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The Orange County Board of Education and Department of Education agreed to separate their legal teams after spending over three million dollars in taxpayer money arguing the issue in court.
The settlement is an end to one of the long standing battles between the board and Superintendent Al Mijares, who have clashed repeatedly over the last three years, but as both are elected by the public neither can get rid of the other except at the ballot box.
This isn’t the only lawsuit these two are caught in: the board has also sued Mijares and the state over control of the budget, setting up a potential precedent that could shape the balance of power between education boards and superintendents statewide.
The dispute started back in 2018, when Mijares appointed Jeffery Riel as legal counsel for the board and the department. While he consulted with an executive panel of two members from the board, the decision was never brought to a public vote.
Following the 2018 election, a new board majority pushed back on that decision, saying they had a legal right to choose their own lawyer, and argued Riel’s representation would be a conflict of interest because he previously worked for a district suing the board.
When Mijares refused to replace Riel or bring his appointment to a vote, the board sued him.
Under the settlement approved at the end of February, the board will be allowed to permanently hire Gregory Rolen of Haight Brown & Bonesteel as their legal counsel, who has been representing them since Sept. 2018.
The department will also be required to pay out nearly $300,000 in legal fees to Rolen for his past work and manage his payment going forward. Until now, Mijares had refused to pay any board appointee for legal services, arguing that Riel was their hired counsel.
According to a statement from the board earlier this month, Riel and Mijares personally told candidates for the board position they would not be paid, which Judge James Crandall said created another conflict in Riel’s attempts to represent the board.
“As soon as [Mr. Riel] had this issue presented to him and he chooses one client over another because he’s the lawyer for both the Board and Superintendent, that conflict is cast in concrete,” Crandall said in a preliminary ruling according to a statement from the board. “So it appears to me that the Board was right in picking their own counsel because…they have a right to a lawyer they can trust.”
The department will get to keep Riel as their legal counsel, and he will still manage the general counsel’s office, which handles the rest of the department’s litigation and advises school districts.
Mijares asked for the settlement after the judge issued the preliminary ruling siding with the board, agreeing to withdraw his motion to reopen the case to add more evidence, although he said the ruling against him was not the reason for it. In exchange, Riel was guaranteed his position.
According to a statement filed in court by the department, Crandall called the settlement a win for both sides.
“Neither side should attempt to use (the settlement) in any way publicly to either belittle or in any way criticize the other side. This was a fair resolution where both sides walk away with something they came into the litigation seeking to obtain,” Crandall said. “So I hope we can go forward with the spirit that this is mutually beneficial and neutral because both sides get what they want and neither side is declared the winner.”
But weeks after the ink dried, both sides are arguing over who won the case.
In a press release Thursday morning, Board President Dr. Ken Williams Jr. and Vice President Mari Barke praised the settlement, encouraging other school boards throughout the state to take notice and use the case as precedent.
“This settlement…helps make clear that each elected entity has a shared role in governance and shared powers that must be honored and respected,” Williams said. “This settlement will serve the public by helping to ensure that our Board…will make decisions impacting communities based on advice and counsel they trust.”
Mijares fired back in a statement sent to Voice of OC Thursday afternoon, criticizing the board’s characterization of the suit and saying it was “disrespectful,” to the judge.
“This represents a blatant and desperate attempt to distract the public from the reality they spent millions of dollars in litigation only to end up right back where they started,” Mijares said. “Have you ever heard an attorney cite a ‘landmark settlement,’ to win a case?”
While the books are closed on the board’s legal representation, the superintendent and the board are still arguing in court over who has the final say on the annual budget for the county education department.
Traditionally, the department creates a budget and sends it to the board for a review before it’s submitted to the state. But in 2019, the Board attempted to cut out $170,000 without denying the rest of the budget, an action Mijares said was not within the board’s power.
A state panel reviewed the changes and sided with Mijares, at which point the board sued both the state and Mijares. That litigation is still ongoing.