Superintendent postpones hiring of in-house counsel | News | Palo Alto Online |


Superintendent postpones hiring of in-house counsel

New legal-services position becomes point of contention on school board

Palo Alto Unified School District Superintendent Max McGee has decided to delay the hiring of general counsel after disagreement on the school board over the proper relationship between its members and the new in-house attorney.

On Tuesday, Oct. 13, at the request of board member Camille Townsend, the school board discussed for close to an hour possible reporting structures for the general counsel, a new position the board approved in June.

McGee then wrote in his latest "Weekly" message on Friday, Oct. 16, that he was "disheartened" by the board's "extended" discussion. He stated he would be pulling the item from the board's next meeting agenda, when members were to determine to whom the attorney would report, and postponing the hiring process until May when the board reviews all of its law-firm contracts.

"We are currently being well-served by our regular attorneys, and while a GC (general counsel) would save some money as well as be of assistance, at this point it is not of critical importance," he wrote.

McGee had proposed that he assume primary responsibility and oversight for the general counsel but that there be a "dotted line" on the district's organizational chart from the attorney to the board. The dotted line -- rather than the solid one to the superintendent -- indicates "a relationship of particular importance where there is a high level of accountability but not direct reporting or authority over the position," McGee wrote in a staff report for the Oct. 13 meeting.

"Having to answer to five 'bosses' when it comes to giving advice to the district is also quite impractical for any attorney, which is yet another reason that questions are usually asked through the superintendent," McGee wrote.

A majority of the board expressed support for McGee's recommendation. However, Townsend -- the only board member to vote against the creation of the general counsel position in June and who requested the Oct. 13 agenda item -- said she would prefer only a direct, solid line to the superintendent.

Townsend said that lawsuits the district has faced in recent years, particularly over U.S. Department of Education Office for Civil Rights cases, have been "very political" and that she is "very concerned about the political nature of this position."

"I would like legal counsel to answer to the superintendent and not to the board, which is inherently political," Townsend said.

This, however, contradicts the board's own bylaw on attorneys. Bylaw 9124 states that while the board should have a limited relationship with its attorneys -- only the board president or superintendent can seek direct legal advice from counsel, for example -- the board is involved in the hiring, evaluation and potential renewal or termination of contract of an attorney.

California Education Code also provides that the governing board of a school district may appoint legal counsel to advise the superintendent and the board and to act as legal counsel for the district.

Townsend also repeated concerns she raised in June about the generalist nature of the position. She said that the board should understand it will likely need to continue to employ external, specialized legal firms for particular topics, such as around federal civil-rights law Title IX or special education.

"The field of education demands increasingly specialized legal expertise, which comes from outside counsel, and outside counsel is more fiscally sound for many reasons," Townsend wrote in an email to the Weekly on Monday. "As the legal field itself demands this competence and specialization instead of in-house counsel, so too do school districts across the state and country."

She also expressed concern about how individual board members might interact with counsel and said she wanted to be informed of any such interaction, though under board bylaw, individual board members cannot contact attorneys directly for legal advice unless authorized by a majority of the board.

Board member Ken Dauber opposed Townsend's recommendation that general counsel have no reporting relationship to the board. He noted that under board bylaws, the relationship between the board and an attorney is the same whether the position is internal or external.

"We have to live within the parameters that are set by statute and by our own bylaws," Dauber said at the Oct. 13 meeting. "Those don't allow as a first cut a relationship between the attorney and the superintendent that does not involve the board because the board is the client of the attorney, and so the board is responsible by statute for appointing and evaluating the attorney."

McGee told the Weekly that the "debate is over the dotted line. I think everybody agrees with the bylaw about the direct report to the superintendent."

Other California public school districts, including San Francisco Unified, Alameda Unified, Oakland Unified, Los Angeles Unified, San Diego Unified, Ventura Unified and others employ general counsel with a range of reporting relationships, though none have an in-house attorney that reports only to the superintendent, as Townsend proposed.

San Francisco's and Los Angeles' general counsel report to both the board and superintendent, with a dotted line to the board. Oakland's reports to both the board and the superintendent. Alameda's in-house attorney reports only to the board. San Diego Unified's general counsel reports to the board with a dotted line to the superintendent.

Board President Melissa Baten Caswell, however, said on Oct. 13 that the California School Board Association (CSBA) "had a very hard time" finding districts with a "dotted line" relationship between the school board and legal counsel or any direct report beyond the superintendent.

"I don't think this is a common practice," she said.

