Officials who influence allocations of public funds must be accountable and free of self-dealing.
That's why the recent response by Greg Rolen, attorney for the Mt. Diablo Unified School District, to my request for records was so disturbing. On Monday, school board trustees will consider the matter, and must choose between their lawyer's stonewalling and public transparency.
At issue is the surprise April 2012 board decision to extend for an extra year, through June 2014, the contracts of five senior staff members, including Rolen. The extensions meant that past trustees were tying the hands of those elected in November 2012, making it more costly for them to fire top administrators.
For Superintendent Steve Lawrence, that meant his salary, set in 2010 at $249,500, would once again increase at an annual rate equal to at least the Consumer Price Index plus 1 percent. The size of that automatic increase seems to violate state law that went into effect last year.
There were also questions about the paper trail. No contracts were drafted for public review before the vote. Although the board approved contract "extensions," the subsequent documents instead rewrote the original contracts to show new expiration dates, removed a clause in Lawrence's agreement, and altered the vacation accrual policy for another administrator.
Those final documents were never brought back to the full board for review. Four board members
It all smells. Did the administrators seek the extensions? What justifications did they offer? Did anyone raise concerns? Why was nothing prepared for review before the vote? Who made the contract changes? Were the original contracts changed rather than amendments written to get around the new state law? Why the months of secrecy? Who provided legal review?
If it was Rolen, that would seem a conflict of interest. One contract was his and another was for Lawrence, to whom Rolen reports for part of his job.
As we raised questions, others challenged the legality of the board vote. With a new majority after the November election, the school board hired an outside attorney to look into the matter.
Meanwhile, we tried to dig deeper. In January, I requested all documents and communications pertaining to the contract extensions. Rolen responded saying the district was searching for documents.
He added that he had been asked to look at the contracts when they were amended to ensure the dates were correct. He implied he did nothing more. And he added that he did not "negotiate, draft, examine or alter my contract in any manner."
But when it came time to produce documents, Rolen claimed attorney-client privilege. After previously implying he had provided no legal review of the contracts, he now suggested just the opposite.
If there was no legal advice provided, how can there be an attorney-client privilege to those communications? Or, if Rolen did provide legal advice, didn't he have a conflict of interest doing so, and responding to my request? Or, if other attorneys provided legal advice to the board about Rolen's contract, it wasn't his place to assert a privilege.
Rolen also claimed documents were protected from disclosure because they would reveal internal deliberations. That's right, they would. That's why we asked for them.
California courts have never recognized the narrow "deliberative process" exception to records disclosure as extending to either internal communications among state or local agency employees, between them and elected officials, or between the officials. And it has never been applied to issues of public employees' compensation.
Moreover, the privilege Rolen asserts is not his. It belongs to his clients, the school board trustees. They can waive it, if they choose. Indeed, they are ultimately responsible for the district's decision to withhold or provide documents.
That's why I've resubmitted the records request directly to the trustees, three of whom recently said they want to begin a new era of transparency. At 5 p.m. Monday, they will discuss the request in open session.
We'll be watching.
To read our records requests and Rolen's responses, go to contracostatimes.com/daniel-borenstein. Contact columnist and editorial writer Daniel Borenstein at 925-943-8248 or email@example.com. Follow him at Twitter.com/borensteindan.