Education leader Joseph Di Salvo is dropping his lawsuit against the Santa Clara County Board of Education and fellow trustees who voted in July to censure him, but Di Salvo says the fight is far from over.
“I am 100 percent innocent of the alleged charges,” Di Salvo told San Jose Spotlight Sept. 24. “The resolution itself was stacked with lies and misrepresentations of what happened. I was feeling injured and I still do. I still have very bad feelings about it all.”
According to court documents, the federal case was dismissed Sept. 23 without prejudice — meaning Di Salvo can try the case again.
Di Salvo’s attorney, Frank Ubhaus, said litigating the federal lawsuit would have been costly and time consuming especially because the school board would likely have responded with an anti-SLAPP motion, which allows defendants to dismiss a complaint based on the defendant exercising their free-speech rights.
Instead, Ubhaus said he’ll refile the lawsuit in Santa Clara County Superior Court and demand a judge determine if Di Salvo received a fair hearing and due process before being censured.
“What we decided is rather than litigate an anti-SLAPP motion, we decided to refile this in the Santa Clara County Superior Court to ask the court to direct the board to set aside the (censure) resolution and provide Joe with a fair hearing,” Ubhaus said. “It’s a practical decision that I advised and we’re hardly giving up. The petition in superior court will accomplish everything we want to accomplish.”
Ubhaus said he plans to file the new lawsuit in the next couple of weeks.
“We went with the sledgehammer when the scalpel would do,” he added.
The legal battle began after a 4-3 vote by the board this summer to censure Di Salvo, who has served as a trustee since 2008. He became the subject of an independent investigation for racial and gender harassment after two trustees and two staff members complained about him to the county superintendent in January.
They claim Di Salvo’s behavior toward women who disagree with him is heated, dismissive and demeaning.
Board President Claudia Rossi, trustees Kathleen King, Rosemary Kamei and Peter Ortiz voted to censure Di Salvo. The four trustees were named in the federal lawsuit filed in August, claiming Di Salvo’s free speech and due process rights were violated.
Trustees Grace Mah, Anna Song and Di Salvo opposed the censure.
Di Salvo says the trustees voted blindly to censure him without seeing the investigation’s summary or evidence. He also says they denied him the opportunity to have his attorney present during the vote.
“They didn’t know what was in the summary document,” he said. “I don’t feel like that was due process in any way, shape or form.”
Among other incidents, Rossi said Di Salvo in 2017 launched into an argument with then-vice president Kamei for picking her to be first to speak on Promise Academy’s petition to open a charter school. A six-page summary of the independent investigation, obtained by this news organization, detailed a number of incidents where “Di Salvo’s behavior was motivated in part by gender.”
Despite claims of unfair treatment, Rossi told San José Spotlight in August Di Salvo was afforded every opportunity to respond to the allegations.
“He had legal counsel throughout (the investigation),” Rossi said in a previous interview. “I’m disappointed that rather than apologizing to the employees who were made to feel discriminated, this is what he’d seek to engage in.”
Di Salvo is up for re-election this year.