News

Palo Alto school board split on law firm contract

Dauber urges board to take a hard look at performance of special ed law firm

Amid sky-high legal fees and the school district's continued troubles providing services to special-needs students, members of the Palo Alto Unified school board were split Tuesday night on whether to renew the district's contract with the special-education law firm Fagen Friedman & Fulfrost.

The district has been relying on the Oakland law firm for legal services for years, including for the handling of 11 investigations by the U.S. Department of Education's Office for Civil Rights.

Since 2012 the district has paid more than $900,000 in legal fees to Fagen Friedman & Fulfrost, compared to about $500,000 to Lozano Smith, which provides the bulk of legal services for the district, according to monthly district reports on vendor payments, compiled by the Weekly. District staff anticipates another $250,000 in fees with Fagen Friedman & Fulfrost in the coming fiscal year.

Board member Ken Dauber opposed the renewal of the contract for Fagen Friedman & Fulfrost, citing myriad problems and an "adversarial relationship" between the district and the Office for Civil Rights that he said has not been a good use of the district's resources.

"We've seen an order of magnitude increase on Fagen Friedman & Fulfrost bills. The board should take a strong interest on whether those dollars have been well spent," he said.

After reading two years worth of correspondence between the firm and the district, Dauber said he concluded that the law firm does not meet the standard for the district, and the strategies adopted by the district to handle the Office of Civil Rights investigations with the help of the firm were "mostly counterproductive, were largely unsuccessful and were extremely expensive."

Dauber also criticized the law firm for being ineffective in helping the district comply with state and federal requirements for special education. Compliance issues include failure to meet deadlines for Individual Education Plans (IEPs) and neglecting to invite students to their own IEP meetings, according to a 2014 review by the California Department of Education's Special Education Division.

Instead, Dauber proposed the board vote to issue a Request for Proposal (RFP) to find a new special-education law firm, one that could deliver superior services. By declining to shop around, it is as though the school board sees no point in looking at alternatives, he said.

"The decision is not whether to fire a firm or not, but whether to go through an RFP process and look for an alternative and see if we can do better," Dauber said.

Board member Terry Godfrey said she was receptive to the idea of the RFP process, but she did not come to the same conclusions as Dauber after reading archives of the firm's correspondence. She said she is not a lawyer and doesn't have enough expertise to assess to whether the firm is doing a good job without more data from the district.

Other board members stood by the staff recommendation to renew the contract, focusing on the years of difficult disputes with the Office for Civil Rights. Board member Camille Townsend said the law firm was able to help guide the district through a tumultuous time during which the Office of Civil Rights (OCR) became a "very political" organization.

"The OCR has taken on a political spin that is hard for any district, and frankly Palo Alto was in the middle of it. I know Mr. Dauber was unhappy with the board resolution that we articulated with regard to OCR because all of us are for civil rights, but as an attorney I was distraught with the lack of due process," Townsend said.

That resolution, approved last year before both Godfrey and Dauber joined the board, formally criticized the Office for Civil Rights and the way it handles investigations and argues, among other things, that the agency acts as though the district is guilty of violating civil rights simply because a complaint has been filed.

Contrary to Townsend, who spoke of a politicized federal agency, Dauber said it is Palo Alto Unified that is the anomaly, in that it is one of the few districts that did not immediately pursue fixes to the complaints filed with the Office for Civil Rights.

But he also raised concerns over the $50,000 in fees paid to Fagen Friedman & Fulfrost to draft the resolution, and the scope of the firm's work spilling over into public relations and political outreach.

Dauber also said the firm failed in encouraging transparency, as seen in its advice to the district about the Brown Act, which governs when board discussions should be public and when they need to be closed. The firm's counsel on closed meetings was "dubious at best" and inconsistent with both the letter and the spirit of the law, he said.

"We need a law firm that is going to help the district achieve both compliance with our public open-meetings laws and the Public Records Act laws," he said. "I don't believe that Fagen Friedman has performed to the level that I would like to see and I think the public deserves in this area."

Board President Melissa Baten Caswell said she would rely on the district staff's assessment of the work done by the law firms and received assurance from Superintendent Max McGee that it is getting the services it expects from Fagen Friedman & Fulfrost in its day-to-day work and that there hasn't been any malfeasance or malpractice on the part of the law firm.

Lisa Weyland, a resident who spoke on behalf of a family with a special-needs student who wished to remain anonymous, told the board that the family had a very negative experience with the Fagen Friedman & Fulfrost attorneys over a complaint it made regarding a 504 disability issue. The complaint was settled and good things came out of it as students benefited from policy changes, Weyland said, but the family dealt with a lot of negativity from the lawyers, which she said impacted the child's education and emotional health. The family decided to transfer their child out of the school district, she said.

