The Superintendent Cannot Choose Your Doctor Either
Imagine a world where a bureaucrat can choose the one person with whom you share your greatest confidences, personal information, goals and vulnerabilities.
Imagine a world where that same bureaucrat can use that vital information to control you, invade your privacy and harm your well-being.
Imagine a world where this cruel hoax is government-funded.
I am not asking you to imagine socialized medicine in Albania, but instead this scenario is playing itself in California County Offices of Education. Yes, and it took a “knock down drag out,” fight in Orange County to flip the script.
Education Code section 35041.5 provides that county superintendents and boards must jointly appoint the General Counsel. Stated differently, because the County Office of Education and the County Board of Education share their General Counsel, they must choose that person together. Just like you can choose your own doctor, County Boards get a say in selecting their lawyers. It just makes sense.
But that did not make sense to Orange County Superintendent of Schools, Al Mijares. When former Orange County Department of Education General Counsel retired, the Orange County Board of Education wanted to participate in choosing its lawyer. They wanted to have someone who would represent their interests, hold their confidences inviolate, and someone they could trust.
But, Mijares, and the County Superintendents could not have that; and they would literally stop at nothing to deny Board involvement in choosing their own lawyers.
In California, county boards of education have statutorily enumerated duties and responsibilities, including, approving the budget, reviewing charter petitions, and hearing expulsion and inter-district transfer appeals. It is difficult, if not impossible, for county boards to perform their duties without legal advice and representation.
The separately elected superintendent has separate duties, most notably approving or disapproving county school district budgets. As such, county superintendents can wield great local power. In Orange County, Board President Dr. Ken Williams and the Board asked to participate in selecting their lawyer. On April 11, 2018, Mijares publicly promised the appointment would be “unanimous.” However, by the June board meeting, Mijares had hired the Board’s lawyer for them. The Board saw no application, did not interview, did not vote and did not approve the new General Counsel, Jeffrey Riel. So, the Board and Mijares found themselves in a legal dispute and Mr. Riel was both parties’ lawyer.
You do not have to be Alan Dershowitz to see that is a classic “conflict of interest.” Since, the Board needed outside counsel to perform their statutory duties they retained a venerated Orange County education law attorney. But Mijares sent his enforcers, including Mr. Riel, to not-so-subtly dissuade her from taking the job. “You will never work in Orange County again…,” or something like that. Counsel reluctantly withdrew. This left the Board with no lawyer, no local prospects, but a job to do. So, they went beyond Orange County to find someone stupid enough to take the job, me, San Francisco education law attorney, Greg Rolen.
Education code section §1042(d) provides that a County Board of Education may: “Contract with and employ any persons for the furnishing to the county board of education of special services and advice in…, legal, … matters if these persons are specially trained and experienced and competent to perform the special services required. “I have been practicing education law for over 25 years, represented many school districts, served as General Counsel to a large suburban school district, have been widely published, and made law with a Ninth Circuit published decision in Special Education. How hard could it be? I was about to find out… remember, literally stop at nothing.
Upon submitting the firm’s contract for approval, Mijares and his lawyers sent me and my boss a letter saying our retention was an illegal “gift of public funds,” and we would not be paid. Tactics like that tend to work on managing partners. However, we reasoned since I would be the Board’s lawyer, there was a clear “conflict of interest,” and the “gift of public funds” argument was laughable and we would have to get paid. Wrong! Although we provided valuable service, and the Board passed multiple resolutions approving payment, like the Germans at the Siege of Leningrad, Mijares withheld payment to starve us out. Since only Mijares could sign pay warrants, he figured if we were not paid, we would stop working, the Board would have no lawyer and they would inevitably succumb. It almost worked.
The Board went to court to get me paid. On July 25, 2019, the Orange County Superior Court ordered Mijares to pay our bills. Mijares always said that he would pay me when a Judge told him to do so. So he did. Then he did not. Mijares hired a second law firm, at further taxpayer expense, to appeal the order to further delay payment. Further starvation. Remember, stop at nothing.
I continued working through COVID -19, not knowing whether I would get paid and believing Mijares would appeal any adverse ruling to delay payment indefinitely. The Board also persevered making several attempts to settle, but the parties ultimately went to trial. Then, on February 9, 2021, over 2 years after I was retained, lightning struck! The Court issued its tentative ruling, stating among other things, “There’s sufficient evidence to indicate that Dr. Mijares used his position to coerce the Board to accept his authority to hire Mr. Riel. The actions that have been taken to not pay Mr. Rolen had serious consequences, not only to the Board, the party here, but to Mr. Rolen and his law firm … So it appears that it is retribution to the board for suing, retribution for the board for picking a new lawyer.” I guess I am not paranoid.
Again, like the Germans at Leningrad, Mijares was pushed into general retreat. He offered to pay our entire bill and have me remain the Board’s lawyer. Why now after approximately 2 ½ years and over $3 million in attorneys’ fees? Because he was going to lose, and lose big. Mijares and other County superintendents understand what played out nationally, controlling the lawyer is controlling the message, the agenda and the organization. Mijares simply could not abide the Board having counsel not beholden to him.
This is much more than a naked power play, or one-man’s vendetta, but instead it is a seachange in California educational governance.
Now, county board members have a real and powerful voice in setting policy. Historically, county superintendents have told boards seeking novel policy initiatives, “you cannot do that,” or, “that is my job, not yours.” They rely on their attorneys, ostensibly also board attorneys, to legally justify their inexorable decision-making dominance. After Orange County, all 58 County Boards now know they can help select those attorneys and ask for second opinions if something does not seem right. This not only empowers board members, but also the voters who elected them. Who knows what may happen in California if locally elected board members stand up and say, “no, we think we can do that.”
Dr. Mijares, you cannot select the Board’s lawyer, and you cannot select their doctors either.
Gregory J. Rolen, is a guest contributor to California Policy Center and a partner at Haight Brown & Bonesteel LLP. He is currently retained by the Orange County Board of Education.