Baten Caswell told the Weekly Monday that she could "live" with the dotted line relationship but thinks that it creates unnecessary complexity. She said her experience in large organizations she worked for that had such a structure was that it produced confusion.

Board Vice President Heidi Emberling said in an interview that she didn't understand why there was any debate over the reporting relationship. She sees it as parallel to the way the board interacts with any top staff, such as the chief budget officer or associate superintendent.

"To me it just seems like the relationship is outlined in the board bylaw, and whether we have a dotted line or not is irrelevant," she said.

Given the disagreement on the board, which McGee said would take at least two more meetings to resolve, and the fact that applications for the general counsel position closed in late August, McGee said this week he plans to reopen the applications in the first quarter of the 2016 calendar year.

When asked why the board has to vote on an organizational structure when the board-attorney relationship is already outlined in a bylaw, McGee said, "The fact is the (board) member asked for it to be brought to the agenda and we put it on the agenda."

McGee first proposed in June that the district hire in-house counsel to save the district money amid sky-rocketing legal fees and to make the organization more efficient and effective in handling legal matters. The district's legal expenses for the 2014-15 year totaled $884,119, according to McGee.

The general counsel's primary responsibilities would be to advise the district on topics like labor and employment; employee and student discipline; the Brown Act and issues related to the U.S. Department of Education's Office for Civil Rights. The counsel would also investigate formal complaints filed by district families and serve as an ombudsman for "informal but potentially serious complaints"; respond to Public Records Act requests; and review and approve work completed for the district by outside legal counsel, according to a district staff report.

McGee said Monday he would like to have a general counsel hired by July 1, 2016. He has indicated that two board members would serve on an interview panel for the position.

"We'll just take a deep breath and bring it back after the new year," he told the Weekly.

This story was updated to include new information from the district and board members as well as to correct inaccurate information that stated the San Francisco Unified, Pasadena Unified and Los Angeles Unified school districts employ general counsel who report directly to their superintendents. Pasadena Unified does not employ a genera counsel, and San Francisco and Los Angeles' general counsel report to both the board and superintendent, with a dotted line to the board.

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8 people like this
Posted by Proc
a resident of Community Center
on Oct 20, 2015 at 12:05 pm

Usual Palo Alto Proctology, er Process.

16 people like this
Posted by Cassandra
a resident of Another Palo Alto neighborhood
on Oct 20, 2015 at 4:11 pm

"The general counsel's primary responsibilities would be to advise the district on topics like labor and employment; employee and student discipline; the Brown Act and issues related to the U.S. Department of Education's Office for Civil Rights; investigate formal complaints filed by district families and serve as an ombudsman for "informal but potentially serious complaints"; respond to Public Records Act requests; and review and approve work completed for the district by outside legal counsel, according to a district staff report. "

This sounds more like the district wants their own attack dog to work in the interest of underperforming or even misbehaving employees, so they can act with impunity and without scrutiny. I might have felt differently if McGee had come in and cleaned house, but his lack of interest in really understanding or reconciling for past transgressions (that continue to affect district families) has made this move seem only ominous. You CANNOT have an obudsman who only answers to the superintendent. This is what the assistant superintendent was, and we all know how well that went. You can only have an ombudsman who can truly be independent, with teeth, on behalf of the aggrieved against power.

Any moves in which our district further entrenches power in a few positions with no accountability are a guaranteed disaster. Families should be downright afraid of this. Imagine you have a depressed child, and you now have to hire expensive attorneys of your own in order to get the accommodations you need, or just leave the district and the only friends your child has ever known, because otherwise the district will sick their already retained lawyer on you. People in the district already have too much power, and too much ability to abuse legal.

McGee's administration is continuing a pattern of being even worse than Kevin Skelly's when it comes to records requests. I'm guessing having legal on board will make it easier for them to skirt their obligations, again, not something families should be paying for when the purpose of the school district is to serve families and education their children.

The fact that legal is viewed as mainly serving administrators rather than serving the interests of families, first and foremost, is why this setup is wrong.

A school district exists to serve families. We should be looking at which local districts pay the least in legal fees and have the happiest families, and try to emulate them. Apparently, none of them have in house council.

24 people like this
Posted by You've been well-served
a resident of Adobe-Meadow
on Oct 20, 2015 at 8:54 pm

Max McGee wrote in his Weekly to the board that ""We are currently being well-served by our regular attorneys."

I cannot for the life of me even begin to imagine how McGee wrote that sentence. Just last week, the Weekly wrote a 30,000 word coverstory about how terribly the lawyers for the district had mishandled the Title IX and personnel investigations into Paly teacher Kevin Sharp, who was accused of grooming a Paly student for the purposes of having a sexual relationship with her. Those same lawyers, whose antics in botching the Title IX case were chronicled in painstaking detail are now those who McGee lauds as serving us well.