Weyland said a different law firm handling special-education issues could do more to foster a positive process in filing complaints and avoid the "misrepresentations and miscommunications" that resulted in the family's negative experience.

"Different law firms have different legal cultures," Weyland said in recommending the district search for a firm to replace Fagen Friedman & Fulfrost.

Another speaker, Steve Schmidt, urged the district to engage in the RFP process for all four of the law firms whose contracts are up for renewal, saying that doing so is standard industry practice. Schmidt, himself an attorney and general counsel of a company, said that without asking for bids from other firms, one has no basis for knowing whether the district is getting the best service for its money.

Townsend countered, however, saying that the relationship that has been built between a law firm and the district is worth holding on to.

In the end, the board asked McGee to consider their feedback and return with a recommendation, which could be the same as already proposed or a different proposal, on June 23. McGee said he would review the board's thoughts with staff this week and work on a recommendation.

Board throws support behind general counsel

While there was some back and forth on renewing the legal contracts, the majority of the board members favored McGee's proposal to hire general counsel for the district, which is expected to reduce legal fees in the coming years and provide much-needed legal support to the district and the board.

McGee said many of the district's legal inquiries on the Brown Act, the Office for Civil Rights and special education come up on a regular basis, and hiring general counsel would be a cost effective way to direct questions to someone present and in-house instead of incurring costly fees with private law firms.

"I feel like we have demonstrated this year, and likely in past years, the need to have someone on staff," McGee said.

Caswell said she was receptive to having general counsel to investigate legal complaints against the district, draft board policies and keep on top of new legislation but cautioned against relying on the counsel for some of the specialized legal work surrounding compliance with special-education laws.

Dauber and Godfrey also supported the idea and both agreed it's been needed for years.

Townsend said she wasn't sold on the idea of hiring general counsel for the district, which she called "ineffectual" and lacking in the expertise needed to handle specialized legal subjects like special education. She said she didn't have a firm grasp on what role general counsel would play for the district.

"Is it (for) public-records requests to deal with the newspaper? Do we need a full-time attorney to deal with that? Do we need one for the 504?" Townsend asked.

McGee said the estimated $565,000 in legal fees expected for the 2015-16 fiscal year do not take into account the hiring of general counsel but that overall legal costs are expected to go down. He predicted the addition of general counsel would be cost-neutral to the district.

The board will revisit both the contracts and the new position, with a vote on the latter, at the June 23 board meeting.

Comments

37 people like this
Posted by Anonymous
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 8:49 am

If I read this correctly, PAUSD spent $1,400,000 in legal fees to avoid spending for about 50 special needs cases. Well at least these lawyers made out like bandits.


30 people like this
Posted by Resident
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 8:53 am

It is disgusting that PAUSD spent all this money on lawyers' fees and then had the audacity to ask for money for a parcel tax. This is our money they are wasting.

The parcel tax enables this kind of spending.

I feel pretty disgusted that voters were conned to vote for an extension and increase of the Parcel Tax while our district does nothing for basic housekeeping of their finances.


35 people like this
Posted by Ebbie
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 9:05 am

It is sad that our board president, Melissa Caswell, thinks that we should only do an RFP if our firm has committed malfeasance or malpractice. Is that the standard for business now? Unless you have actually stolen money or come to work drunk we are stuck with you?

Honestly, looking at the OCR resolution do we know for certain that the latter isn't the case?




16 people like this
Posted by Bob
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 9:36 am

> Compliance issues include failure to meet deadlines for Individual Education
> Plans (IEPs) and neglecting to invite students to their own IEP meetings

Why do we need 500/hour lawyers to oversee the District's administrators, and teachers, to do their jobs? How hard is it to develop a worksheet for each student that includes tasks, and do-by dates, which the teacher/administrator then checks off as the tasks are completed?

Is the organizational capabilities of those working in this area that bad?


25 people like this
Posted by Schools serve students
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 9:49 am

Due process for the district? You are kidding me. All the OCR did was make the district follow its own procedures, i.e., offer due process to disabled students. There was no other consequence than that, especially if the guilty hadnt fled where no one pursued 'em.

Speaking as one of the OCR settlements, we called and spoke with both Caswell and Townsend and two other board members no longer there to complain about the lack of procedure. In fact,one of those conversations is probably where asking OCR for help probably came from. This is not like malpractice litigation, people just go to the OCR when districts arent following the law. The OCR didnt even make the district take OCRs training, the district handled it themselves. It's stressful and timeconsuming and all parents get out of it are making districts follow their own procedures. Townsend could have saved all of that legal expense and trouble if she had herself just listened and acted in the interest of students. (When is her term over?)


17 people like this
Posted by Should've Voted No
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 10:16 am

See, now that Measure A passed the district has plenty of money for all the programs AND more attorneys. And we're paying for them.


