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.