Palo Alto Superintendent Max McGee is proposing to bring legal expertise in-house with the hiring of a general counsel for the district, a move he says could save the district money and make the organization more efficient and effective in handling legal matters.
But he is also recommending the renewal of contracts with four private law firms currently working with the district, despite sky-high legal bills over the past three-and-a-half years and one Board of Education member's belief that the contract with attorneys Fagen Friedman & Fulfrost should be put up for a bid due to unsatisfactory performance.
The school board on Tuesday is scheduled to discuss McGee's proposal to hire general counsel to advise the district on issues like special education, collective bargaining, employee and student discipline, the Brown Act and issues related to the U.S. Department of Education's Office for Civil Rights. This person would also review and approve outside counsels' work, serve as the district's coordinator for Uniform Complaint Procedure (which addresses bullying and other discrimination allegations), investigate formal complaints, respond and monitor Public Records Act requests and "serve as an ombudsman for informal but potentially serious complaints."
McGee, whose tenure with the district began last August, told the Weekly Saturday that he previously worked with in-house counsel when he served as State Superintendent of Illinois and found it invaluable to have someone he could rely on on a daily basis.
He has vetted the general-counsel idea with his leadership team and school administrators, and nearly all were supportive of the idea, seeing plenty of instances when they would benefit from being able to consult quickly with an expert on legal issues, he said.
The in-house attorney would also attend school board meetings.
"Frankly, having counsel present at a board meeting when it comes to legal questions or parliamentary procedure -- it would be great to have that answer right on the spot," McGee said.
He emphasized that the position would be revenue neutral: With in-house counsel, much of the money currently spent from the district's general fund on private law firms could be saved -- "and then some," he predicted.
Review of law firms' contracts
An annual review of those attorney contracts will also come before the board Tuesday. Bylaws require board members to evaluate the work of all its law firms "in such areas as efficiency and adequacy of advice; results obtained for the district; reasonableness of fees; and responsiveness to and interactions with the board, administration and community."
McGee is recommending a renewal of the contracts with Oakland firm Fagen Friedman & Fulfrost, which has consulted on special education and the U.S. Department of Education's Office for Civil Rights investigations; Dannis Woliver Kelley, which has worked on bond financing and construction matters; Lozano Smith, which has addressed legal issues having to do with personnel, the union and general governance; and attorney Dora Dome, who has consulted on bullying-policy development and trainings.
However, board member Ken Dauber, who advocated for cutting down on the district's rising legal fees during his campaign last fall, told the Weekly that he considers Fagen Friedman & Fulfrost's performance unsatisfactory and will be suggesting that the board look for new legal support on special-education issues.
"We have a firm that I think has substantially underperformed at a very substantial expense," Dauber said Friday. "Renewing this contract to me is not in the interest of the public or the district."
Since 2012, the school district has paid the firm more than $900,000, according to monthly district reports on payments made to vendors. This is compared to about $830,000 paid to Dannis Woliver Kelley (out of bond funds, not general funds); about $490,000 paid to Lozano Smith; and about $61,000 paid to Dora Dome.
The district estimates $250,000 will be paid to Fagen Friedman & Fulfrost in the 2015-16 school year, according to a staff report.
In order to prepare for the annual evaluation, Dauber reviewed Fagen Friedman & Fulfrost's correspondence with the district over the last two years. While he can't divulge what is in these documents -- most of them are protected by attorney-client privilege -- he said they illustrate the firm's failure to keep the district in compliance with special-education requirements and an unsuccessful, expensive approach to handling the district's response to Office for Civil Rights investigations. They also heightened concerns he had previously about a lack of transparency around the Brown Act and Public Records Act requests, Dauber said.
"We have been investigated by both the federal and state governments on various areas around special education including 504 plans, disability-based bullying (and) timeliness of IEPs (individualized education plans)," Dauber said. "In each of those areas, despite our legal expenses, we have been found to have compliance issues. Clearly we have work to do and we really need a law firm that is going to support the district in doing that work rather than not doing it."
