Settlement Sets Stage for County Boards to Co-Appoint Their Legal Counsel

In a case of first impression, the Orange County Board of Education now has the right to retain its own lawyer. The settlement sent shockwaves throughout the California education law community and paved the way for some or all of the 58 County Boards to co-appoint their legal officer shared with the County Superintendent.

The dispute arose when the Orange County Superintendent of Schools, Al Mijares, unilaterally hired the Board’s General Counsel. Despite multiple assurances to the contrary, the Superintendent contravened Education Code §35041.5 which requires the Board and Superintendent to jointly appoint the same legal counsel. Believing there was an ongoing conflict of interest, the Board retained its own counsel pursuant to Education Code §§1042 (d), 1621 (c), Gregory J. Rolen of Haight Brown & Bonesteel (“Haight“). However, after first threatening to not pay Haight the Superintendent then baldly refused to pay invoices setting the stage for a protected legal dispute and 22-day bench trial.

The trial was a combination education law hypothetical and civics tutorial. In a remarkable tentative ruling the Judge addressed not only legal ethical issues such as “conflict of interest” and “coercion,” but also unpacked the statutory authority conferred on two equally-elected sovereigns: the Board and Superintendent. Finally, the Judge tackled the very real, professional and personal implications, for both attorney and client, of the Superintendent withholding payment as a litigation tactic in a statewide political power struggle. The case settled on the heels of the Judge’s tentative ruling.

Gregory J. Rolen is a Partner at Haight Brown & Bonesteel and is currently retained by Orange County Board of Education.

March 2021