Ting-Yi Oei, the assistant principal at Freedom High School who was accused of possessing child pornography last year and later found innocent, has requested the Loudoun County School Board “…indemnify him for fees and expenses he incurred in defending himself against criminal charges that arose out of actions he took in the discharge of his duties.” The request was presented as an action item on the School Board’s Tuesday, June 23 meeting.
According to accompanying documents, Virginia Code §22.1-83* provides Oei such recourse. Oei is seeking $167,621.64 for legal fees and expenses to pay for legal services rendered in his defense in the criminal cases lodged against him as an LCPS assistant principal.
In an April 2009 letter to the Loudoun County School Board, Oei’s attorney Jim Faughnan also characterized the case against Oei as “ …a purely political battle between the prosecutor and LCPS administrators.” Faughnan noted the damage to Oei’s reputation, “…in an instant by the false accusations made against him during this horrific ordeal,” and urged School Board not have Oei’s family bear the financial burden of defending himself in what he described as a charade. “Fairness and integrity require otherwise,” he added.
Faughnan described the “devastating financial impact of these outrageous criminal proceedings,” as well as the “chilling effect on other educators in LCPS…and school systems throughout the country.”
Loudoun County Circuit Court Judge Thomas Horne ultimately ruled in Oei’s favor, dismissing the charges. Faughnan stated that while Oei’s legal ordeal was over, his nightmare continues. “Tragically, Oei will likely never be able to fully restore his reputation or return to his life as he knew it prior to this atrocity,” wrote Faughnan, adding that the Oei family must struggle with the financial burden resulting from the “…outrageous criminal charge which arose out of actions he took in discharging his duties as an assistant principal with the knowledge and at the direction of his principal.”
Faughnan contends that “each of the criminal charges brought against Mr. Oei relate to the single photo that he obtained for LCPS only after he was directed to do so by his principal.” Christine Forrester is–and was at the time of the “sexting” incident–the principal of Freedom High School. Oei was subsequently charged with Failure to Report and Possession of Pornography in connection with his actions as Freedom High School assistant principal. Judge Horne subsequently dismissed all charges against Oei in a March 2009 ruling.
The Loudoun Independent covered the course of the Oei prosecution in depth, including a post-dismissal interview with Oei. This prior coverage is available online at www.loudouni.com.
E. William Chapman, Division Counsel, for Loudoun County Public School (LCPS) has recommended the school board provide Oei a reimbursement of $60,000, and challenged some of the legal expenses.
An interesting aside to this case would be cost to Loudoun taxpayers for the Commonwealth’s Attorney prosecution of the case against Oei, as well as any ancillary costs associated with the Loudoun Sheriff’s office, investigations, court time and costs.
Oei is seeking payment for legal fees resulting from the defense he sought in the two criminal cases – which were both ultimately dismissed. During the almost yearlong journey from when the charges were filed to Judge Horne’s dismissal of all charges against him, Oei was removed from his position as assistant principal at Freedom and worked elsewhere and apart from LCPS students. With Judge Horne’s ruling, Oei returned in the spring of 2009 to Freedom High School, and his former position as assistant principal.
Defense Costs Mount
In May 2008 Oei was charged with “Failure to report suspected child/abuse neglect in violation of Virginia Code §63.2-15095.” Oei was represented by the law firm of Quagliano & Seeger – Jim Faughnan responsible partner, and by participating attorney, Jamie Mastandrea of Jamie A. Mastandrea P.C. in the Failure to Report case.
Oei is seeking $8,900 and $19.27 in expenses to Mastandrea and $23,100 and $200 in expenses to Faughnan, representing 35.6 hours and 109.5 hours respectively. Hourly fees are listed at $200 and $250, depending on lawyer or associate.
Oei is also requesting payment of $117,775 and $17,627.37 in costs of legal fees to Attorney Steven David Stone, who represented Oei in the Possession of Pornography case. Stone’s services are billed at $300 per hour.
The School Board is asked to reimburse Oei for those expenses totaling $167,621.64, a reduction from the original $184,821 requested in an April 2009 letter from Jim Faughnan.
School Board members received several documents and exhibits pertaining to the request, including billing statements for services rendered in the two criminal cases as well as a summary of Oei’s ordeal.
