Palo Alto school district eyes new special-education services law firm

Legal advisers who represented district in federal civil-rights cases could be out

A law firm whose handling of special-education issues for the Palo Alto school district has been criticized for creating an adversarial relationship with families and contributing to high legal costs could be replaced by this summer.

Superintendent Max McGee is recommending that Fagen, Friedman & Fulfrost, which has represented the district for close to 10 years, be replaced with Atkinson, Andelson, Loya, Ruud & Romo. The Pleasanton-based firm represents many Bay Area school districts (as well as those throughout the state) as well as Special Education Local Plan Area (SELPA) groups, county offices of education, community college districts and universities. The selection will be brought to the school board for approval at its May 10 meeting.

The firm was selected from five (including Fagen, Friedman & Fulfrost) who responded to a Request for Proposal (RFP) for special-education services that the district issued in February. The district sent the request to 10 firms, according to a list provided by the district.

The other responding companies were Lozano Smith, which has worked for the district on issues relating to personnel, the teacher's union and general governance, among others; Walnut Creek-based Best Best and Krieger; and Los Gatos firm McArthur & Levin. McGee and a committee of district administrators -- Holly Wade, chief student services offer and former director of special education; Chiara Perry, current director of special education; Brenda Carrillo, student-services director; Associate Superintendent Markus Autrey and Communications Coordinator Jorge Quintana -- reviewed the responses, interviewed the firms and settled on Atkinson, Andelson, Loya, Ruud & Romo, McGee told the Weekly.

Last June, the school board voted 4 to 1 to renew its contracts with its primary legal firms, including Fagen, Friedman & Fulfrost. The sole opposing vote came from Ken Dauber, who initially brought a proposal to the board to issue a Request for Proposal for special-education legal services.

The firm's unsatisfactory performance, Dauber has said, has cost the district not only financially but also in its relationships with families of children with special needs. Since 2012, the school district paid the firm more than $900,000, according to monthly district reports on payments made to vendors, which were compiled last June. This is compared to about $830,000 paid to another primary firm, 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 estimated $250,000 would be paid to Fagen Friedman & Fulfrost in the 2015-16 school year, according to a staff report.

Parent Andrea Wolf, the mother of a child who received special-education services in Palo Alto Unified, told the board last June that she saw a connection between the rise in legal fees and an "adversarial" relationship between the district and families of children with special needs.

Fagen, Friedman & Fulfrost also represented the district in several investigations the U.S. Department of Education's Office for Civil Rights opened in Palo Alto in response to allegations of discrimination and bullying. The district also paid the law firm just under $50,000 in 2014 to research, develop and follow up on a resolution criticizing the federal agency.

Staff and other board members last June attributed Fagen Friedman & Fulfrost's high bills to the district's need for extra support during a "confusing" and "strange" era dominated by numerous federal investigations.

Currently, separate federal sexual-harassment investigations are still open at each high school.

To prepare for the board's annual review of its law firms last June, Dauber looked at Fagen Friedman & Fulfrost's correspondence with the district over the last two years, which he said illustrated the firm's failure to keep the district in compliance with special-education requirements. The documents also heightened concerns he had about a lack of transparency around the Brown Act and Public Records Act requests, Dauber said.

Dauber also said previously he suggested a prime alternative to Fagen, Friedman & Fulfrost would be the Santa Clara County Counsel, chief legal adviser to county agencies, noting that County Counsel charges much lower rates than private law firms.

However, County Counsel Orry Korb wrote in an email to the Weekly that his office did not to respond to the district's Request for Proposal.

"Our office does not have expertise in special education issues from the school district perspective, and counties and school districts can be in conflicting positions regarding responsibility for the costs of providing special education services to disabled school kids," he wrote.

While the new firm still has to be approved by the board, Dauber said he's "optimistic" that replacing Fagen, Friedman & Fulfrost "will result in lower legal fees, better advice and a less adversarial relationship with special education families in the district."

