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.