Taxpayers pay big to keep public records private

| FEATURES

By Royal Calkins

If you pay taxes in California, it’s almost certain that some of your money goes to Lozano Smith, the behemoth of California law firms representing school districts.

The Fresno-based firm represents more than 500 public school districts in the state, including all but a couple in Monterey County. It recently lost one of its most prestigious local clients, the Carmel school system, partly because of its handling of a public records request.

The firm routinely advises its clients to take a narrow view of public record law, which has sometimes resulted in expensive litigation. That’s why a significant amount of school taxes paid in Monterey, Seaside and Marina in recent years has gone to Lozano Smith in a largely futile effort to keep thousands of Monterey Peninsula Unified School District records shielded from public view.

Last year, after a long and sometimes grueling legal battle, a judge ordered the firm to turn over a pile of records to a Monterey High School neighborhood group challenging the school’s plan to expand its football facilities.

And just last month, the firm was on the losing side of another major public records contest, this one in Salinas. An appellate court ordered the release of hundreds of pages of documents that a parent was attempting to pry from the files of a Salinas charter school and Hartnell College.

No price tag has been placed on that litigation yet, but a Salinas school official said simply that it has cost “lots.”

We’ll get back to Salinas in a bit.

Lozano Smith handles most but not all legal matters for the Monterey Peninsula Unified School District. In the past six years, the district had paid the firm more than $3.4 million in legal fees, according to district records. Likely because of the public record litigation, the amount paid out by the district peaked at more than $1 million last year.

An unknown portion of that money went for Lozano Smith lawyers to painstakingly pore through thousands of records pertaining to the football project. At times, Lozano Smith was being paid at attorney rates to essentially function as construction project consultants. Instead of reviewing the environmental impact reports for legal purposes, the Lozano Smith team became directly involved in crafting the documents, according to court records.

The football project includes expansion of the existing stadium and installation of permanent night-game lighting, which is opposed by many of its neighbors. It is budgeted to cost about $16 million, but the district has spent more than $3 million before any actual construction work has started.

The Monterey district’s superintendent, PK Diffenbaugh, did not return an email and phone message seeking comment this week.

Lawyer Lou Lozano founded the firm in Fresno in the 1980s, though he now practices out of its Monterey office. The firm has eight offices spread throughout the state and represents almost half of California’s 1,100 school districts.

Before hanging up on a reporter during a phone interview Wednesday — saying “I don’t want to talk to you anymore” — Lozano answered some questions. But to an inquiry about the Salinas litigation, his response was simply, “Are you a lawyer?”

llozano-copy-e1678482191804 — Lou Lozano founded Lozano Smith in Fresno in the 1980s, though he now practices out of its Monterey office.

The appellate court that ruled in favor of parent and activist Andrew Sandoval, now a member of the Salinas City Council, explained that withholding the records would violate Sandoval’s constitutional rights.

Lozano disagreed.

“I didn’t know the Constitution says anything about public records,” he said.

Two insiders in the Carmel school system say Lozano Smith lawyers were so busy handling mask and quarantine issues elsewhere that they weren’t giving Carmel enough attention — part of the reason the district has gone elsewhere for counsel. Lozano ended the interview with Voices before he was able to comment on that.

One of Lozano Smith’s selling points when pitching itself to school districts is that it is so on top of education issues in California that it doesn’t need to reinvent the wheel when a certain district needs advice on a particular topic. On the flip side, school board members on the Central Coast and in the Central Valley have said they wonder if large firms such as Lozano Smith might be performing work for one district and later billing other districts the full fee for the same work. Lou Lozano has denied that.

The lawyer for the Monterey High neighborhood group, Molly Erickson, successfully specializes in public records cases, environmental issues and other areas of local governance. Throughout the litigation, district officials have accused her of being unnecessarily demanding and unyielding in her search for documents. In conversations with her clients, she has accused the district and the Lozano Smith team of obstinance. She declined to comment for this article.

For her work on the football public records case, the court ordered the Monterey district to pay Erickson $82,500 in legal fees.

