Palo Alto school board Vice President Melissa Baten Caswell is asking her colleagues to consider additional conflict-of-interest policies that would prevent a school board member from participating in any district matter that involves a campaign donor of $250 or more or an organization for which the member had previously worked as an employee or consultant.
Caswell, who suggested the policies in emails to Superintendent Max McGee on Oct. 14, said the idea came from multiple "constituents" who wondered why the limitations weren't part of the current district's conflict-of-interest policies. She declined to identify the constituents or their specific concerns, but she has pushed for it to be considered in spite of McGee's advice that there is no need and that it distracts from other important work.
The proposals put forth by Caswell were drawn from a federal executive order pertaining only to individuals appointed to federal executive branch positions and from a California state law that also applies only to appointed officials. Neither deals with the right to participate of an elected official, such as a school board member.
Existing conflict-of-interest law pertaining to elected officials is based on whether the official has a financial stake in the outcome of a decision he or she is making, and the California Political Reform Act spells out a detailed set of requirements for disclosing economic interests that could create conflicts.
A 34-year old court decision has already ruled the first part of Caswell's proposal unconstitutional. Any limitations on the participation of elected officials based on campaign contributions they received was found to be a violation of the First Amendment rights of the contributor by the California Supreme Court in 1980.
Caswell's Oct. 14 email asked McGee if the board's policy-review committee (BPRC) had discussed adding the provisions she referenced to the district's conflict-of-interest policy, which was on that evening's board meeting agenda for routine biennial approval.
McGee's assistant, Kathleen Ruegsegger, responded by email two hours later to Caswell stating she had called the County Counsel after receiving Caswell's inquiry and learned that "the federal and state codes apply to appointees, not elected officials," and that elected officials are covered by the Political Reform Act with regards to conflicts of interest.
But instead of dropping it, Caswell raised it anyway at the meeting that night and asked if "we could have somebody go and investigate this and maybe have BRPC talk about (it)."
Board member Camille Townsend, who chairs the BPRC, responded: "I'm aware of it, and I agree with you. We need to dive into that."
Without a vote or further discussion, board President Barb Mitchell referred the topic for further exploration to the policy committee, made up of Townsend and member Heidi Emberling.
The proposal has become somewhat of a hot potato since then, with no one wanting to explain its purpose or origins and also no one willing to kill it except McGee.
A special meeting of the board policy committee was set for Oct. 28, just days before the election and the same day as the evening school board meeting where the routine, mandated conflict-of-interest policy was set to be approved, but the BPRC meeting was canceled due to Emberling's absence.
That night, at McGee's urging, the board approved the routine biennial policy update but then proceeded, again without discussion, to refer the idea of expanding the conflict policy to the policy committee. This time the board took the unusual action of formally voting to refer the matter to the committee, but no one offered any clarity about exactly what was being referred, proposed or for what purpose.
The policy committee met to discuss the proposal on Nov. 12 but decided only to return the item back to the full board and ask for direction.
"There were some concerns from the community that our Conflict of Interest (policy) wasn't strong enough," Townsend said in opening the meeting.
McGee recommended against any consideration of the proposal.
"I don't see a need, and I haven't seen one," McGee said. "I think it's generally a good practice not to overextend our reach, and I think our reach in our current conflict-of-interest policy is appropriate."
There was no input or analysis from district lawyers, who were not present at the meeting.
Public speakers at the policy committee meeting asked for an explanation from Townsend and Emberling of what was motivating the proposal, but neither responded.
Instead, Townsend pressed to have the issue return to the full board for guidance.
"I'm not ready to drop this unless the rest of the board wants to drop it," she said.
Emberling expressed confusion at the meeting about Caswell's intention in raising the proposal.
"It would be beneficial for me to understand more about what (Caswell) would want to add to our current conflict-of-interest code," she said.
"I'm still unclear as to what we are to consider, like is it a certain paragraph or, did this other board member want us to develop an entire policy from scratch, do they want just to add one paragraph into our current code?"
McGee pointed out that the board had already referred it twice to the policy committee for its review and recommendation, but Townsend adjourned the meeting with the instruction to have the matter return to the full board for a third time.
Caswell, who is expected to be elected board president at next Tuesday's board meeting, told the Weekly Wednesday that she wanted Townsend and Emberling to study and make recommendations on the policy before it returns to the full board.
"The BPRC's purpose is to look at policy things and make a recommendation back to the board on whether it should be a policy or no policy, and they hadn't done that. The superintendent will be taking it back to BPRC for the BPRC to bring a recommendation back to the board," Caswell said.
Meanwhile, Emberling said there was a lot of confusion about why the matter was coming before the committee and that she felt it had not been fully thought out.
"Usually policy updates come from CSBA (California School Boards Association) or there is something that's been developed in house and then usually there is a sample policy, plus what we currently have," she told the Weekly. "This just seemed to come from out of left field."
Santa Clara County Counsel Orry Korb told the Weekly that he is unaware of any other school districts with conflict-of-interest policies that go beyond what is recommended by law.
"Our experience, at least here in the county with the various districts that submit their conflict-of-interest (codes) for review by the Board of Supervisors, is that they're consistent with the CSBA (California School Board Association) requirements," Korb said.
The school board association does not recommend adoption of any conflict policy other than what is set out in the Political Reform Act, but neither does it track the policies adopted by individual school districts.
The Palo Alto proposal's lack of clarity, unexplained origin and rushed timing just before the election has prompted speculation as to its purpose. After the Nov. 12 policy committee meeting ended, City Councilman Pat Burt, who was in the audience, was heard suggesting to McGee that the proposal was aimed at Ken Dauber, who was elected to the board on Nov. 4 and who is scheduled to take his seat Dec. 9.
One of Dauber's campaign contributors who donated more than $250, Gunn High School parent Karen Gibson, filed a complaint last year against the district with the U.S. Department of Education's Office for Civil Rights. The case is still being investigated. Dauber also served as a data consultant to the federal agency's Washington office as recently as 2011, earning $5,872 that year. His consulting agreement with the federal agency was terminated in 2012.
Caswell denied the proposal was aimed at Dauber, as did Barb Mitchell. Townsend did not return repeated phone calls and emails.
"I'm not sure if it could or it couldn't (affect Dauber's participation) but it might or it might affect somebody else. We would never have a policy that was focused on one board member," Caswell told the Weekly. She said she would expect Dauber to recuse himself from discussion or action on anything he has a conflict on, "same as anybody else."
"When I get requests from constituents to look at things, I pass those on," Caswell told the Weekly Wednesday. "That's part of my job."
For his part, Dauber said he "hadn't heard any reason that we need to make changes to our conflict-of-interest policy."
The next meeting of the BPRC is set for next Thursday, Dec. 11, at 1 p.m. in Room A at district headquarters, 25 Churchill Ave. The conflict-of-interest policy is not included on the agenda, which was posted online Monday, Dec. 8.
On Dec. 8, Baten Caswell said that she now supports McGee's recommendation.
"I support his thinking behind this," she said. "I do think it makes sense. I just wanted it to be considered."
Editor's note: This story has been updated to clarify that Caswell urged her colleagues to explore additional conflict-of-interest policies rather than to adopt them, and her current support of Superintendent McGee's recommendation.