ontario Police officer.
“I realize these investigations require highly skilled personnel and thank you in advance for committing valuable Nyssa PD resources to this request,” reads the letter from Romero to Rau.
In the incident report, Ballou indicated he read the email from Draper to the board he sent after receiving the recording and believes that Draper knows the identity of the teacher who recorded the conversation. However, when he tried to meet Draper to interview him over the matter, Draper told Ballou to talk to his lawyers instead.
According to the report, seven staff members were interviewed on Feb. 23, including Elisa de los Rios, Tyson Beggs, Sarah Huss, Caren Poff, Anne Marie Presley,Rod Williams and Ken Martinez.
It is noteworthy that several of those interviewed believe it may have been Huss who recorded the meeting, with one of them stating that was due to her having shared information with Draper in the past “due to hard feelings between building administration and herself,” and another pointing out that Huss works directly with Draper’s kids in FFA.
Huss in her interview, said she did not attend the meeting due to being in the ER, and that another staff member had filled her in, and that she couldn’t recall if there was another meeting that day.
Elizondo provided logs and Zoom ID’s from the technology department showing that Huss did attend one of the staff meetings that day, the afternoon meeting.
Elizondo told Ballou that there were two staff meetings on Jan. 20, one at 7:40 a.m. and one at 2 p.m., with only high school staff members invited. Although she couldn’t recall the full discussion of those meetings, she told Ballou that staff members had openly voiced their opinions and frustrations with the school board and its decision regarding the reopening of their school district.”
For those interested in reading the full incident report, it is available on our website inside this story.
History worth noting
This is not the first time that Elizondo has reached out to officials outside the school and board over Draper’s actions.
On Oct. 26, 2020, a lawyer representing Elizondo sent multiple letters to the Ontario School District Board of Directors warning that legal action may be incoming if the actions of board member Derrick Draper are not addressed.
The letter cited that the behavior at issue was “Draper’s attempts to utilize his position on the Ontario School Board to intimidate” Elizondo and “damage her professional reputation at Board meetings, knowing full well she does not have the same power or platform that he does at Board meetings.”
After meeting in executive session the board voted unanimously (with Draper recusing himself) to have Chairwoman Corn respond to that complaint.
Additionally OHS staff have sought relief outside the school and board, according to Ryan Roulston, who is the president of the union at Ontario High School, in an email on Feb. 25.
This included reaching out to the Oregon School Boards Association to provide a second opinion on this matter to our Board, which “in short said the reply was that the decision of our Board is final.”
Because the matter was an alleged crime and violation of board policies and not a contractual issue, Roulston said the union would not be involved.
He said other steps staff could take were “the same as any Ontario community members; we basically have two options:
1. Letters and public comments can help change the minds of the Board; and
2. When that fails, we can elect new Directors to the Board who seem like a better fit for our community.
Roulston said it is “far too early” for him to comment on who the association might support or which seats they would look to replace, however, he said it was clear, staff had “already exhausted all the detailed steps involved in option #1.”
To this he said the Association leadership is considering formally endorsing a candidate for the board.
Terms are expiring for four board members, three of whom ran unopposed in the last election (Renae Corn, Blanca Rodriguez and Derrick Draper) and one of whom (Craig Geddes) was selected by the board to fill the seat vacated by then-Chairman Mike Blackaby in July of 2020, who said he resigned from the board because they would not release findings of fact from an investigation regarding a tort claim filed by Director Eric Evans earlier that year. Rodriguez, Draper and Geddes have filed for their seats; this time around all of them will run against someone in the Special District Elections in May.