chool boards are corporate bodies created for the purpose of implementing state legislative policy and locally administering the state’s system of public education. School boards may only act as a “whole,” or by majority rule, unless a duty or responsibility has been delegated or assigned to individual board members or a committee of the board. No individual board member has authority to bind the school district independent of the decisions of a majority of the board.
One power and duty of a school board is to hire legal counsel. California Education Code §§ 35041.5, 35204, and 35205 authorize the governing board to hire an attorney as a district employee or independent contractor or to contract with a law firm to provide legal services for purposes deemed appropriate by the board. Education Code § 35041.5 specifies that a county board of education and the superintendent of schools of the same county are required to appoint the same legal counsel to provide unrestricted, independent advice to the board. (86 Ops.Cal.Atty.Gen. 57 (2003).) Notwithstanding this specific requirement for county boards of education and county superintendents, school districts and county offices of education engage legal counsel from a variety of sources, including employing an internal general counsel, contracting with one or more private law firms, or contracting with a government agency, such as a county counsel or joint powers authority. According to the Rules of Professional Conduct of the State Bar of California, when an attorney is hired by an organization such as a school district, the attorney’s client is the district as a whole, and not any individual board member or employee. (California Rules of Professional Conduct, Rule 1.13.)
The school board may delegate its authority to hire legal counsel to the superintendent, or specify that a particular legal representation is for a specific purpose or subject matter, and this delegation of authority should not be confused with hiring an attorney for the superintendent as an individual or on a specific subject matter. Although the attorney may spend the bulk of his or her time assisting the school administration on legal matters, he or she is ultimately responsible to the school board. This is an important concept for board members, superintendents and other school district employees to understand. Frequently, the superintendent is the person who deals with the lawyer on a regular basis. The lawyer’s professional obligations to the school board as a whole cannot be obfuscated by any individual board member or administrator. For example, if a newly hired superintendent asks the district’s attorney to review his proposed contract and the lawyer notices an unusual benefit contained in the contract, she has an obligation to alert the school board. When the lawyer confers with the administrator even on a day-to-day basis, she is obligated to provide legal advice to the school district as an entity, not to the administrator as an individual.
In many situations, this may seem like a distinction without a difference. The school district and the administrators generally have the same interests, and the lawyer should be working closely with key staff to handle the day-to-day legal problems of the school district. In most situations, there is no need to worry about “who the client” really is. There are, however, situations where the interests of individual administrators or board members and the school district as a whole are in conflict, such as when the board decides to dismiss its superintendent. If a conflict arises between the school board and the superintendent, the lawyer’s first obligation is to represent and advise the board as a whole.
Another area of potential conflict is when the school board conducts adjudicative proceedings, which are “due process” hearings, such as classified termination, probationary credentialed termination, inter-district transfer application and expulsion or student discipline proceedings. Typically, the school district’s attorney will work closely with the superintendent or administrators in preparing such cases for hearing. Because the school district’s attorney has worked so closely with the superintendent and administration, he or she would be conflicted from being able to advise the school board as the decision-maker in the same proceeding. The reason for this is that the constitutional guarantee of due process of law requires a fair hearing. A hearing is not considered fair unless the decision-makers are free of bias for or against a party. When the same attorney advises one of the participants in the proceeding, and then later advises the decision-makers of the proceeding, the hearing is considered unfair and in violation of due process. To avoid this, a second attorney advising the decision-maker should be screened from any inappropriate contact with the attorney advocating for the administrator. This is commonly referred to as the Howitt rule. (Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1587.)
The Howitt rule also means that two attorneys cannot be from the same private law firm, although they may both be from the same government agency. In Sabey v. City of Pomona (2013) 215 Cal.App.4th 489, 496, the Court of Appeal held that avoiding potential conflicts by implementing the Howitt rule is available only to government lawyers, as government lawyers do not owe each other fiduciary duties. In contrast, the Sabey Court found that partners in a private law firm are fiduciaries to each other, and also have an incentive to build the reputation of their firm so that it will be profitable in the future by obtaining new and repeat business. The Court said it is logical to presume that a partner would want to make another partner look good by seeking — consciously or unconsciously — to validate the job done by that partner. Thus, applying the Howitt rule between lawyers of the same private firm is disallowed. School districts are therefore barred from using an attorney from a private law firm as an advocate in a contested matter and another attorney from the same firm as an advisor to the school board, sitting as the decision-maker in the same matter.
When employing legal representation, school boards should clearly define who has direct access to the district’s attorney. Generally, it would be the superintendent and board president. The board, the superintendent and the school board’s attorney are a team and need to be able to work together cordially and efficiently for the benefit of the school district. When an adjudicatory proceeding is anticipated, and the school board has hired a private firm for legal representation, the school board should discuss the specific role of the attorney in the proceeding. The school board should be mindful of the Sabey decision and know that if the attorney works closely with and intends to present the superintendent or administration’s case in an adjudicative proceeding, the school board may not be represented by that attorney or another attorney from the same firm during the pendency of the hearing.
CSBA Model Policy BP 9124 provides more information on the duties of a school district’s legal counsel. CSBA model policies are available as a subscription service. Please contact the Policy Service Department for access to CSBA model policies. If you have specific questions regarding this guidance, please consult your district’s counsel.