16 people like this
Posted by all about $$
a resident of Midtown
on Jun 10, 2015 at 11:20 am

Every SpEd student in crisis not being well-served by PAUSD that FF&F is able to prevent from being educated at PAUSD expense at an outside school, or, better yet, whose family gives up and leaves Palo Alto, saves the district >$100K. Hence, the district will continue to engage the services of FF&F to the detriment of its most needy students


43 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 11:56 am

Repeat after me: "I'm sorry. We messed up. We forgot that school districts are first and foremost to educate and serve kids. We're going to fix this. Along the way, we're going to set an example of honesty and decency. We're going to show kids how you learn from mistakes and do the right thing."

See how easy that was? I just saved you $900,000. (And half of those parents can now spend their time volunteering instead of pulling out their hair.)


34 people like this
Posted by Ashamed of School Board
a resident of Jordan Middle School
on Jun 10, 2015 at 12:07 pm

It seems as though whenever PAUSD wants to cut back on something, they cut back on IEP and special needs services FIRST.

In this way, they cheat the kids and the community. It would serve them well to remember that, as a public district, and a wealthy one at that, they are LEGALLY required to provide the extra educational services needed for children who need them-- OR pay the tuition for a private school specializing in " special edication".

It isn't a choice-- it is a legal requirement that theypay fulfill.


20 people like this
Posted by Continue Cleaning House
a resident of Barron Park
on Jun 10, 2015 at 1:31 pm

Mr. McGee is doing good house cleaning, and I hope he continues, we need to get rid of the of those administrators who failed our students. I am Glad Young, and Winston are leaving, and I am wonder when will Holy Wade will be evaluated pm the our students; $ is going to the lawyers who keep recommending the wrong thing just so they can continue to make % because every minute they spend on listening to Holy's complains they are highly reimbursed by the district. Shame on us. [Portion removed.] I trully believe that Mr. McGee is doing the right thing. He is eliminating the communicatins position that was also put together to defend Skelly and his big "I blue it" moments.
i have faith in our new super, Ken Dauber and Terry G. Luckily Camile will be out soon. It was nice not to have Ms. Emberling at the meeting yesterday, things went a lot smoother. She is another who should leave soon too.
[Portion removed.]
Mr. McGee You have he power to fire anyone who is not working at the district for the students. Out students shall continue to get education number one in this district without having their rights violated. It is time. Please Mr. McGee and new added board member be the change you have to be in order to make our district a lot better place for our students and parents. The future of this district and students depend on the decisions you take today.


17 people like this
Posted by Red
a resident of Downtown North
on Jun 10, 2015 at 2:50 pm

Red is a registered user.

Our school district has been ill served by the attorneys of the
"FF & F" law firm. The firm clearly do not have the expertise to address issues of special ed. students, bullying problems, positive relationship with a helpful agency such as the OFFICE OF CIVIL RIGHTS. Furthermore they seem "TONE DEAF" to the cries of concerned parents and suffering children. Young, Wade and the employment of a "communication spokesperson" were additional wasted school tax dollars that merely deepen the problems and the sufferings of families with special education children and/or child victims of bullying! The law firm, previous school board and superintendent clearly and simply lost the confidence of a large majority of the constituency of our PAUSD. A new start with a more competent law firm selected by a process of "Request for Proposal" will restore the critically needed support for our school district's procedures and processes, our new superintendent's attempts to chart a more collaborative and productive course and add encouragement to the work of our two new school board members. Let's continue in the new direction!


16 people like this
Posted by Good job Max
a resident of Old Palo Alto
on Jun 10, 2015 at 4:04 pm

I echo the sentiment that McGee is doing a good job making these various improvements. Also it's telling that Townsend doesn't want a general counsel, much less an RFP process to manage our law firms, as is standard practice among large entities. Townsend would rather run amok directing outside firms whose meters are running to do her bidding and advance her own agenda. A general counsel will pay for him or herself, save us money, increase public trust, and hold our outside firms accountable. Townsend needs to go. She seems to be against every improvement that comes along, and all she seems to do is "celebrate" the status quo. All organizations should strive for continuous improvement. I really wonder who her constituency is, besides the teacher's union.


19 people like this
Posted by Dennis Smith
a resident of Crescent Park
on Jun 10, 2015 at 4:59 pm

I agree with Ken Dauber and any other Board member who strives to get these legal costs under control. We need to educate children, not pay more lawyer fees.


14 people like this
Posted by Pausd parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 5:48 pm

What a big fat waste of resources! All PAUSD has to do is follow the law. Am sick and tired of money being whittled away for these kinds of things, while students/staff get shafted. Glad my kids are out of PAUSD!


