Tim Shaw will hang onto his Orange County Board of Education seat through at least the end of the month following an hour-long court hearing from a lawsuit alleging he was illegally appointed to the seat. 

The lawsuit against the OC Board of Education comes months after Shaw resigned from his post to avoid litigation for simultaneously holding a spot on the La Habra City Council.

Board of education members then decided to reappoint Shaw to his old seat, which some of Shaw’s constituents think is illegal. 

[Read: OC Judge to Determine if Board of Education Illegally Appointed Tim Shaw]

The primary issue in the case revolves around a law called Section 1752 of the state government code, which states: 

“No person elected or appointed to the governing body of any city, county or district having an elected governing body, shall be appointed to fill any vacancy on that governing body during the term for which he or she was elected or appointed.”  

But board of education officials argue they’re not an official governing body.

“I don’t think this is a slam dunk issue, that the board is not a district,” said Superior Court Judge Martha Gooding at Wednesday’s court hearing.

[Read: County Board of Education Sued For Reappointing One Of Its Members After Resignation]

Lee Fink, lawyer for Michael Sean Wright who brought the lawsuit against the board, argued that Shaw should be removed from his seat until the June election, saying that the appointment meant he was illegally voting on issues. 

“We’re asking the court to enjoin the board from allowing Mr. Shaw to participate as a member of the Orange County Board of Education, that includes voting, serving, having access to privileged information, serving as an incumbent,” Fink said

Jonathan Brenner, the lawyer for the OC Board of Education, argued that the board was not a special district because it was not a governing body, and all the education programs were handled by the county Department of Education. 

“Merely being a district is not sufficient. You have to be the elected governing body of a district,” Brenner told the judge.

He said a county board of education can be considered a school district under education code, but only for the purpose of “establishing or maintaining a community school.”

While Orange County has a community school called the ACCESS Program, Brenner argued it was maintained and run by county Superintendent Al Mijares.

He said it’s only role with the program is to approve the department’s annual budget and own the “real estate” the program operates out of.

Fink pushed back against that.

“If the Orange County Board of Education isn’t a governing board, I don’t know that they can even make that provisional appointment, I don’t think they can call that election. Of course it’s a governing board,” Fink said.

He also argued that since they approve budgets and own property, they have governing authority.

While Gooding didn’t rule on the issue on Wednesday, she said the board of education’s arguments are by no means a “slam dunk issue.”

“It seems to me that if the Board of Education is in a district or is deemed to be a district in its own right, then the governing body of that district is none other than the Orange County Board of Education,” Gooding said. “It’s not clear to me that the Board of Education is not governed by or otherwise exempt from the rule of section 1752.”

The next hearing is scheduled for March 7 at 1:30 p.m.

Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada. 

Hosam Elattar is a Voice of OC Reporting Fellow. Contact him at helattar@voiceofoc.org or on Twitter @ElattarHosam.

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