A recent court ruling has made it easier for school boards controlled by education reformers to get the legal counsel they deserve.
The case was a July 25 ruling in the case Orange County Board of Education vs Al Mijares, and it sets a valuable precedent.
In most of California’s local agencies, cities and counties in particular, the city council or the board of supervisors have the power to hire and fire the agency’s general counsel.
California’s county boards of education, unlike most local agencies in California, are uniquely structured. The law provides that the superintendent and board of trustees share the general counsel equally as clients, and the law fails to specify the process by which they should go about hiring the person who represents both of them. This means that in a typical California county board of education, there is one general counsel with a fiduciary obligation to two bosses, equally, one is the superintendent, the other is the board of trustees.
In practice this can mean that if a majority of the trustees on a county board of education are in disagreement with the superintendent on a policy matter requiring a legal opinion, the school district’s counsel has an unavoidable conflict of interests. They cannot represent both of their bosses, the superintendent and the board of trustees, when their bosses are in conflict.
In Orange County’s case, the dispute arose when the board of trustees hired separate counsel instead of using the services of the attorney hired by the superintendent. The board of trustees was able to demonstrate to the court that in areas of disagreement between the superintendent and the board, the attorney the superintendent had hired was going support the superintendent’s positions. The court agreed, and ruled that the Orange County Board of Education was obligated to pay this separate counsel.
For education reformers who have secured a majority on a county board of education, this means that if at any time a conflict emerges, based on this ruling, they can hire and pay a substitute general counsel to report exclusively to the trustees.
Most of the time, this can only be for narrowly defined issues where there is a conflict. But in the Orange County case, the board of trustees used the substitute general counsel for everything that a general counsel would do. Why? Because the general counsel selected by the superintendent was not trusted to do any work for the board of trustees because, as alleged in the case, he was hired with an obvious conflict of interests and without any consultation with the board.
Even narrowly defined issues, however, can be of great significance. The legal advice received from counsel can potentially have a decisive issue on board decisions relating to approval or renewal of charter school applications. It can potentially apply to oversight policies, or parents rights, choice curricula, or negotiations with teachers unions.
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