1 person likes this
Posted by Fred
a resident of Barron Park
on Jun 10, 2015 at 5:55 pm

Does anyone have any idea what legal costs are in similarly situated districts? Do they have inside counsel or use outside specialists? It is often hard to tell if outside advisers are doing a good job or not, and esp. hard to tell if you are paying too much (or too little). It would be useful to hear what other districts do.


10 people like this
Posted by A PAUSD parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 6:06 pm

It occurs to me, too, that it's too bad Measure A won on the first round. McGee et al probably don't think they have to care what anyone posts on TS anymore. [Portion removed.] He really should try just a wee bit harder to look into feedback from parents who participated in anything she's been in charge of (meaning, the ones who left, or at least not the usual suspects in the district office or PTA sycophants).


4 people like this
Posted by bipolar
a resident of Adobe-Meadow
on Jun 10, 2015 at 6:43 pm

@A PAUSD parent,

If you read the forums, you'd think the measure had no chance. However, reality showed how biased these forums are. The same thing happened for the libraries. It really is just a few disenchanted people posting when the vast majority being more than satisfied. Given that data, why would they care what anyone posts on TS anymore?

As to the current topic, Ken's totally right to ask for a RFP but totally ignorant on whether a law firm does not meet the standard for the district.
Two years of correspondence and his whole argument comes down to "I think". What about providing some data to back up your "I think".


5 people like this
Posted by They were scared
a resident of Juana Briones School
on Jun 10, 2015 at 7:28 pm

Oh, it's more than a few people posting. The parcel tax folks were running scared and they were effective in keeping the level of fear high enough for enough folks to vote yes, with reservations. The discontent has not gone away, though the departure of a couple of administrators, Hurley, Yiung, and others, has helped. Max McGee will only continue to make these moves under pressure, including the posts on the Town Square. Yes, he reads them.


1 person likes this
Posted by The 77.34%
a resident of Adobe-Meadow
on Jun 10, 2015 at 7:47 pm

You're not still going on about this? 77.34% is a huge mandate. It wasn't even close. Regardless of the fear mongering of that tiny minority against it. No one's interested anonymous forums. You may have noticed that's the only place the Weekly could find any anti-district sentiment. Hence their headline "Opposition heats up [on the forums]".


10 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 9:14 pm

@bipolar,
"If you read the forums, you'd think the measure had no chance. However, reality showed how biased these forums are."

Actually, if you read what people said, reality only showed people weren't willing to vote against a funding measure as a means of expressing their displeasure with the district. Proponents kept saying it was just punishing children, that we needed the money for teachers and mental health support, and yet they win, guess what? They then interpret it differently. The people considering sending a msg were right, weren't they?

I posted comments against the Measure, but made no effort at all to campaign against it IRL. I don't think anyone did. But you've made the point that, contrary to what proponents said, the result really did send a message. Had I known it would shore up the arrogance this badly, I would have made an effort.

No marginal amount of money was worth the district believing they didn't have a responsibility to clean up the problems. You do realize you are basically saying the proponents were lying to get the money, don't you?


7 people like this
Posted by They were scared
a resident of Juana Briones School
on Jun 10, 2015 at 9:18 pm

If you didn't post, then we could really gauge your tiny minority. Not trying to troll here, but the correction is not over, that is why we've gone from brining through $50K on Kevin Skelly and Barb Mitchell's bizarre OCR fight to Ken Dauber judging that maybe FFF didn't really do anything for our kids. I remember just two years ago quite a bit of smug directed at Dauber because the majority had spoken. Be careful, the two years that followed the 2012 election were two of the worst years in PAUSD history, I would not wish a repeat of that. Cut the mike!


7 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 9:20 pm

@77.34%

The vote was a funding for schools. At best, based on polling and experience, this says the district has a great formula in paying hundreds of thousands of dollars more to wage costly special elections. (Interesting that the excuse to move the board elections to even years was to save election costs.)

If you want to know how people feel about the district, ask. Start with the special ed families (the ones with direct experience with the most problematic areas). Maybe a lot of them voted for the funding, too. I'm guessing the answer in regards to trust and the district will be different.

Are you saying the proponents lied about the funding being essential for mental health in order to get votes, that it really was a a vote to send the district a msg?


5 people like this
Posted by Retired Teacher
a resident of Duveneck/St. Francis
on Jun 10, 2015 at 9:33 pm

Seems to me that the lawyers for the PAUSD did a good job standing up to an out-of-control federal agency that had become politicized, making law rather than administering it. Good for the district, good for the law firm!

Speaking as a progressive who feels strongly that government should provide a safety net and protect the disadvantaged, I don't think that means that bureaucrats can't go out of control and cause a lot of damage to innocent people!

I hear a lot of vituperation in these commentaries, directed at the district, administrators, teachers, unions. I know from 40 years of experience that the vast majority of these people care deeply about students and the good of our education system and our society. I know that most students care about each other and about the educators who try to help them.

