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Newly hired law firm is at work asking for redactions for Fairfax school board president

Last week the superintendent of Fairfax School District could not comment on whether the district was actively using the services of Fagen, Friedman & Fulfrost, a law firm hired during a contentious January board meeting.

But an email from the district's general counsel, Schools Legal Service, to The Californian confirmed that Fagen, Friedman & Fulfrost is currently doing work for the district.

This is the latest twist in a saga that's involved a failed censure resolution against the current Fairfax board president, allegations that he abused his power as a board member and a series of board meetings that called into question the ethics, legality and costs of the new contract.

The Californian filed a request under California's Public Records Act on Dec. 17 to be granted access to the investigative report commissioned by the previous board that looked into allegations that Palmer Moland, now board president, abused his power as a board member. Moland has denied those allegations.

Schools Legal Service wrote in an email to The Californian that the report, which is more than 100 pages plus more than 450 pages of exhibits, would be released Feb. 5.

On Feb. 4, Schools Legal Service wrote to The Californian that the it had "received recommendations from the law firm of Fagen, Friedman & Fulfrost LLP (F3) for certain additional redactions/removals related to the document(s) you have requested (i.e., the investigation report regarding allegations against Trustee Palmer Moland)."

Jay Fernow, a Los Angeles-based attorney with Fagen, Friedman & Fulfrost, cited California's Public Records Act, which permits the withholding or redactions of certain records including "(p)ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy."

David Snyder, the executive director of the First Amendment Coalition, said that having two teams of lawyers from two different firms go over public records to redact them is "highly unusual." 

"That presumably is a significant additional expense that I think the public would be reasonable to question the necessity of," he wrote in an email. "It also suggests an effort to be overly aggressive in withholding information from the public. That's the opposite of the approach required by California law, which is that government agencies err always on the side of transparency if there's any doubt."

Cost has been a key issue surrounding the discussion of potentially bringing on Fagen, Friedman & Fulfrost. Currently, Fairfax pays an approximately $46,000 annual retainer for access to Schools Legal Service. Most school districts and educational agencies in Kern County and many in nearby counties rely on this legal service.

At a special board meeting on Feb. 3, teachers, classified staff and parent groups spoke out unanimously against hiring new counsel at additional cost to the small district of about 2,600 students in southeast Bakersfield.

But Moland took issue with the annual retainer. He said at February's meeting that he preferred Fagen, Friedman & Fulfrost's pay-as-you-go model and the board once again approved a contract with the firm.

"Right now we hire a law firm we pay a year whether we use them or not," Moland said. "We won't pay them unless we use them."

Board member Victoria Coronel responded by asking whether the district had used the firm since the first time they had approved a contract. She contended that their initial hiring was "illegal" because board bylaws were not followed at the January meeting.

"Palmer, I have a question: Since they've already been illegally hired because board policy wasn't followed so it's illegal," Coronel said. "Since that time to now, has that law firm been used? Yes or no?"

Moland did not respond, and she directed her issue to Superintendent Michael Coleman.

"Mr. Coleman, has F3 been used from the time they've been illegally hired?" Coronel asked.

"I believe that would be an issue that should not be discussed in open session," Coleman responded. "I believe there are attorney-client issues in that response."

Schools Legal Service general counsel Grant Herndon affirmed that.

Coronel asked to go into closed session before the board voted on whether to approve the contract with Fagen, Friedman & Fulfrost. Moland ignored this request, and the board voted 3-2 to bring on the firm.

This vote came less than 24 hours before the firm made its request to recommend "additional redactions" from the investigation into Moland.