One Probe in Death of Retarded Boy Ends : But Education Dept. Holding Report Until D.A. Decides on Action : MARK LANDSBAUM

The Orange County Department of Education has concluded its internal investigation into the May 1 death of a retarded 14-year-old boy at the Gill Education Center in Huntington Beach.

However, the investigation’s findings will not be presented to the county Board of Education until the district attorney decides whether to file criminal charges in the case, Lynn Hartline, education department assistant superintendent, said Tuesday.

The department’s investigation focused on the county personnel present when Barth Pico, a retarded and autistic resident of Fairview Developmental Center in Costa Mesa, was restrained after throwing a tantrum. The boy later stopped breathing and was pronounced dead three days later.

Meanwhile, Fairview administrators met Monday with an attorney for Jeanne Warnecke, who was fired from the state facility May 29 for “misutilization of techniques.” The meeting was required before Warnecke’s formal appeal to the state Personnel Board in which she seeks reinstatement to her job, according to her attorney, Cecil E. Ricks Jr.

Ricks said the appeal may not be heard by an administrative law judge until August, partly because of the added emotional stress it could pose for Warnecke, who is in her third trimester of pregnancy.

Ricks said Warnecke acted properly in restraining Barth by putting him in a folded exercise mat and shielding the boy’s eyes with a diaper taped around his head like a turban. Both procedures, Ricks said, are approved in Fairview policies for “assaultive” situations to protect the youth and others. During the tantrum, Barth threw furniture and struck another child, Ricks said.

Contrary to police reports, Ricks said, Warnecke did not sit on Barth once he was restrained in the exercise mat. Ricks said, however, that Warnecke sat on the mat, but in a way that did not apply pressure to the child.

However, Louis Serrao, Fairview clinical director, said Tuesday that the mat and screening of a child’s vision are never permitted to be used in combination. Even when used singly in emergency situations, oral or written approval is required, he said.

Meanwhile, a spokesman for the district attorney’s office said Tuesday that the case is still under review. On May 21, the district attorney’s office found “insufficient evidence to support any criminal homicide prosecution.” But at the direction of Dist. Atty. Cecil Hicks, Chief Deputy James Enright was ordered to review the matter to determine whether there was any criminal negligence involved.