These one-sided attacks do none of us any good!

Above all, we need to keep things in balance in this district and in this community.



7 people like this
Posted by peppered
a resident of Community Center
on Jun 10, 2015 at 9:35 pm

Dump the law firm already.


2 people like this
Posted by sad really
a resident of Community Center
on Jun 10, 2015 at 10:06 pm

[Portion removed.] Ken states before the election that he is going to challenge the OCR decision. Having failed at that, he then spends two weeks going through two years of correspondence and finds no smoking gun. He has to fall back to a perceived "adversarial relationship between the district and the Office for Civil Rights".

It would be good if he started looking out for the kids instead of following his own hidden agenda. Talking about transparency!

Nothing to see here, move along.


6 people like this
Posted by Hanging Chad
a resident of College Terrace
on Jun 10, 2015 at 10:32 pm

FFF took the district for a long expensive ride at taxpayer expense. Instead of fighting the Feds we could have been fixing problems. Thanks to Dauber for raising the issue and Godfrey for insisting in good government. Townsend is never going to be on the side of civil rights but she's finally in the minority.


15 people like this
Posted by A PAUSD parent
a resident of Another Palo Alto neighborhood
on Jun 10, 2015 at 10:38 pm

@Retired Teacher,

There is a law called the ADA. If a child has cancer or kidney failure or Crohn's disease, the law may mean the difference between an education and not.

Our district, as do all districts, wrote procedures by which they would follow the law. They had already decided how they would follow the law. All they had to do was make those procedures available to parents and apprise them of their rights. Instead of doing that, our district was pretending they didn't have procedures.

Parents in two cases tried for months to get the district to just provide due process. They finally asked the next highest authority for help. The OCR usually can get districts to fix things, yet our district would not, so the OCR had to write out the way the district would follow the law, those are the settlement agreements. The OCR could have fined our district, taken away funding, all kinds of punitive stuff, but they did not, their job is to get districts to follow the law, and that's what they did.

Our district administrators failed the children of the district in favor of spending hundreds of thousands on legal fees for their own selfish purposes. (Business research shows if you way pay too much, you actually don't get better performance, it backfires. Administrators used district legal not to protect children, but to protect their own behinds.)

I agree that governmental bodies can run amok, but in this case, it wasn't the OCR.

Repeat after me...


16 people like this
Posted by Litigation
a resident of Jordan Middle School
on Jun 11, 2015 at 12:34 am

The OAH hearing page shows PAUSD brought lawsuits against parents who don't speak English and who couldn't afford to show up in court, so the District ran an entire hearing against the family anyway! What a monumental waste of taxpayer money.
(See cases at Web Link)

Superintendent said he reviewed all the cases his Director of Special Litigation (sorry, Special Education) department filed against families of disabled children, and concluded they were all appropriate. He should review his definitions. These cases were filed against parents of the disabled for such offenses as requesting an independent evaluation. (Not billing for an evaluation, just requesting it will get parents sued in Palo Alto Unified.)

This is such a small expense filing litigation serves no purpose except to try to overpower, threaten and control families. It gives Special Education unlimited power. The speaker who said District uses legal as a bullying tactic was correct. The Superintendent, Special Education Director and Board members all revealed their personal dependence on one of FFF's lawyer who was responsible for the OCR case, allowing autistic children to be bullied, and the money drain of fighting OCR since forever (how many years has this gone on now?) A speaker reported District's attorney was rude and threatening to families. Other families experience this also.
Too many documents from Special Education are rude and appear to be written by a lawyer, not an Educator.

Special Education cases and contacts with attorneys need to be controlled and approved by a senior administrator. When you give a District employee their own personal lawyer like PAUSD does, power will run amock.

Instead of giving a rubber stamp to sue disabled, the Superintendent would do better to call the families before he allows Special Litigation to file lawsuits. Has he ever thought to ask why families they have so little faith in his evaluations? Has he reviewed parents responses and documents, all of them, or only the documents Special Education let him have that say what they want him to hear? Can he imagine any family would distrust an evaluation by his temporary staffer who was let go, a behaviorist with no credentials supervised by their mother, "special" evaluaters brought in by Special Litigation with the purpose of testifying against disabled children in court? Has he ever evaluated his own evaluaters or their work?

Usually parents don't ask for extra evaluations for the fun of it. Before he sues, has he offered the suffering child help? What is going wrong? If the child cannot read in Grade 4, or can't write the alphabet in Grade 3, or is dependent on an aide, or is growing more dependent, or is a danger to him/herself and others at school, is he helping the child? Before approving a lawsuit, did he make sure he knows the whole story? Did he check if Special Litigation let parents respond to their attorney's threats and attacks, or were parents attempts ignored? Did he review those attacks to see if they were accurate? OR did he only look at the documents Special Litigation and attorney's carefully compiled to get his approval and the Board of Education to back them?