I am astonished and also appalled. Either he is truly clueless or he is just assuming that the parents of this community are stupid, not paying attention, don't care about millions being paid to the lawyers -- I don't even have a theory of how McGee could type that sentence.

Did he look at his screen as he was typing and smirk and think "there's one born every minute?"

12 people like this
Posted by Cassandra
a resident of Another Palo Alto neighborhood
on Oct 21, 2015 at 10:32 am

This legal issue is really important, because it brings up the whole spirit and culture of the district. Does the district really exist to serve families and educate children? Then the primary mechanisms should function to do that best, not create a structural antagonism and inherent adversarial relationship when there are special needs (of all kinds). That structural antagonism ONLY benefits underperforming employees such as in the whole OPM fiasco. You would think the OCR was the FBI by how the district responded, rather than the Department of Education trying to help the district do the right thing by our children.

There is far too little accountability in our district office already, giving them an attorney at their disposal, without rooting out the bad culture, the bad apples, and bad practices, is a train wreck in the offing. There especially needs to be CLEAR boundaries, so district legal could not essentially be personal lawyers for misbehaving or underperforming employees, which is what happened with our paid lawyers under the last administration, and continues unchanged today.

Who is going to ensure that mechanisms are in place so that every last aspect of the district administration is geared first and foremost to serve our children and families, resources for our children and families, and that there are checks and balances? What mechanisms will ensure power isn't abused? If we don't want OCR in our business (ugh for even having to say that), then we need to step up to the plate. This isn't it.

13 people like this
Posted by You've been well-served
a resident of Adobe-Meadow
on Oct 21, 2015 at 10:53 am

@Cassandra, I agree with you that it could be really bad to give them their own lawyer. I am not sure if you realize this but they already have their own lawyer. In fact, they have many of them, at three different firms, costing the taxpayers over a million dollars per year for their totally crap advice. At least a GC would be cheaper for the same advice -- meant to be CYA but actually the opposite of that, exposing the district to extra liability and also public humiliation.

Literally we could not do worse than the [portion removed] we currently have with a meter running. Those are the ones McGee says are "serving us well."

I also reject the idea that one board member should be able to stop something from happening that four other board members had a public vote on. There was a vote, and Ms. Townsend lost that vote. [Portion removed.]

This board is so awful. And now they have allowed Camille to snatch away the one hope that they had for better run meetings which was to have a district lawyer there to keep them on the beam like Molly Stump does for PACC.

9 people like this
Posted by Cassandra
a resident of Another Palo Alto neighborhood
on Oct 21, 2015 at 4:56 pm

If you have a growth mindset, what's publicly humiliating about recognizing problems and solving them? The only public humiliation came from underperforming individuals trying to hide things and pretend like everything is always perfect. In a big school district, there will be problems that need solving.

The board can contract with county counsel. We should run, not walk, to them and do this!! It will save us money, and they are more likely to give impartial, sound legal advice that is gives priority to making our school district run properly instead of being expensive CYA.

We should also never bring in in-house council without strict checks and balances to avoid counsel being used as individual counsel against the interests of children, as has happened with this OPM mess. The OPM mess wouldn't have cost us all that money if individuals had been unable to use them like their own personal lawyers because of their own professional purposes and personal "embarrassment". Their personal embarrassment was nothing to the horrible things they did to many families that you will never hear about, because McGee has no interest in pursuing it, and most people prefer to educate their kids rather than sue. But mark my words, making this situation worse will mean that when the suit happens, it will be a whopper, and the district will lose, despite its in-house counsel. (McGee surely feels confident that will never happen, having confused this town's perennial support of school tax measures with approval of hiding up misdeeds. The Weekly should pay penance for that one.)

10 people like this
Posted by Cassandra
a resident of Another Palo Alto neighborhood
on Oct 21, 2015 at 5:03 pm


I guess more to the point, what interest does a school district have in spending hundreds of thousands of dollars in order to protect an administrator from "embarrassment" because of how that administrator misbehaved? Seriously, do we have contracts with those administrators? The boundaries on using district legal time should be better spelled out, and personal uses like that should be prohibited. In a situation like that, I don't think Stanford would use its legal time, they'd make employees spend their own money.

A contract with county counsel is the best alternative by far. The superintendent just doesn't want to do it because it would mean the end of the coverup culture -- which he has only been engaged in in many ways worse than his predecessor and no one is holding him to account for.

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