Will the Palo Alto school board ever learn that the legal advice it gets doesn't always serve the public interest?
Following years of frustration with its prior law firms and the routine guidance they gave to withhold information from the public and aggressively defend, at great expense, the district against parent complaints, the school board ditched its two primary firms two years ago with high hopes of obtaining better representation and showing the public it really believed in maximum transparency and less opposition, whenever legally possible.
So far, not only have legal costs soared well beyond the high billings of the previous firms, but the same old law-firm attitudes against transparency continue to improperly guide many district decisions on releasing public records.
The latest embarrassment occurred Tuesday night, when the board agreed to a settlement that included a provision written by its lawyer, Mark Davis of the San Jose litigation firm Davis & Young, that barred both sides from disclosing the amount of the settlement and "contacting the press."
Public agencies in California may not legally withhold information on settlements, so the provision was a deliberate attempt to throw obstacles in front of disclosure.
The school board should have rejected the clause and admonished its lawyer to never include such a provision in the future.
According to school board President Ken Dauber, the terms of the settlement were not known to the board until presented by Davis for approval in closed session Tuesday.
While Dauber could not disclose anything about the board's discussion since it was a closed session, he told the Weekly he intended to ask for a future agenda item to discuss the district's policy on confidentiality provisions and transparency of settlements of claims made against the district.
By law, a public agency must disclose legal settlements and payments upon request, and it must announce any "actions" taken in closed session. A confidentiality provision such as the one inserted by the district's law firm therefore has no legal standing and is entirely designed to make it less likely that the public will ever find out about it. It's also an attempt to prevent board members and the superintendent from answering questions or making any comments.
In many communities, where public and media scrutiny is minimal, this cynical strategy to circumvent the intent of the law could be successful. But in Palo Alto there is virtually no chance that such a closed session agenda item would go unnoticed. Unless, of course, it wasn't properly placed on the agenda as required by the Brown Act.
That is exactly what happened in this case. The original agenda posting for Tuesday's closed session incorrectly cited the case to be discussed by using a meaningless internal school district reference number. The law requires that the agenda state "the title of or otherwise specifically identify the litigation to be discussed," and after seeing the agenda the Weekly requested the proper citation of the case, which was then updated with the federal court case number but still lacked the title of the case, "James Chadam et al vs Palo Alto Unified School District." But with the case number the Weekly was then able to access the proposed settlement in the court file.
Unfortunately, it's not the first time the Weekly has had to point out the improper posting of closed session items pertaining to litigation or prod the district into releasing public documents that one of its law firms advised against.
The settlement in this case will pay $90,000 to a child whose medical information was shared by the school district with two unrelated parents of children with cystic fibrosis. The child's attorney will receive attorneys fees totaling $60,000. But that $150,000 expense does not begin to capture the costs of fighting this family for almost five years in federal court. The total cost will have to await the district's response to a Public Records Act request by the Weekly for the law firm's billing records.
This case is yet another example of why the school district needs to hire a competent general counsel who can manage the legal strategies and expenses and help the board understand the line between legal requirements and transparency. Even with good intentions, the board and superintendent are ill-equipped to do this and almost always will simply follow the advice of their attorneys.
California law firms representing school districts are in lock-step believing their job is to arm their clients with ways of denying requests for public records. It's long overdue for the school board to embrace the opposite philosophy, that records are assumed to be public unless there is a clear legal necessity for them to be withheld.