McGee told the Weekly that he was impressed by the "depth of experience" Atkinson, Andelson, Loya, Ruud & Romo possesses with other school districts.

According to its RFP, the firm "work(s) closely with our clients to proactively control legal costs. Our goal is always to achieve the best result of the client at a minimum expense, and we pride ourselves on success in this area."

The district is currently working on a "seamless transition" from one firm to the next, McGee said, though the new firm must first be approved by the school board. It will be brought for discussion at the board's May 10 meeting.

In the meantime, Fagen, Friedman & Fulfrost will finalize any still-open cases, McGee said. New cases will be opened with the Atkinson, Andelson, Loya, Ruud & Romo team.

The new firm will also represent the district in ongoing Office for Civil Rights investigations. Until the firm starts, McGee and Wade are "handling discussions" with the federal agency, the superintendent said.

McGee told the Weekly he has also decided against hiring a general counsel, a new position the board approved at his recommendation last June. At the time, he argued that an in-house attorney would save the district money and make the organization more efficient and effective in handling legal matters. Four months later, he decided to postpone hiring for the position after extended disagreement on the board over whom the new in-house attorney should directly report to: the board or the superintendent. While McGee said in October that he would still like to have a general counsel hired by July 1, 2016, he now says that the district is getting "plenty of support" from its current firms and that there are "more pressing priorities" facing the district.

The district is also awaiting results and recommendations from a review of its special-education department and services conducted by Thomas Hehir, a longtime special-education advocate and Harvard University Graduate School of Education professor. McGee said at Tuesday's board meeting that preliminary results will be shared with the board in June, and he hopes Hehir's recommendations can help inform changes as soon as the 2016-17 school year.


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17 people like this
Posted by Parent
a resident of Charleston Gardens
on Apr 21, 2016 at 3:53 pm

Great news. Turning the page on OCR and getting better treatment for special Ed families makes good sense.

23 people like this
Posted by Honesty
a resident of Gunn High School
on Apr 22, 2016 at 8:00 am

Is that really possible with Wade and Carrillo in charge, and choosing the new firm? I have never dealt with such calculating dishonesty and backbiting in any area of life. Restoring trust has to include removing the dishonest brokers. Unfortunately, the inclination of McGee to cover up (just better at it than his predecessor) is giving every indication of eventually sinking him like his predecessor. To solve problems, especially the difficult ones, the district has to find employees who are honest, caring, hardworking to a fault, especially when they don't feel like it. School districts deal with everyone, and legally must be fair and open. If this law firm is able to get McGee to clean house, apologize on behalf of the district when called for, and continue in an open collaborative way with all families, then he will be worth every penny. It's not looking good, though.

28 people like this
Posted by Opaque Process
a resident of Community Center
on Apr 22, 2016 at 11:35 am

Glad they will get a new law firm, but concerned about how they went about it.

"McGee and a committee of district administrators -- Holly Wade, chief student services offer and former director of special education; Chiara Perry, current director of special education; Brenda Carrillo, student-services director; Associate Superintendent Markus Autrey and Communications Coordinator Jorge Quintana -- reviewed the responses, interviewed the firms and settled"

These are the same people who ran up the high legal expenses and created the adversarial environment over the past 4 years. Holly Wade advised to bring legal actions, testified against the families, ran up the bills and then often had to settle the case. Having Chiara Perry and Brenda Carrillo does not provide greater protection or representation - Holly Wade is their boss!

It is too bad the RFP was not make public BEFORE the firm was selected, and the public did not know the selection process. McGee made a cryptic statement at a Board meeting, but beyond that the public could not obtain information about the process until it was too late. This casts a negative shadow on McGee, key selector Holly Wade, and the new law firm.