Attorney Faughnan provided a 41-page summary and history of the Oei case, beginning with Oei’s actions in April 2008; subsequent charges against Oei; dismissal of charges; new charges; investigations; and the decision by Judge Horne in March 2009. Horne ruled the criminal charges brought by Commonwealth’s Attorney Jim Plowman and staffs were “unsupportable as a matter of well-settled law.”
School Board members also received a memorandum from LCPS counsel William Chapman regarding Oei’s request for payment of legal fees and other expenses. Chapman provided his own summary of the Oei case, and a recommendation for payment at a much-reduced amount: $60,000, as opposed to the $167,621.64 requested.
Chapman acknowledged that Oei was subjected to two separate consecutive prosecutions: first in the Loudoun County Juvenile and Domestic Relations District court (the Failure to Report case), and then in the Loudoun County Circuit Court (the Possession of Pornography case).
Oei was represented by different counsel in these cases. The Failure to Report case commenced on May 5, 2008, when he was charged with failure to report suspected child abuse/neglect in violation of Va. Code § 63.2-1509.
“The conduct that gave rise to the charges against Mr. Oei “clearly were acts committed by him in the discharge of his duties and all of the charges were dismissed so that the statute applies,” said Chapman. “The Board should reimburse him for fees…the question as to the amount of such reimbursement is not as easy. I recommend that the Board reimburse him in the amount of $60,000.”
Chapman challenges the need for two law firms to represent Oei against the Failure to Report charges, writing, “With respect to the Failure to Report charge, the nature of the case did not require the skills and manpower of two law firms. A review of the detailed billing statements for the two firms indicates that a substantial amount of time was spent by communicating with co-counsel.”
Chapman also challenged some of the billed hours in the “Possession of Pornography” charge, specifically that more fees and expenses were generated than should be considered reasonable. “The billing statements also indicate that Mr. Oei was billed for time that the attorney (Stone) spent in media interviews and dealings with the press,” Chapman maintained. “He (Oei) was billed for 98 hours of legal research performed for the firm by an outside vendor and research materials (books) were included in the billings (approximately $500).”
Chapman also advised School Board members that Oei would receive “$35,000, and maybe $70,000” from an insurance policy provided through the Virginia Education Association.
Regardless of the School Board decision to reimburse Oei for all or some of the legal fees associated with his defense, attorney Faughnan’s summary of the cases against Oei fires a salvo against Loudoun Commonwealth Attorney Jim Plowman and his office; against the Loudoun Sheriff’s office; and indirectly against Oei’s immediate supervisor, the FHS Principal Forrester, who was noticeably absent in Oei’s public defense.
In summarizing Oei’s cases, Faughnan begins with the fact that the charges brought against Oei all stem from the actions he took in regard to “ a legitimate school investigation involving rumors of ‘sexting’ at his school,” related to a single photo of an unidentified female on a male student’s cell phone.
In April 2008, Oei – and other LCPS employees, including the school safety and security specialists–learned that a male student had a photo of an unidentifiable female on his cell phone. The male student reported the photo had been sent to him anonymously. The photo depicted a female from just below her shoulders to her thighs. She was wearing underwear and had her arms folded across and over her breast. “There was no face or head depicted,” according to Faughnan’s letter.
The male student also denied knowing the identity of the female in the photo, although it was rumored the female was also a student at FHS.
The student then suggested he text the photo to Oei’s cell phone, which he did. Oei then emailed the photo from his cell phone to his school email address–again with the male student’s assistance. Oei then had the student delete the photo from his cell phone.
A school investigation conducted by Oei and the school security specialist included interviews with the student rumored to have been the subject of the photo, and the student rumored to have taken the photo. Both students denied any participation or knowledge of the photo. Oei then concluded that the photo was not of a Freedom HS student, and reported the findings to the school principal.
According to Faughnan, the mother of the male student who had the cell phone with the photo advised the Loudoun County Sheriff’s Office, and two investigators interviewed Oei at the school and saw the photo on Oei’s cell phone. The investigators returned the cell phone to Oei, and did not advise him of any wrongdoing.
Subsequently Loudoun investigators determined that the female pictured in the photo was indeed at FHS student, and that her boyfriend had taken the photo. The female student then “voluntarily went to Mr. Oei’s office and apologized to him for having lied during the school’s investigation. Mr. Oei then counseled her about the dangers of sexting,” and the father of the male student apologized to Oei for his son's deceitfulness during the school investigation, according to Faughnan.
