Legal Counsel Gave Bad Advice on Darcie Green Appointment

For nearly 40 years I have dedicated my professional life to the quality of public education. It has been an up and down journey for sure. Yet, each vote I take on the SCCOE Board and each initiative I pursue is consistent with what President Obama echoed Monday afternoon from the platform at the U.S. Capital: “We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own.” It is this pursuit of equality and equity that I continue to support efforts to improve the quality of public education for all children, particularly those who are most vulnerable.

President Obama’s vision will be my guiding principle on the Rocketship Tamien vote on the site zoning exemption resolution on our agenda Wednesday night. Irrespective of how the vote turns out—a 2/3 majority vote is needed to approve the resolution—I will work with the community and its leaders to bring a high quality public middle school to the Washington School/Sacred Heart neighborhood. And there is no doubt that the Tamien site of the proposed Rocketship 8 Elementary School needs and deserves a first-class soccer field. With hard work and a collective commitment we should be able to get that done, along with long-term maintenance through the support of private gifts.

On Another Note…

Earlier, I mentioned that my professional life has been filled with many ups and many downs. One big down moment came in a Jan. 9 email from District Attorney Jeff Rosen to Superintendent De La Torre, with a “cc” to the SCCOE Board of Education. In this email, Rosen said he had received a complaint that Darcie Green’s recent Board appointment was unlawful. The complaint, Rosen said, noted that Green was not a resident of the trustee area represented by the Board member—Craig Mann—whom she replaced.

I was Board president at the time of the decision to appoint a candidate to our Board in a 60-day window from Trustee Mann’s resignation, instead of holding a special election that could have cost up to $1 million. The Board and Superintendent’s legal counsel at the time was Lozano Smith. According to a memo Dr. De La Torre received from Suzanne Carig, staff support to the County Committee on School Organization, Ms. Carrig wrote:

“I just spoke with Tom Maniello from Lozano Smith regarding the board appointment question you asked.

“If a member who is up for re-election in 2014 resigns or becomes ineligible to serve Tom’s opinion is that there is some wiggle room in the person appointed to fill the vacancy. Tom states that an argument can be made to choose a candidate for the vacancy from the “old” trustee boundary. For instance, seated board members up for election in 2014 do not have to comply with the “new” boundaries until there (sp) seat is up for election. However, Tom sates (sp) that it is prudent to appoint someone who resides within the newly developed trustee area since it is likely that person will want to run for re-election when the appointment term is up in 2014.

“In a nutshell, Tom says the appointment and where the person resides is discretionary—up to the board…

Thank you,

It was on this opinion that an Aug. 28, 2012, SCCOE News Release read: “Applicants interested in the vacant seat on the SCCOE Board of Education can determine their residency eligibility by checking with the county Registrar of Voters…

“To apply for the position, applicants must be registered voters residing within Area 6, which includes the Alum Rock School District, Mt. Pleasant School District, Franklin-McKinley School District, and the corresponding portion of East Side Union High School District as well as a small portion of San Jose Unified.”

The County Committee on School Organization approved this new Trustee Area 6 in the decennial redistricting in February 2012.

I strongly believe the County Board and Superintendent proceeded to appoint in a timely manner from the area vetted in theory by legal counsel and the Registrar of Voters. All communications were open and transparent. If there was a legal question from August to the provisional appointment by the Board on Oct. 17, 2012 why did the DA or Registrar of Voters not raise the question to me as Board president or Dr. De La Torre? Certainly, if we were notified we were operating in illegal precepts then we would immediately and urgently moved to solicit candidates from the old, now-defunct Area 6.

This Jan. 9, 2013, memo from DA Rosen feels like an arrow in the back. It’s an egregious and costly error that could cost the taxpayers up to $1 million for a special election. From my perspective, we did what we were counseled to do in a process that received much praise from the community for its thoroughness, openness and integrity.

It is extremely unfortunate at this time that Trustee Green is left twisting in the wind. Every step of the way we were transparent and open. All five candidates we interviewed were exceptional in their knowledge and passion to serve. The SCCOE Board carefully weighed the pubic interviews and debriefed in public the strengths of each candidate. Trustee Green was selected in a first ballot by four of the six voting members. She was sworn-in to serve in November 2012.