Too many people involved in the selection report to Holly Wade. This all came about from a reorganization that was also largely kept from the public. Wade's job was posted so she was the only person who could apply for it obtain it (posted for only internal candidates for only 1 week). She planned the promotions of Carrillo and Perry. THat is not saying anything about their performance, just that the process they were promoted was and is concerning. Wade has total control of all psychology, special education, mental health, emotional wellness, testing and evaluation for any special health and mental health services, and legal firms to sue disabled children. This is exactly what she did. Over and over again.

At least a single Board of Education member could have participated. They were promised as part of approving the reorganization they would be allowed a role in the hiring and interview of the new legal counsel, and told if they just approve all these promotions and wait, in 90 days parents would get to have input into legal firm's bad treatment of them.

By now killing the hiring of a general counsel and hiring a special education legal firm with only the input of the secret promoters, parents, faculty, and board members have been locked out forever. Sadly, Wade and McGee know that their actions toward parents will remain forever hidden. The opaque promotions are made permanent (and subsequent hiring of all people she wanted, evidenced by opening jobs to only internal candidates or, somewhat bizarre, only to current PAUSD contractors. Strange the record the promoted and hired all have in testifying against disabled children. (Testimony is public record.)

Dauber stood alone in revealing the problems with the legal firm. It took courage and heroism. He did not just make empty claims. He alone conducted exhaustive research before he spoke. He not only requested and reviewed all the e-mails with the firm, he met with groups of parents, many of him gave him detailed written documentation showing the negative, contradictory and mean behavior of the law firm and PAUSD behaviors toward disabled children and their families.

At the same meetings, Board Members Heidi Emberling criticized disabled parents and refused to listen to any of their input. Emberling made a particular point to attack and criticize the disabled parents volunteer group for trying to give input, although she had not attended their meetings and admitted she didn't even know when they were held. (This information was all public. Parents managed to find the meetings.)

In keeping the law firm last year, Emberling and Baten Caswell made a strong point that the law firm suing disabled children and their families was only doing what they personally asked the law firm to do. Emberling put her self forth to parents as a Special Education expert who would stop the bullying and fix Special Education. [Portion removed.]

On recordings of Board meetings, you see Board members attacking the federal government, accusing the family of a disabled child and federal workers of evidence tampering and perjury, then saying they didn't. It's on the recordings. Only Ken Dauber took a stand to stop the viscous, immature attacks on people they were supposed to be helping.

They may have had a bad law firm, but Board Members, McGee and District Administrators all made the choice to attack the disabled. The law firm is an outside contract firm. There were a group of employees telling the law firm to behave in an adversarial manner.

Oh yes, Max McGee supposedly did a "review" of all the Special Education incidents where he used legal action against children and families and all of the actions were justified. Funny thing that he settled so many of them. Too bad that "review" was not made public, that he gave no information about what it included, what records he "reviewed" so thoroughly, did not include listening or documenting parents issues of what may have occurred, contacting them, and looking at their records which the District may not have kept. Instead, his statement was a criticism on all the families he used a lawyer to harm, at his direction and the full instruction of the Board of Education. Thanks for doing that, Max McGee and Board of Education.

[Portion removed.] It is unlikely the disabled children will ever recover. Agreed, personal written apologies against the families and children the District choose to harm would go a long way toward healing, but do not expect that. Expect McGee to say at the next Board meeting the process of choosing the new wonderful law firm was fully inclusive and transparent. It wasn't.

11 people like this
Posted by Oh, NO
a resident of Old Palo Alto
on Apr 22, 2016 at 11:40 am

Oh, NO is a registered user.

[Post removed.]

16 people like this
Posted by I expect nothing
a resident of Downtown North
on Apr 23, 2016 at 12:58 am

[Portion removed.] Why in the world do you waste so much time fighting w parents and wasting IEP time, teacher time, aide time, etc. I look forward to collaborating with you along with my legal team.
Teachers, principals and other staff, you are all good and most of us know you don't make decisions but do what administration tells you to do. Keep on caring for all kids and stop asking for pie money.