Better yet, explain why so many families think his attorneys are rude and why he allowed rude letters against parents of disabled children to go out at all? Is that education disabled students? PAUSD's rude attack lawyers had a nice run and got plenty of taxpayer money. There is nothing wrong with requesting bids from other firms. This should be done at least every three years. Now is a good time to see if Special Litigation can survive on it's own without relying on the same attorneys who caused so many problems.


1 person likes this
Posted by Alphonso
a resident of Los Altos Hills
on Jun 11, 2015 at 7:09 am

Alphonso is a registered user.

[Portion removed.] Sure some cases have merit, but most don't. We are still waiting for PA Online to provide a scorecard of wins and losses - no honest evaluation of legal costs can be made without that.


9 people like this
Posted by teacher
a resident of Adobe-Meadow
on Jun 11, 2015 at 7:48 am

This is a healthy argument to have, and I commend the Board for considering a switch. We should be RFP'ing major vendors on a regular basis.

As to those who say "just follow the law"... Welcome to a new era. Education biz is nothing like it was when you were a kid. The law, especially Special Education law, has become so complex, with burdensome amounts of paperwork heaped upon administrators.

[Portion removed.]


21 people like this
Posted by Retired Lawyer
a resident of Community Center
on Jun 11, 2015 at 8:19 am


@sad really
“(Ken) spends two weeks going through two years of correspondence and finds no smoking gun. He has to fall back to a perceived 'adversarial relationship between the district and the Office for Civil Rights.'"

“Sad really” does not get the point. The point is not to “find a smoking gun.” That is not (nor should it be) a criteria for evaluating the performance of a law firm.

However, please also note that even if Dauber had found a “smoking gun,” he couldn't tell the public about it. He is bound by the attorney-client privilege to not reveal in public the specific contents of what he read in the FFF correspondence. As a board trustee, he has to keep those details confidential. Just like private student information. Dauber made that clear and spoke instead in generalities, as was proper.

The standards for evaluating the work of the law firms are set forth in the board’s bylaws, which 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."

Dauber was quite clear that these were the criteria he used, and he diligently performed that review, as required. So did Teri Godfrey, who did not reach the same conclusions as Ken, but is withholding judgment for the time being until she gets further data, and is supportive of using an RFP process to look at alternative law firms.

Melissa Baten-Caswell appeared to limit her review to asking district staff about their experiences with the FFF lawyers, and based her recommendation on what she heard from staff. Staff opinion is an important piece to consider as well, but the board’s monitoring of the legal contracts really should go beyond polling senior staff, because others (like vulnerable children and parents) are also affected by the lawyer’s decisions, as well as the entire community, who foots the bills.

Why there isn’t a more 360-review of the lawyers' performance is perhaps a good question for the upcoming board retreat. Special ed families especially should be polled about how they have been served and treated by the lawyers in the course of delivery of educational services to their children required by law.

It’s not clear how the other board member at the meeting, Camille Townsend, performed her due diligence on evaluating the board. As the only lawyer on the board, as she pointed out a number of times, she of all people should have taken a more thorough approach to explaining her process in performing her oversight duties.

Dauber, on the other hand, took a responsible approach to his evaluation process, asking well in advance for documents that he needed (the FFF correspondence and legal bills, and also the recent audit concluded by the California Department of Education, which found concerning levels of legal non-compliance), setting up a meeting with special education families to hear about their experiences directly, and then putting his conclusions into writing and delivering them to the board (and on his website).

Dauber’s assessment led him to conclude that Fagen Friedman & Fulfrost had underperformed, at too great a cost, and as a result, Dauber suggested that the board look at alternative private law firms (and/or consider the option of contracting for special education legal services with the public County Counsel, a less-expensive, but equally qualified alternative) through a “Request for Proposal” process.

Dauber's thorough approach and well-considered conclusion makes sense to many in the community. It's an important and productive discussion for the community to engage in, and a good time perhaps to make a fresh start with new lawyers who are less "adversarial," engage in more cost-effective strategies, and are more aligned with the community's values of putting children first.



4 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 11, 2015 at 8:36 am

"Why there isn't a more 360-review of the lawyers' performance is perhaps a good question for the upcoming board retreat. Special ed families especially should be polled about how they have been served and treated by the lawyers in the course of delivery of educational services to their children required by law."

Special ed families weren't even asked anything during the CDE's review in 2014.


6 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 11, 2015 at 9:19 am

@teacher,
"It's an easy $$ win to find a "well-off" district, file a complaint with OCR, and wait for a settlement. "

I'm sorry, say what??! The settlement agreement is not a monetary settlement, it's an agreement that the district will offer its own procedures for following the law to students.