In connection with the Monterey High football project, Erickson recently filed suit against the district, accusing it of essentially pasting a state construction official’s signature on a document he had not signed. The district denies that assertion.

Back to Salinas.

Just last month, another court ordered Lozano Smith to turn over hundreds of pages of email records to Sandoval, the Salinas activist who was investigating a charter school that was then operating under the auspices of the Alisal Union School District.

That case began with Sandoval investigating the Oasis Charter Public School, which his three children were attending. Early on, his research resulted in termination of the school’s executive director for spending $132,000 in school money on maintenance work performed by her husband.

Sandoval filed California Public Record requests with Oasis, Alisal and Hartnell College. Hartnell got dragged into the fight because its head of student affairs, Augustine Nevarez, was a member of the Oasis board of trustees and had used Hartnell’s computer system to send and receive hundreds of emails involving Oasis business.

In league with Lozano Smith, Hartnell took the lead in fighting Sandoval’s requests for those and other records. College officials argued that some records were not disclosable because they involved private personnel matters.

Early in the legal case, Monterey County Weekly reported in 2021 that the college provided Sandoval with a thumb drive containing portions of 12,000 emails involving Oasis-related matters. But after Sandoval discovered that some of the emails contained personal information about students and references to assaults on campus and other matters, a Lozano Smith lawyer representing Hartnell requested that he return them.

That didn’t end the public records dispute.

Sandoval took Hartnell to court and Monterey Superior Court Judge Robert O’Farrell ruled in his favor. He said most of the records Sandoval sought were public records that should be disclosed no matter whose computer created them. (Most records created by government agencies in California are technically public records, but the law generally allows them to withhold those that contain personnel records, criminal records, trade secrets and other matters deemed confidential under state statutes.)

The Weekly reported that Hartnell officials reviewed 1,538 of Nevarez’s emails and found 842 related to Oasis board business, 148 involving Oasis board members, 104 involving parent complaints and others involving the charter school — which remains open, though it is no longer affiliated with the Alisal district.

On the advice of Lozano Smith, Hartnell declined to turn over many of the records and any reflecting disciplinary matters at Oasis. Lozano Smith lawyers argued that Hartnell wasn’t subject to Sandoval’s request because the college had no formal connection to Oasis and that until a law change in 2020, Oasis wasn’t subject to California’s Public Records Act.

O’Farrell ruled in Sandoval’s favor on most counts. Lozano Smith appealed, but on Feb. 6, the 6th District Court of Appeal firmly backed O’Farrell’s ruling. It essentially scolded Sandoval’s opponents for taking an inappropriately narrow view of public records law.

For instance, the court found that it didn’t matter that charter schools weren’t specifically covered by the Public Records Act when some of the emails and other records were created. Legislation signed in 2020 expressly put charter schools under California’s public records law, but O’Farrell ruled that didn’t mean records created earlier were exempt from release.

Significantly, O’Farrell and the appellate court agreed that some personnel records from public agencies should be released if a public employee was disciplined, formally or informally.

If applied across the board to other public records requests, that ruling could eliminate a layer of confidentiality that has frustrated inquisitive journalists and the public for decades. The appellate decision is considered “unpublished,” however, so it can’t be used as precedent for unsealing disciplinary records unless or until a higher court formally agrees.

Here’s where the Constitution was raised. The appellate panel wrote: “… We are prohibited, by our Constitution, from interpreting the CPRA (California Public Records Act) narrowly where doing so would limit public access; we are required to construe such provisions broadly.”

The California Governor’s Office and Legislature have repeatedly called on public agencies to interpret the Public Records Act broadly and to err on the side of disclosure. Even so, many agencies cling to a policy of withholding some records simply because they can, not because they should.

The three-judge appellate panel included Adrienne Grover, formerly a Monterey County judge and county counsel (the chief legal adviser to Monterey County government).

Sandoval prevailed at the appellate level even though he was represented by a sole practitioner in Southern California — while three Lozano Smith lawyers represented Hartnell in concert with three other lawyers.