21 people like this
Posted by Honesty
a resident of Gunn High School
on Apr 23, 2016 at 8:59 am

How can they look in the mirror? Did you hear this Forum program? Stanford Prof Albert Bandura: How Good People Can Do Bad Things and Feel Good About Themselves Web Link

You should seriously listen because it gives some analysis on what you can do about situations just like this, where people do terrible things where they have no idea of the true consequences but justify it to themselves. [Portion removed.]

If you do have a legal team, invite other parents to share their stories....

I'm very sad because McGee has no idea what really goes on and doesn't want to know. The problem we had was not Skelly but the ones in the office who are sinking McGee just like they did Skelly - encouraging the secrecy, coverup, adversarial relationships, paranoia about parents' motives. So sad.

14 people like this
Posted by Parent
a resident of Midtown
on Apr 23, 2016 at 12:12 pm

Hopefully this will be better as I don't know how it could be worse. The special education team at PAUSD is a disaster. It seems to me that it must come from the top- either ignorance, or willful obstruction, probably a combination of the two; either way it leads to utter incompetence, and the real losers are the children. By the time parents realize that the school is not actually going to help their learning disabled children, years have gone by. And then it's an uphill battle to try to get appropriate help.

25 people like this
Posted by Distressed
a resident of Old Palo Alto
on Apr 23, 2016 at 4:29 pm

Distressed is a registered user.

Worried to hear that the former special education head was involved with this.

She seemed to be particularly unkind to special education kids and unresponsive to us parents.

14 people like this
Posted by Parent
a resident of Gunn High School
on Apr 23, 2016 at 5:09 pm

This is great news. You don't get much more corrupt than Fagen, Friedman & Fulfrost. [Portion removed.]
When you see all the money that goes towards the children of the rich in this town...unnecessary programs that make the rich feel like their average child is special and headed for greatness....absurd programs like this new "research program"...PAUSD can find all the money they need to make average children think they are "special", but they would rather pay a settlement than take care of kids with special needs.
Good start Max. Keep going!!

10 people like this
Posted by Remedy
a resident of Jordan Middle School
on Apr 25, 2016 at 1:25 pm

[Post removed.]

8 people like this
Posted by Reasons
a resident of Downtown North
on Jun 6, 2016 at 2:54 pm

It is disappointing in the only public Board meeting discussion of changing law firms, the Superintendent gave the reason that the new firm knows about new legal requirements, such as related to OCR. That is important, but the lack of any reference to hiring a firm that will be more polite and positive than the past firm sends a message the Superintendent and Board don't care. Granted, the Board made their own choices. They choose and instructed their law firm to be rude, adversarial and against disabled children. The law firm followed instructions of the folks who wrote the paychecks, and that won't change. There was a hope, however, a new firm would advise the District their behavior isn't effective and results in lots of expensive legal bills.

@ Distressed and @ Remedy: Regarding Dr. Wade and the many complaints about her, if you watch the Board meetings and attended election events, Board Member Ms. Emberling holds her as a favorite. She appears blind to parent or teacher complaints and reports of what really went wrong. Wade was promoted and protected no matter what parents and teachers reported. Dr. McGee showed he simply does not care, and said what was important to him was efficiency reporting to him. That is a far cry from truly educating the weakest of our children and behaving respectfully or productively to families and teachers.

Ms. Emberling believed Dr. Wade achieved 100% full inclusion from day one, and stated at schools all the disabled children now have all the support they need. Ms. Emberling also publicly blamed mentally ill children for high expenses after the State changed its funding model, and set forth Dr. Wade as the savior. Funding model changes happened years ago, and the Board has had ample opportunities to fund services for the mentally needy children if it wanted to. Ms. Emberling choose not to do so, even with large surpluses. Her choice, her priorities.

We won't be able to know the truth about real problems in Special Education and Counseling because Dr. Wade was promoted after she already choose the Special Education evaluator to evaluate her own work and departments. She and the Superintendent control this evaluation, and will see it before any Board or families do. There is a lot to be worried about.

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