As for paperwork -- districts have already written those procedures, already had them cleared as being appropriate. Districts write their own procedures. Our district was claiming it didn't even have them, and not extending those procedures to students, when the law requires them to proactively let parents know their rights and extend procedures. Claims about paperwork are just a crock, as districts made up the procedures themselves. If the paperwork is too great, it's their own fault. In fact, it seems to me the single greatest generator of paperwork for the district are the grossly inaccurate and often just deliberately false memos and letters generated by the student "services" people. Just hiring people with a better acquaintanceship with competence, truth, and doing the right thing would solve that problem.

I'm just curious, since you are a teacher -- why do you think people get any money from OCR settlements? OCR doesn't even usually decide the specifics of the cases, in fact, in one of the OCR settlement agreements with PAUSD it didn't. All that case was about was making the district stop pretending it didn't have 504 procedures when parents asked. The result for the family was a 504 meeting (not even a hearing) for the student, that the district decided, and for which the family has more than $10,000 in expenses (in legal costs to keep the district from grossly misbehaving once the OCR was not watching, medical documentation and care demanded by the district, and other costs, none of which were reimbursed or ever asked to be reimbursed.)

There is no money at stake in settlement agreements, only stress, retaliation, personal expenses for their own special ed lawyers, and maybe, just maybe, the process to try to guarantee the free and appropriate education their child is promised under the law at the end of it. Settlement agreements are extremely rare. The OCR's work is to help districts follow the law. If we took the issue of professional "embarrassment" out of the mix and other personal motives, our district could have saved hundreds of thousands of dollars in legal fees and just said, Oops, okay, now we will start apprising parents of their rights and giving them the procedures we wrote ourselves for following the law when they ask.

There is nothing complicated at all about this, it's been made complicated by CYA district bureaucrats. All of this could be solved if district personnel stopped overlegalizing everything and just lived by the Golden Rule.


6 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 11, 2015 at 9:27 am

@Alphonso,

[Portion removed.]

Why would any family spend their time tangling with our district? It brings a lot of abuse, lengthy [portion removed] letters and memos from district staff (probably originating from legal), mistreatment of children in school because of what district staff tell the school staff behind families' backs [portion removed] and other retaliations (gawd I already feel sorry for some of the depressed kids who sought help last year if they also have LD's for what's going to hit them), thousands in monthly legal fees if families want to retain their own legal representation just to ensure their children have an equal education. It's hugely stressful, and there is nothing anyone gains from it except stress and hole in their wallet.

[Portion removed.] It is a testament to parents' remembering school districts are for children that the district hasn't just been sued out of existence given the behavior of personnel. (Me, personally, if I wanted to tangle with a Quixotic lawsuit, I would sue the state to be able to take my tens of thousands in annual property taxes somewhere else safer and more fair. Which, by the way, if anyone out there wants to take the case pro bono -- despite my progressive politics, I will bring the plaintiffs, just let us all know. Nowadays with all the new educational choices -- it's not just private, charter, or public anymore -- public schools should start to care about whether they push families to that point, especially in this area.)

You are lumping a lot of things together when you say "cases". Do you mean the OCR complaints? Are you calling complaints that weren't taken by the OCR as "cases" without "merit"? Because they weren't even "cases" and the OCR was deciding whether to investigate based on whether there was PROCESS available in the district, not deciding anything about the cases. This is after 2 settlement agreements in which the OCR had to force our district to start offering process (one that was so egregious, the OCR did a rare investigation).

The OCR doesn't decide individual cases except in very, very extreme circumstances, it says so on their web site. It didn't even decide the case in one of the settlement agreements. Even if you have a legitimate complaint, OCR will probably not take the case. It's the difference between having a disagreement needing to go to court, and not having a court system at all. The OCR doesn't decide the cases, it makes sure districts follow the law in offering process. When it refused to take some of the later complaints, it wrote that there wasn't enough evidence for lack of PROCESS/PROCEDURES -- they weren't deciding the cases, they were basically saying they thought our district probably had finally gotten process in place after 2 settlement agreements. This is hardly anything for a district to crow about, when the OCR will usually only have to enforce settlement agreements in maybe 20 cases out of hundreds of cases it takes, out of the 13,000+ districts across the country in a year. Our district had 2 settlement agreements 1 year.

The district's excuse that the OCR was just so mean and had a special bee in their bonnet to "get" Palo Alto out of all the thousands of districts out there just makes no sense at all, anymore than it makes sense to accuse parents of having nothing better to do with their time than spending anymore seconds of their lives than necessary enduring the stress and retaliation by people in the student services office.

