SAN JOSE -- The Santa Clara County Board of Education used the wrong boundary map when it chose its newest trustee, Darcie Green, and should hold an election to fill the seat, the county district attorney has said.
Because it based eligibility on the newly drawn trustee-area lines -- updated after the 2010 Census -- Green's appointment is null and void, District Attorney Jeff Rosen wrote in a letter to county Superintendent of Schools Xavier De La Torre. Rosen advised the County Office of Education to call an election to fill the seat.
"Someone made a mistake," said deputy district attorney John Chase.
An election could cost anywhere from $617,500 to $1.07 million, according to Elma Rosas of the Santa Clara County Registrar of Voters.
Last fall, in filling the seat vacated by the resignation of Craig Mann, the board's attorneys advised that it could choose whether to use the old or the new boundaries of Mann's district, Trustee Area 6, said Joseph Di Salvo, who was board president at the time.
"We had broad discretion to determine which of the two to use," Di Salvo said. He said the board's attorneys at the Lozano Smith law firm of Monterey offered the advice.
The seven county school board members each represent an area of the county. Last February boundary lines were redrawn to balance the numbers of constituents in each district, and Mann's Area 6 was broadly reconfigured to include roughly the areas covered by the
Attorney Lou Lozano declined to comment on the issue. He has advised the board to discuss Rosen's letter in closed session, because of a threat of a lawsuit, he said. Interviews of trustee applicants and votes on appointments by law must take place in open session. The board has placed the matter on its agenda for Wednesday.
Lozano said he didn't remember discussing the boundary line issue with the board. And he also didn't remember whether he attended the Oct. 17 meeting when the board interviewed the five applicants and chose Green.
Rosen's letter was the result of two complaints his office received about Green's appointment. Chase would not name those who complained.
The district attorney contends that the law requires "that any vacancy occurring in the middle of a term of office be filled using the geographical boundaries that existed at the outset of the term." The letter, dated Jan. 9, cited advice from the Secretary of State and the governor's office in filling recent vacancies in elected offices in Madera and Butte counties.
The letter also warns that if the County Office of Education fails to act, the attorney general or a private party may sue to remove Green and order an election.
The second-place applicant for Mann's seat, Javier Gonzalez, expressed surprise and said that he wouldn't be eligible to run for the seat if vacated because he, too, lives outside the old Trustee Area 6.
Another candidate, Anita Sunseri, a former school principal, also was taken aback to hear about the DA's letter.
Frank Biehl, who sat on the committee that redrew the Board of Education trustee area, said, "I'm flabbergasted." He thought the new boundaries went into effect immediately after they were adopted in February.
If the attorney general, the ultimate arbiter in the issue, agrees with Rosen's office, it would be yet another embarrassing and costly decision linked to legal advice given the Santa Clara County Office of Education. The school board has sued ex-Superintendent Charles Weis over his refusal to repay a housing loan, which allowed him not to make any payments until he left office. And the board is trying to renegotiate the same generous deal it extended to De La Torre -- terms which board members have said they didn't know existed in the contract.
Green herself said that she'll follow the advice of the school board's attorney. She said she had sought the appointment based on the new boundary lines. "It was very, very clear there was a new Trustee Area 6. Otherwise I wouldn't have applied."
She said that if an election is called, she wouldn't rule out moving and running to get her seat back. "I have to really think about that," she said, but "I'm open to do anything."
Contact Sharon Noguchi at 408-271-3775. Follow her at Twitter.com/NoguchiOnK12.