Yet, the case does not end there. Instead, Faughnan contends that although neither Oei nor LCPS did anything wrong or illegal, “Mr. Oei became the target of a misguided prosecutors office that threatened the bring and ultimately did bring fourth outrageous criminal charges against because he refused to resign his position and plead guilty to a crime that even the prosecutor’s office knew Mr. Oei did not commit.”
Faughnan points to statements by Loudoun County Sheriff’s Office that based on their investigations, the photo on the cell phone did not constitute child pornography, as well as the fact that no charges filed against Oei in the course of their investigation.
He also challenges the basis of the Commonwealth Attorney’s initial charge of Oei’s “failure to report suspected child abuse,” noting that under Virginia mandatory reporting statue – VA Code §63.2.1509 Oei satisfied his reporting obligation” if he/she timely reports the incident to the person in charge of the institution” –in this case the Freedom High School principal. Faughnan countered that by his actions, Oei “complied with the mandatory reporting statute.”
“It appears that the prosecutor brought this charge in a misguided and thinly-veiled attempt to teach LCPS administrators that they should in lieu of conducting internal school investigations, refer matters such as this to law enforcement for investigations, wrote Faughnan.
Indeed, the prosecutor expressed his frustration with LCPS administrators, stating that in the past, school administrators preferred to conduct internal investigations related to matters that he believes should have been reported to law enforcement.
“Thus it appears that Mr. Oei was simply a pawn in the institutional battle between the prosecutors’ office and LCPS administrators, and the prosecutor was apparently, attempting to advance his agenda by demonstrating to LCPS officials what happens when they do not acquiesce to his request,” Faughnan wrote.
Another twist in the case occurred on June 12, 2008 when the Commonwealth Attorney’s Office filed its “Motion to Nolle- Prosse” and agreed to “voluntarily” dismiss the “Failure to Report” charge, and even expedite the dismissal of the failure to report charge. However, a few hours later and “without explanation,” the Commonwealth’s Attorney’s Office changed its position and withdrew the Nolle – Prosse unless Oei plead guilty to failure to report charge and resign his LCPS position, or face a felony possession of child pornography charged. Oei refused.
Faughnan conjectures one possibility for the prosecutors’ action–press inquiry into why the charges, and then the dismissal of charges –which may have prompted the reversal of announced dismissal.
“As deplorable as it may seem, it appears that the prosecutor brought the subsequent felony charge – possession of pornography – against Mr. Oei in an attempt to avoid potential negative publicity associated with his decision to bring the initial unsupportable failure to repot charge,” wrote Faughnan. “Tellingly, the prosecutor failed to bring a child pornography charge, or any other charges against any other person connected to the photo.”
julia@loudouni.com
*
Va. Code §22.1-83 according to attorney documents: “If an employee of a school board is arrested, indicted, or otherwise prosecuted on any charge arising out of any act committed in the discharged of his duties as such employee and such charge is subsequently dismissed… the school board may pay the legal fees and expenses of such employee.”
There is so much blame to go around, it's hard to know where to begin. First, of course is the incompetent, overzealous and egotistical prosecutor, James Plowman. His poor grasp of the law, coupled with his vanity and self-righteousness led to the near destruction of an innocent man's reputation, not to mention an increased tax burden on the citizens of Loudoun County. He should be fired immediately as I doubt he has the integrity to resign. Secondly, Christine Forrester behaved in an appalling and cowardly fashion. It is clear after reviewing the genesis of the case that she threw Mr. Oei to the wolves in a disgraceful effort to cover her own derriere. Word in Freedom High School's corridors--"Ms. Forrester threw Mr. Oei under the bus." Ms. Forrester owes Mr. Oei a public apology. She should sit down right now and write an open letter apologizing to Mr. Oei and submit it to every newspaper in Loudoun County. Thirdly, the Loudoun County Sheriff's Department, aka The Keystone Kops, have wasted taxpayer's money with their inept investigation which was spurred by an obviously bitter and angry parent who didn't like the fact that her precious little boy was suspended for pulling down the pants of another student. Barney Fife would feel very much at home in the Loudoun Sheriff's office.
I am comforted by knowing that everyone (except dyed-in-the-wool Plowman boosters) supports Mr. Oei and understands that an egregious injustice was committed by Jim Plowman. I feel certain that Mr. Oei will come out of this a stronger person. The respect he commands in the community can only grow. I cannot say the same for the aforementioned irresponsible government officials who should be begging all of us for forgiveness.