Joseph Di Salvo is a member of the Santa Clara County Office of Education’s Board of Trustees. He is a San Jose native. His columns reflect his personal opinion.


  1. First the Axis condo debacle.  Now this.  Seriously.  And Jeff Rosen pointing out the law is an ‘arrow in the back’.  It’s flabbergasting how our paid public officials (well paid last I looked) point fingers when they err or make poor decisions.  It is sad that they have such difficulty following the very rules and regulations that they’ve constructed.  Belief and theory aren’t exemptions from doing your job correctly and being culpable.  And really, the ‘wiggle room’ comment is a keeper.

    • Haven’t you folks learned anything? This is what happens when we rush appointments to get our buddies seated. Perhaps this is Karma for Darcie ‘Palin’ pushing the vote in the same manner in Alum Rock. It’s great to see someone filing a complaint to verify candidate residency. It should be done more often.

  2. Careful.
    What you are showing as backup to the board’s decision to go with the new trustee area 6 boundaries is an email from a staff member of a committee – the email may or may not accurately record a conversation the staff member had with an attorney.

    The email is not from an attorney.  Would this email hold up in a court of law as accurately representing the legal opinion of the attorney and the law firm?  I doubt it.  The content of this email has been filtered through the staff member. Did she accurately understand the attorney?

    Did the county board rely only on this email? Wouldn’t they have asked for something in writing from the law firm?  Given the amount that the county pays this law firm, one would think that the county board of education would have asked for something in writing from this law firm.

    • The county boards are appearing less and less professional the more you look at them.  This DiSalvo practically pulled a Rodney King (can’t we all just get along) in an earlier article, writing of the fact that the county now owns a condominium because they do not understand contract law.  Amazing to me.

  3. I’m inclined to believe that the DA didn’t get involved because it was a grey area.  Rosen is reacting to a whistle-blower.  If it were a grey area and he reacted the way he did, he’d look silly.  He is not a stupid man.  You reaction indicates that you are at best not a rational person.

    If you really must, get another opinion.  May I suggest Thomas Willis, the guy the water district and Shirakawa uses.

    If you’re going to pay big bucks for a high-powered attorney, you should be getting good advice.  Any amount is too much for bad advice.  If you stick with that law firm, you are worse than incompetent.

    • Here’s what the SJ Merc had to say:
      “The district attorney contends that the law requires “that any vacancy occurring in the middle of a term of office be filled using the geographical boundaries that existed at the outset of the term.” The letter, dated Jan. 9, cited advice from the Secretary of State and the governor’s office in filling recent vacancies in elected offices in Madera and Butte counties.”

      Looks like the state had already addressed this issue after the Nov 2012 election, which opened up some vacancies in districts where the boundaries had been adjusted based on the 2010 census data, which is the case in Santa Clara County.

  4. According to the news link above, the lawyer that gave you the bad advice is advising you to discuss this in closed session.  Is this advice that serves his purposes or yours?

    Why are you still using this guy?  Get someone that can give you an independent opinion.  Are you that clueless?

  5. The Trustee Area 6 seat became vacant because Craig Mann, who had been elected to that seat, went to work for a Santa Clara County school district – and the rules are that you cannot serve on the County board of ed and simultaneously work for a K-12 school district within the county.

    Did Craig Mann, who wrote some comments on the SJ Merc article about this issue – comments which implied that anyone who complained about Darcie Green not living within the Area 6 boundaries – is a ‘hater’- resign his County Board of Education seat after the deadline set by the Registrar of Voters to put the County Board of Ed Area 6 seat on the ballot?  Thus, opening the window for the County Board to appoint someone rather than hold an election. Or did he resign before the deadline and the County Board of Ed decided to not put the seat on the Nov 2012 ballot.  The fact that the County Board of Ed did not seek to fill the seat until the end of August seems to indicate the former.

    Yet, Craig Mann knew he was resigning from the County Board of Ed before the Registrar of Voters early August filing deadline for candidates, because he made sure to file to run for a college board seat for himself – to which he was elected in Nov. 

    Darcie Green’s appointment opened up a can of worms in Alum Rock with the vacancy and subsequent appointment there.

  6. Has the board come to any conclusion about the validity of their process to fill the vacancy?  Has the D.A. dropped this issue?

    If the appointment was invalid, that board member should return to member-of-the-public status and not be sitting on the dais and voting.

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