Did Temecula school board break the law in hiring a special attorney?

The Temecula school board is accused of breaking state law when a majority of board members —  outside of a public meeting — spoke individually with a lawyer they eventually hired as special counsel.

The lawyer, Jonathan M. Brenner, said his one-on-one conversations with three Temecula Valley Unified School District trustees did not violate California’s Ralph M. Brown Act, which limits what elected officials can do out of the public eye.

While there’s no hard evidence a Brown Act violation occurred, the one-on-one private meetings by trustees Joseph Komrosky, Danny Gonzalez and Jen Wiersma “definitely give rise to serious concerns that there might well have been one” and “warrant further investigation,” said David Loy, legal director for the First Amendment Coalition, which advocates for government transparency.

Komrosky, Gonzalez and Wiersma did not respond to requests for comment Tuesday, Feb. 7.

Backed by a local Christian conservative political action committee, Komrosky, Gonzalez and Wiersma were elected in November to a majority on the five-member board, overcoming critics who fear they’ll impose a Christian nationalist agenda to the detriment of LGBTQ students and students of color.

One of their first acts was to ban teaching of critical race theory, a term for a graduate-level curriculum that’s used by conservatives to attack a range of K-12 lessons on race and U.S. history. That prompted Temecula high school students to walk out in protest in December and January.

Safety concerns about the walkouts, and a stated lack of faith in the district’s legal team, spurred the majority to pursue hiring Brenner’s firm, Epstein Becker & Green to advise the board.

After a Jan. 18 special meeting abruptly ended because the board couldn’t agree on an agenda, Komrosky, Gonzalez and Wiersma voted during the board’s regularly scheduled Jan. 31 meeting to hire Brenner’s firm. Board members Allison Barclay and Steven Schwartz voted no.

Critics said hiring a special counsel is wasteful and unnecessary. Brenner will be paid at a rate of $620 an hour. It costs the district $345 an hour for the services of senior lawyers from the current legal team.

On Jan. 31, Barclay asked Komrosky, Gonzalez and Wiersma whether they met with Brenner individually before the meeting. All said they did.

“According to (the government code), that’s a Brown Act violation,” said Barclay, who cited a provision of the law forbidding a majority of elected officials from discussing and acting on public business outside of an advertised public meeting.

“So in my opinion, this is a moot point because when we pass this, how many people have their attorneys on speed dial and will sue us over this decision” to hire special counsel, Barclay said.

“ …  If we proceed with this, we as a board are violating the Brown Act and I think we need to stop talking about this right now.”

Komrosky asked Brenner to respond.

“My own personal view is that no violation of the Brown Act has occurred,” Brenner told board members.

While it’s important to follow the Brown Act, “it’s not an absolute stop to things necessarily and there are ways to cure (Brown Act) violations,” Brenner said. “I don’t believe one’s happened here.”

Brenner added: “Whether it’s cloaked in just … (the) language of pause, stop, or the technocratic language of the Brown Act … these all reflect the sentiment to stop the board from getting additional legal advice (and) stop it from getting advice from an outsider … ”

“If the board doesn’t have confidence right now, in its legal advisers, given the landscape on which you’re operating … you do need, in my opinion, to engage someone from the outside who’s independent” to get legal advice.

Loy brought up a hypothetical scenario in which a board member, on their own, decides the board should hire special counsel.

In that scenario, if the board member meets one on one with a special counsel candidate, puts an item to hire special counsel on a future public meeting agenda and the board discusses or acts on that item, “that’s not a Brown Act violation because the conversation outside the meeting was only with one board member or less than a majority of the board.”

“But in this scenario … if I say, ‘OK, we should hire a special counsel’ and I interviewed a candidate and I say ‘Why don’t you go talk to my other two colleagues here’ or ‘My other two colleagues are gonna call you and they’re gonna discuss it’ … that begins to look a lot more like a (violation).”

Loy added: “(It) just seems very highly unlikely that just independently, all three of those majority board members would sort of magically decide ‘We’re all gonna talk to the same person about being our special counsel but we didn’t talk to each other about it.’”

One Temecula Valley Political Action Committee, a frequent critic of the board majority, wants the Riverside County’s District Attorney’s Office and the Riverside County Sheriff’s Department to investigate the board’s special counsel vote.

“We expect our elected representatives to adhere to all laws, including those that protect the public’s right to transparent local government,” Jeff Pack, a PAC organizer, said via email.

“It is our opinion that they knowingly tried to work around the Brown Act in order to hire outside counsel.”