A new Mt. Diablo school board majority deserves credit for trying to reroute the district onto a track of transparency despite its conflict-ridden attorney's attempts to derail the effort.
The struggle between three trustees and General Counsel Greg Rolen exemplifies what can happen when a government lawyer overreaches, forgetting elected officials chosen by the voters are ultimately in charge.
At issue is our request for documents pertaining to contract extensions last year for Rolen, Superintendent Steve Lawrence and three other top administrators. The records might answer questions about development of the deals, including what role Rolen played in reviewing his own contract.
Rolen responded to our request under the state Public Records Act by claiming the documents are privileged. As I detailed last week, his arguments are legally flawed and his involvement raises serious conflict-of-interest issues.
Ultimately, if a privilege exists, it belongs to the five-member school board. For years, this district was run by trustees who relished secrecy and would have gladly embraced the attorney's claims on their behalf.
But three trustees elected in the past two elections -- Cheryl Hansen, Brian Lawrence (no relation to the superintendent with the same last name) and Barbara Oaks -- recognize that Rolen shouldn't be deciding what's released about his own contract.
After Rolen denied us access, I appealed directly to
The trustees had a logistical problem. They were being asked to determine whether documents should be released, but they hadn't seen most of them. Under state law, they couldn't go into closed session to discuss a potential legal issue without their lawyer, but, in this case, the attorney had a huge conflict.
So Hansen wisely proposed hiring the outside lawyer. Some board members were understandably concerned about the legal costs, especially since they didn't know the number of documents that person would have to review.
When trustees asked Rolen how many records there were, he repeatedly refused to answer, claiming doing so would waive attorney-client privilege. He said he could only answer in closed session.
When Brian Lawrence suggested trustees publicly waive the privilege pertaining to the number of documents, Rolen insisted they would first have to discuss that in closed session. Pressed time and again, Rolen finally said he thought there were less than 100 documents. But that's as specific as he got.
As the vote drew closer, as it became apparent that the board intended to hire an outside attorney, Rolen's comments grew more desperate. At one point, he suggested that a judge could look at the documents instead, which would require someone to file a lawsuit.
We have not threatened litigation. Indeed, we hope that the board majority, when it has objective legal advice, will respond responsibly.
Eventually, Rolen's arguments became absurd. "What you're suggesting is hiring counsel without board approval who does not have a fiduciary obligation to the school district to provide counsel regarding the waiver of privileges and the disclosure of documents."
Huh? The board majority voted to give two board members approval to make that hire. And any attorney they hire will clearly have a responsibility to protect the interest of the client.
Finally, in desperation, Rolen argued that retaining outside counsel would be "imprudent." "It's like hiring some random attorney that doesn't have your interest at heart," he said. It was a silly argument.
Indeed, "there are so many things he said that are wrong," explained Michael Martello, a government attorney for 30 years and an expert on California conflict-of-interest law, who watched the video of the meeting.
For example, Martello said, Rolen could have publicly told the board how many documents were involved. He should have stepped aside the moment his clients expressed concerns about a possible conflict of interest. And, as for the comment about outside counsel lacking a fiduciary duty, "he must be making that up. That is not a real concern."
For the board meeting video, last week's column, 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.