November 6, 2017News
Dear Dr. Rodriguez:
This law firm is General Counsel to United Teachers Los Angeles (“UTLA”), which represents over 30,000 classroom teachers and student support personnel who serve students and their families every day in Los Angeles Unified School District (LAUSD) schools and in numerous charter schools authorized by the LAUSD Board of Education (“BOE” or “Board”). We write to urge you, and to amplify the voices of your colleagues on the Board who have made similar requests of you, to exercise your solemn obligation to recuse yourself from upcoming School Board business due to a conflict of interest.
As you are no doubt aware because of the recent conflict-of-interest complaint filed against you by the Partnerships to Uplift Communities (“PUC”) network of charter schools based on transactions you engaged in while employed by them that benefited your nonprofit, Partners for Developing Futures, public officials are prohibited from participating in government decisions in which they possess a financial interest. See Cal. Govt. Code § 87100. This prohibition is not intended solely to remedy proven instances of officials making decisions for corrupt reasons, but more broadly to protect the public’s trust and confidence in their officials and agents by avoiding the appearance of impropriety that arises when there is any possibility that an official’s own personal interests could be impacted by his official actions.
The California Supreme Court has described the broad scope of our state’s conflict-of-interest statutes as embracing potential as well as actual conflicts:
The statute is thus directed not only at dishonor, but also at
conduct that tempts dishonor. This broad prescription embodies a
recognition of the fact that an impairment of impartial judgment
can occur in even the most well-meaning men when their personal
economic interests are affected by the business they transact on
behalf of the Government. To this extent, therefore, the statute is
more concerned with what might have happened in a given
situation than with what actually happened. It attempts to prevent
honest government agents from succumbing to temptation by
making it illegal for them to enter relationships which are fraught
with temptation. Implicit in this reasoning is the assumption that
the purpose of such statutes is not only to strike at actual
impropriety, but also to strike at the appearance of impropriety.
Thomson v. Call (1985) 38 Cal.3d 633, 648. In light of the pending criminal charges against you, which include perjury and conspiracy arising from what investigators have described as a “money laundering scheme,” the more recent allegations that you have already violated the conflict-of-interest laws due to your personal interest in transactions you conducted as an employee of PUC schools, and the personal interest it appears you have in the subject matter of tomorrow’s votes as described below, we believe that your participation in the decisions the Board will make tomorrow would raise serious questions about such a concession to temptation as condemned in Thomson. Accordingly, your duty as a public official requires you to recuse yourself.
Government Code Section 87100 provides that “[n]o public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.” An official has a financial interest in a decision if it is reasonably foreseeable that the decision will have a material financial effect on any source of income aggregating $500 or more, or on any donor of a gift aggregating $250 or more in value, where the income or gift was provided to the public official within 12 months prior to the decision. Govt. Code § 87103.
In keeping with the broad scope of the conflict-of-interest rule, the courts have held that if a public official has received income or gifts within the meaning of the statute, the official violates Section 87100 where his decision benefits the person who provided the income or gift, even if the decision will not necessarily result in a direct benefit to the official himself. Witt v. Morrow, 70 Cal. App. 3d 817 (1977). Moreover, it is not necessary to prove that the donor will definitely benefit from the governmental decision; rather, it need only be “reasonably foreseeable” that the measure would benefit the party who provided the income or gift to the public official.
The Board is currently scheduled to vote on a number of petitions for new charter schools and a number of charter renewal petitions at its upcoming Special Meeting Order of business scheduled at 9 a.m. tomorrow, November 7, 2017. The District’s staff has issued detailed findings regarding some of the petitioning schools’ failures to comply with various aspects of the state’s Charter Schools Act. We have reason to believe that these upcoming votes may constitute government decisions in which you possess a financial interest within the meaning of Government Code Sections 87100 and 87103.
Several of the charter schools whose petitions the Board will be voting on are in the KIPP Public Charter Schools network, which operates with support from the KIPP Foundation. Additionally, many of the other charter schools whose petitions the Board will be voting on are in other networks of charter schools that are members of the Member Council of the organization known as the California Charter Schools Association (“CCSA”). It is well known that CCSA is advocating forcefully in favor of many of the charter petitioners in connection with the November 7 meeting, including their efforts to weaken the role of the Office of Inspector General (“OIG”) in the oversight of LAUSD authorized Charter Schools.
Furthermore, you are no doubt acquainted with Reed Hastings, who currently sits on the Board of Directors of the KIPP Foundation. Mr. Hastings also formerly sat on the Board of Directors of the CCSA, is known to have contributed millions of dollars to the CCSA’s political activities over the past two years alone, and may currently still have a direct interest in the Association and the individual networks of charter schools that sit on its Member Council. On or around October 9, 2017, Mr. Hastings contributed $75,000 to your personal Legal Defense Fund. You will benefit from this $75,000 payment by Mr. Hastings. This contribution arguably constituted “income” within the meaning of Government Code Section 82030, and a “gift” within the meaning of Government Code Section 82028. Therefore, it is possible that any School Board decision that would foreseeably have a material financial effect on Mr. Hastings may be a decision in which you have a financial interest under Government Code Sections 87100 and 87103. Accordingly, if you participate in the votes on the charter petitions submitted by any KIPP schools or by any of the schools in the networks that participate in the Member Council of the CCSA, your vote could constitute a violation of Govt. Code Section 87100.
We are also concerned about any role you may play in deliberations over the scope of the OIG’s authority to investigate claims of wrongdoing, or to exercise that Office’s oversight over all LAUSD schools, including charters. Mindful of the current investigations of PUC Schools and the claims of wrongdoing against you personally, your participation in the Board’s consideration of that matter also may give rise to an appearance of corruption.
Considering all of the above pending inquiries into your involvement in various questionable transactions and your entanglement with entities and individuals keenly interested in the matters to be deliberated upon by the Board tomorrow, to prevent the appearance of impropriety that California’s conflict of interest laws are designed to avoid, and to maintain and uphold the public’s confidence in the integrity of the Board, the appropriate path would be for you to recuse yourself from any of the decisions in which you have a financial interest as described above.
We are copying your fellow Board members on this letter, as well as the District’s General Counsel, to alert them of the potential legal implications of your participation in tomorrow’s votes. We are also alerting the state Fair Political Practices Commission, which is charged with enforcing the Political Reform Act, as well as the Ethics Chair for the City of Los Angeles, so that they are made aware of the implications of your actions and can, in the exercise of their judgment, take any appropriate investigative or enforcement action.
A Law Corporation
cc: Jodi Remke, Chair, California FPPC
Chair, LA City Ethics Commission
Dr. George McKenna
Dr. Richard Vladovic