A school board trustee blocked local district leadership’s request to continue retaining a law firm that he says gave the district poor legal advice that led to a recent failed lawsuit.
At the June 21 meeting, Trustee David Gerard demanded that Burke, Williams & Sorensen, LLP be replaced by another credible one because they steered Morgan Hill Unified School District into unsuccessfully suing the Santa Clara County Office of Education. That case was an attempt to reverse the county’s decision to approve the Voices-Morgan Hill charter petition.
“I just wonder sometimes that the superintendent is being well served by some of the legal advice that he gets,” said Gerard, who pulled the item from the consent calendar (which typically doesn’t call for any discussion) and into public session to make his point.
Gerard mentioned the district’s recent legal shortfall against SCCOE, regarding Voices, that will cost MHUSD upwards of $60,000 for its own attorney fees plus absorbing the county’s legal defense tab. Those figures are still being tabulated, according to county staff.
“I’m very interested in having our district take a less litigious view on certain things that we’ve seen in the past and try to work with the party,” said Gerard, praising the facilities agreement worked out with the Charter School of Morgan Hill that spared both sides from a costly court battle. “I’d like to see more of that happen.”
The district’s agreement with the three law firms (Lozano Smith and Orbach Huff Suarez & Henderson being the other two) expires June 30 and they wanted to renew the contract for another year. The agenda item was originally proposing a three-firm, $350,000 legal services agreement for the 2016-17 academic year.
But, after Gerard’s comments in opposition to such a move, Trustee Donna Ruebusch’s motion to approve—seconded by Board Vice President Ron Woolf and supported by Board President Bob Benevento—fell short of receiving a majority fourth vote. Gerard and Trustee Rick Badillo voted against it, making it a 3-2 tally. Trustee Gino Borgioli, who had been on conference call but could not be reconnected, was not available at the time of vote and Trustee-in-waiting Tom Arnett, who was in the audience, won’t be sworn in until August.
“These are recognized firms that do school law up and down the state and it’s standard practice for districts to retain (them) at a better rate,” said Ruebusch prior to the failed vote.
After the tally and Gerard’s request for district staff to review other possible law firms for consideration, Ruebusch added: “We are not attorneys ourselves so I don’t know what you’re basing your judgment on.”
Superintendent Steve Betando explained that these are not the only three law firms that the district has on retainer and that the district uses law firms based on their particular expertise. These are just the agreements that they have prepared at this time, he continued.
“What we’re asking is to build these contract agreements so we can utilize the services when we need them,” Betando said.
Ruebusch agreed that this was standard practice for any school district.
“I don’t see this as anything but the ongoing business of the school district and find this to be a very disruptive technique,” Ruebusch said.
Benevento explained that the $350,000 retainer for legal fees is already part of the 2016-17 budget that was approved earlier in the meeting and also accused Gerard of “obstructing the business of the board” by refusing to reconsider his vote.
“I just don’t want to micromanage the whole process and I think that’s what we’re getting into,” Woolf added.
Betando said the three firms in question may be currently involved in pending litigation on the district’s behalf and, by not retaining them, it would also leave the district without legal representation if any other matters were to arise.
Assistant Superintendent Kirsten Perez added: “By not approving these contracts tonight, we have no contracts in place for legal services (since all contracts are set to expire and these were the first renewals.)”
Lozano Smith specializes in areas such as bargaining/labor negotiation, Brown Act/Public Records Act issues and California Environmental Quality Act (CEQA), DTSC compliance. Orbach Huff Suarez & Henderson focus areas are aspects of construction and facilities law.
Gerard wanted the board to table the matter until its next meeting, giving the district time to explore other possible law firms to put on retainer. However, the board is not scheduled to convene again until Aug. 2.
Instead, the board took a 30-minute recess as district staff reviewed the law firms to see their current activity in pending litigation involving the school district. When they returned, Perez confirmed they were working on cases, but Burke, Williams & Sorensen was only involved in the one against the county for a possible appeal.
Gerard then made a motion to approve the $350,000 retainer for legal services, excluding Burke, Williams & Sorensen from the list of approved law firms. That motion carried 5-0.