Frankly, Alphonso, you should not wave that red cape so hard, because I can think of several situations in which the district has incurred massive liability (probably FFF's intent - what a goldmine for them) and the district could lose huge amounts of money if families chose to sue, especially in 504 cases. If I were McGee, I would be polishing my apology pen and more impartially investigating what really happened (i.e., not filtered through the very people who caused the problems, but talking to families), not letting FFF pull out more red capes. Despite all the posturing, our district hasn't faced many actual suits, and it certainly has never faced ANY it hasn't basically made necessary by its outrageous behavior toward families. There are no checks and balances except from the feds, and those are extremely limited. It is utterly outrageous that you would try to spin the fact that families would try to get help as if those were actual suits.

In fact, maybe it would be better if someone would sue -- the DISCOVERY PROCESS might be worth it alone. A lot of stuff district staff don't think will ever see the light of day, or that they think is privileged, won't be. Won't that be fun? The Weekly would win so many more awards.

If any scorecard needs making, it's the one in which the district pays attention to how many families have left the district because of mistreatment, how many have quietly suffered because they didn't know how to advocate for their children in the face of denials of needed services, how many would have complained if they felt they had any recourse, how many families got letters from the district in which 90% of what was said was utterly false and the other 10% was just utter drivel, and how many families COULD HAVE SUED THE DISTRICT FOR MONEY (AND STILL CAN) yet did not. (Really, seriously, you should stop waving the red cape with such misrepresentations.)


13 people like this
Posted by Corp lawyer
a resident of Evergreen Park
on Jun 11, 2015 at 4:53 pm

@Retired Lawyer has the best grasp on this. At one point during the board meeting Godfrey asked a staff member (the business manager, I think) when the last RFP for a law firm had been done. Her answer? "I can't remember".

Giving lawyers a blank check and never checking on competition is automatically going to lead to high fees and overuse of services. Doing an RFP every few years makes sense, and it's embarrassing that PAUSD hasn't done that in living memory.


5 people like this
Posted by Question
a resident of Another Palo Alto neighborhood
on Jun 11, 2015 at 5:05 pm

I wonder if FFF warned anyone about the consequences of retaliation? Covering up retaliation? Corp lawyer, what if the district's legal were party to retaliation? What would happen? (Anyone who complained, whether the OCR took the complaint or not, it is seriously unlawful to retaliate against them. .)


6 people like this
Posted by Question
a resident of Another Palo Alto neighborhood
on Jun 11, 2015 at 5:14 pm

I remember once there was a really good insurance case in which the insurance company's lawyers said the company required them to do unethical and illegal things and so sued the company. The company tried to get the whole thing suppressed but ended up losing that battle. When they did, they settled big time with the lawyers who sued them (and then of course, got the silence agreement). The lawyers who sued played it right, getting ahead of the company so as not to take the fall for them.

I do not think we have appropriate checks and balances by any stretch to have in-house counsel. Legal should represent families, not district administrators, in fact, the contracts really should spell out when the district will spend legal money on behalf of administrators and employees, and when not. It seems to me FFF behaved as if they were working personally for certain district personnel against the interests of children and the district.

As much as people talk about lawsuits and families, there really aren't -- maybe there should be. The discovery and deposition process could be a really good thing.


14 people like this
Posted by F'd by FFF
a resident of Community Center
on Jun 11, 2015 at 5:43 pm

Fire this law firm. Plenty of fish in the sea and too much smoke here not to be some fire. Too expensive, too much BS. Time for a fresh start. Hire County Counsel. A monkey could do this job yet for some reason the superintendent and the last guy cannot.


3 people like this
Posted by mmqbs'r'us
a resident of Duveneck/St. Francis
on Jun 11, 2015 at 6:09 pm

[Post removed.]


19 people like this
Posted by Corp lawyer
a resident of Evergreen Park
on Jun 11, 2015 at 6:51 pm

I watched the meeting, and Townsend's rambling defense of fighting the federal government at taxpayer expense made as little sense this time as it did for the last two years. Muttering about the "guvmint" isn't a way to govern. If Townsend has a clear case to make about how this million dollars benefited students in the district, she should make it. Otherwise, the fact that she stood around cheering on this firm in a fool's errand doesn't impress me.


20 people like this
Posted by Accountability please
a resident of Midtown
on Jun 11, 2015 at 8:34 pm

Thanks Mr Dauber, you are doing exactly the job we voted for you to do. Lot that money back in the classroom where it belongs.


4 people like this
Posted by A PAUSD Parent
a resident of Another Palo Alto neighborhood
on Jun 12, 2015 at 3:06 pm

It's too bad we are a district of such chickens (I include myself), or we would just simply recall Townsend, Caswell, and Emberling, should they try to continue giving so much school money to any more gold-plated turkeys.


Sorry, but further commenting on this topic has been closed.

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