In 2014, the California Department of Education's Special Education Division conducted a verification review of the district and found that Palo Alto was noncompliant in 10 percent of 3,388 items the office reviewed (that noncompliance rate rises to more than 15 percent when items irrelevant to determining compliance are removed from the total). In looking at 52 student records, the agency found that all 52 had at least one compliance problem, including students with overdue IEPs (individualized education plans), missed transition meetings and students who had not been invited to their IEP meeting.
In addition, nearly 14 percent of special-education parents at a meeting in January 2014 said that services were not provided to their children in accordance with their child's IEP. About 15 percent said that teachers and service providers were not informed of specific responsibilities related to implementing the IEP.
Dauber's said he's heard too many times that "the district's relationship with those families often seems too conflictual and too litigious." Many families who filed complaints against the district with the Office for Civil Rights described feeling like doing so was their last resort after failed attempts to obtain timely and satisfactory support from the district.
"We want a firm that is really focused on working with families to produce the best educational outcomes for children, given the law, rather than throwing up unnecessary obstacles to helping our most vulnerable students," Dauber said.
He also criticized Fagen Friedman for charging the district a "substantial" amount for public relations and political work, rather than strictly legal work.
Last year, the district spent just under $50,000 for Fagen Friedman attorneys to research, develop and follow-up on a resolution criticizing the federal agency, according to legal bills reviewed by the Weekly. The board used this resolution and a 12-page document prepared by lawyers to lobby several local and national elected officials.
Then there is an issue of transparency, Dauber said. For many of the Office for Civil Rights documents he reviewed there is a claim of attorney-client privilege, but the correspondence is between the district and the Office for Civil Rights, or among district staff about public relations. The lawyer is merely "copied" on the email.
"Much of this material was concerning policy formulation and public relations that clearly should have been public," Dauber said. "We want lawyers who help us to be as transparent as possible and to ensure public accountability for policy matters. Obviously, where there are legitimate student or litigation matters, confidentiality is appropriate. That is not what I see here."
Board opinions vary on effectiveness of legal firms
Dauber said he plans to propose Tuesday that the board issue a request for proposal (RFP) for a new special-education law firm. He pointed to a 2008-2009 Santa Clara County Civil Grand Jury reported titled, "Who really benefits from education dollars? (Hint: It's Not the Students)" that reviewed the legal fees spent per month and law firm contracts in each of the county's school districts. Noting that County Counsel charges much lower rates than private law firms, the report recommends that all school boards "should engage County Counsel whenever possible and leverage their buying power to negotiate lower fees with private law firms."
McGee defended his recommendation to renew the contracts, saying that his staff found the firms' quality of work, responsiveness and results satisfactory. The attorney from Fagen Friedman "has served us well," he said.
Board President Melissa Baten Caswell said Friday she supports the contract renewals.
"Staff and the superintendent have made a recommendation to continue to use our law firms and unless there's some reason that I'm not aware of, I would support it," she said.
Board member Terry Godfrey, who like Dauber was elected last fall and who also reviewed correspondence between the district and Fagen, Friedman & Fulfrost, said Monday that key information useful for evaluating the firms' work is missing from the two-page recommendation memo.
The original RFP and performance metrics are needed to know whether the work is up to par, she said.
"I look at the packet and that doesn't tell me enough," Godfrey said. "I'm interested in the structure around the process. ... You don't want to do this kind of thing (renewing contracts) on autopilot."
She found reviewing the Fagen, Friedman & Fulfrost correspondence alone inconclusive.
"It didn't highlight anything for me. I couldn't see anything one way or another (regarding their performance)," she said.
Dauber said there's value into looking into hiring in-house counsel, per McGee's recommendation. Inside counsel, unlike a private law firm, has a set salary and is evaluated based on how few legal issues reach its employer's doors, as opposed to financially incentivized private firms.
"It's clear reviewing these documents that the level of control that the district was able to exercise over both the bills and the legal strategy just wasn't what it should have been," Dauber said. "We just didn't have the kind of control over our law firms that I think is good practice."
Godfrey said she sees a potential advantage in hiring counsel who would be able to oversee the work of the other law firms, though she questioned whether such a hire would render the district's overall legal expenditures revenue neutral.
"We will always need specialized firms" in addition to general counsel, she said.
Tuesday's board meeting begins at 6:30 p.m. in district headquarters, 25 Churchill Ave. View the full agenda here.