At the December board meeting, Bud Beemer was disqualified by a vote of 5-2 from serving as the retired teacher representative on the CVCHS Board. Mr. Beemer was running unopposed. On the day of the meeting, the Board disseminated a legal analysis finding that Mr. Beemer had a conflict of interest that disqualified his candidacy. Although one Board member moved to table the discussion to allow Mr. Beemer time to respond to the analysis, the Board refused. In the ensuing month, Mr. Beemer prepared his legal response, and asked the Board to place the issue on January’s agenda for reconsideration. The agenda was released yesterday, and the Board refused Mr. Beemer’s request. Mr. Beemer asked that his legal response be published here so that the inaccuracies in the legal analysis disseminated at the meeting in December (and is still posted on the CVCHS website) can be publicly rebutted:
Dear Governing Board,
I am writing to you to demand that you reverse your decision disqualifying me from serving on the CVCHS Board, and that you put the issue on the agenda for the January 14 meeting. Suffice it to say, I was very disappointed, and, frankly, angry about the manner in which you voted to disqualify me from serving on the Board. Your attorney’s letter was provided just hours before the meeting, affording me no time to rebut any legal and factual inaccuracies. In addition, the reasonable motion to table the issue to afford me that time was voted down. Below is my rebuttal, and I sincerely hope that you will reconsider this issue on Wednesday, otherwise I will be contemplating formal legal action.
Your attorney provided two reasons that I should be disqualified from serving on the Board: (1) the existence of a conflict of interest; and (2) the prohibition against holding two incompatible offices. I will address each one in turn.
Conflict of Interest
Your attorney claimed that my position as Commissioner of the BVAL creates a conflict of interest because I stand “to benefit personally from CVCHS’ participation in the BVAL.” He notes that “CVCHS will be joining the BVAL in 2016/2017” and “CVCHS will be in a position where its Board will need to make difficult decisions regarding their participation in the BVAL that could have a financial effect on the payment of the Commissioner’s salary during the 2015/2016 year and beyond.” Those statements are completely without factual support.
First, there is only a possibility that CVCHS will be joining the BVAL—until that decision is made there is certainly no conflict of interest that would prevent me from serving on the Board. Clearly, prior Board members have resigned from the Board when changes in circumstances created a conflict of interest (Kevin King, Alison Bacigalupo). If CVCHS eventually joins the BVAL and a potential conflict of interest is discovered, that issue can be addressed at the time. It is certainly no reason for disqualifying me from serving on the Board NOW.
Second, CVCHS has no “difficult decisions” to make about whether or not to join the BVAL. The NCS makes the decision—CVCHS has no power to change that ultimate decision.
Finally, the salary paid to me as BVAL commissioner is not dependent on which, or how many, teams are contributing members. My salary is static and CVCHS’s possible joining of the BVAL will have no impact on my salary.
Your attorney also cited my live-in relationship with MDUSD Board member Cheryl Hansen as creating a conflict of interest. This rationale is so offensive and specious that I almost do not want to dignify it with a response. But I feel I must defend my reputation. Your attorney claims that my relationship calls into question my ability to maintain my duty of confidentiality and loyalty to CVCHS during negotiations regarding the contracts for leasing facilities. “There is a possibility that Beemer’s relationship . . . could result in Beemer advancing the interests of MDUSD at the expense of the Charter School in order to maintain or advance his relationship.”
What possible reason could there be for me to put the interests of MDUSD over those of CVCHS? I have no personal interest in the outcome of the lease negotiations (nor does Ms. Hansen have any personal interest in the outcome; her board stipend, regulated by State Ed. Code remains the same regardless of how much CV pays for the leases). If MDUSD is able to negotiate a higher lease price, how on earth does that benefit me?
Since I would derive no financial or other personal benefit from such a “conflict,” then the only rationale for disqualifying my candidacy is simply that I lack integrity, i.e., that I am not sufficiently independent from my partner to maintain divergent interests, or that our partnership is so weak as to be threatened by competing duties of loyalty. What evidence do you have to prove such a smear on my reputation? I have never demonstrated any behavior that would suggest that I would violate a fiduciary duty for the protection of my relationship.
And if personal and living arrangements are a basis for finding conflicts of interest, then what about the other Board candidates that were supposedly reviewed by your attorney?
Megan Kommer’s husband is the Varsity Girls’ Basketball coach at CV. Apparently, he forgoes his stipend because his wife is on the CV Board. But if conflicts of interest can be personal, nonfinancial, then how does Ms. Kommer not have a similar conflict of interest? What if her husband’s interests in remaining a basketball coach diverge from CVCHS’s interests—inasmuch as a better coach may be found, who would increase the school’s athletic successes? If I am likely to help MDUSD get a better leasing deal, is it not equally likely that Ms. Kommer would help her husband keep his coaching position “at the expense of the Charter School in order to maintain or advance [her] relationship?”
I also have been told that Ms. Kommer has a 20 plus-year close friendship with the school’s attorney, Mr. Minney. Could there not be a possibility that Ms. Kommer would continue to hire and pay Minney’s firm even if it were discovered that there were better attorney options in order to maintain her longstanding friendship?
Similarly, candidate Ted Meriam lives with Joe Medrano, a convicted embezzler. Should there not be questions answered about how Mr. Meriam’s and Mr. Medrano’s relationship raises the possibility that Mr. Meriam would breach his fiduciary financial duties at the expense of the Charter School in order to maintain or advance his roommate relationship ?
I do not believe that these situations necessarily create a conflict of interest; I raise them simply to demonstrate the complete absurdity of your attorney’s analysis. In sum, neither my position as commissioner of the BVAL nor my relationship with Cheryl Hansen demonstrate an actual or potential conflict of interest.
Your attorney contends that I am prevented from serving on the CVCHS Board because my employment as BVAL commissioner is an incompatible office. Not so.
First, for the prohibition to be applicable, both positions must be found to be a “public office.” (87 Ops.Cal.Atty.Gen. 142, 145.) A public office is one in which the incumbent exercises sovereign powers, meaning the “position must involve not only governmental functions, but also significant and independent policy-making discretion.” (Ibid.) “Accordingly, while a person may be an “officer” for some purposes, such characterization is insufficient in itself to meet the test of a ‘public office’ for purposes of the incompatible offices prohibition.” (Ibid.)
The position of BVAL commissioner is an “employment” not a “public office.” (87 Ops. Cal. Atty. Gen. at p. 145.) The principals of the high schools in the BVAL are the voting members of the Board of Managers. (BVAL Const. Art. IV, §§ 1-3.) The commissioner performs the administrative functions necessary for the running of the league. The commissioner does not have any policy-making authority nor voting power; those are delegated to the principals—the voting Board members. Even in matters such as protests the commissioner does nothing more than arrange for the Board members to meet and confer. Therefore, the prohibition against holding incompatible offices is inapplicable.
Second, even assuming the offices are incompatible, they only become incompatible if and when CVCHS joins the BVAL. At the earliest, that will occur in the 2016/2017 school year. Moreover, neither the BVAL commissioner, the BVAL Board of Managers, nor the CVCHS Board has any discretion regarding whether CVCHS will become a member of the BVAL. The decision is made by the North Coast Section. Thus, I would, at worst, hold incompatible offices starting in June 2016—18 months into by CVCHS term. As discussed above, that issue can be addressed if and when it occurs. It is certainly no basis for disqualifying me NOW.
Thank you for your time. I hope to see you Wednesday and to be welcomed as the newest member of the CVCHS Board.