Should a CBOC Take Legal Advice From the School District’s Lawyer?

FAQ 20

Should a CBOC Take Legal Advice From the

School District’s Lawyer?

First, we recommend that every CBOC have its own legal counsel that is responsible to the CBOC and that the district’s legal counsel, internal or external, cannot be the CBOC’s legal counsel because that would be a conflict of interest.  Also, for the same reason, the CBOC’s legal counsel cannot do any work for the district.

There will be occasions when it is totally appropriate for the district’s legal counsel to provide information about legal matters to the CBOC.  For example, if the CBOC has legal questions about the district’s human resources or procurement processes, it will likely be far more efficient for the district’s legal counsel that works in these areas to provide the explanation to the CBOC.  In such cases, it may be appropriate for the CBOC’s legal counsel to review the district’s legal counsel statements.

Occasionally, a CBOC may need technical advice.  The district is required to provide technical advice to the CBOC when requested ”without expending bond funds.”   See Education Code Section 15280 (a).  Legal advice is one type of technical advice.  Typically, the district employs a lawyer to give the district advice about issues related to the bond programs. 

The district’s lawyer has an “attorney/client” relationship with the district in which the lawyer has a duty to give advice that is in the best interest of the district.  The district’s lawyer has no duty to the CBOC, even if the legal advice is good advice.  The district’s legal counsel also has a legal privilege responsibility to the district.  This means that it is prohibited from sharing certain information, such as those for a claim or legal action, individual personnel action, and information regarding procurements that have not been completed, with any outside parties including the CBOC.  Similarly, the CBOC’s legal counsel has the same responsibilities to the CBOC.  It is possible that the CBOC’s legal counsel may be able to give general information about a situation that is in process that the district’s legal counsel is prohibited from discussing with the CBOC.

The potential problem with the CBOC receiving legal advice from the district is that the advice is “in the best interest of the district.”  The CBOC should have advice that is in the best interest of the CBOC as the representative of the taxpayers, residents, and other stakeholders. 

For example, the bylaws of a CBOC may include a provision “only the district may amend these bylaws.”  An independent CBOC’s lawyer might explain that the board’s bylaws encroach on the independence of the CBOC. 

An independent CBOC must draft its own bylaws.

Best practice is for the CBOC to have an independent legal counsel, paid by the District, and for CBOC legal counsel to be experienced in the types of matters that are likely to come before the CBOC.  Fortunately, there are law firms that have attorneys that specialize in governmental and even K-12 and Community College organizations that can be well-qualified and experienced in the legal issues of such entities.