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Monday, Oct. 12, 2009 | When Michele Fort-Merrill advises her boss that the San Diego County Office of Education should look to outsiders for legal help, it is almost guaranteed that the work will go to her husband’s firm, a voiceofsandiego.org analysis has found.

As executive director of human resources, Fort-Merrill advises the county superintendent whether to retain attorneys for personnel issues. She does not choose which firm to employ, but over the past four years, those cases have gone almost exclusively to Best, Best & Krieger, which employs her husband, William Merrill. Fort-Merrill has a financial interest in the firm of more than $100,000 annually through his income, according to her economic disclosure forms.

When voiceofsandiego.org first wrote about the link between Fort-Merrill and the law firm this spring, ethicists and legal experts questioned the practice of allowing Fort-Merrill to give advice that could ultimately benefit her husband financially, even if she doesn’t intend to do so.

But a major question was left unanswered: How likely it is that legal business will go to BB&K and to William Merrill specifically if Fort-Merrill advises hiring an outside attorney for a personnel case. The new numbers, culled from public records by voiceofsandiego.org, help shed light on that key question about the relationship. They show it is almost inevitable that personnel cases will go to BB&K, which accounted for 99 percent of the hours attorneys billed for such work since 2005.

That deepens concerns among ethicists about Fort-Merrill giving advice on whether to get legal help. Though Superintendent Randolph Ward said Fort-Merrill does not directly assign legal work to any firm, her advice helps him decide whether the office turns to outsiders or its own staff to handle difficult issues — a decision that impacts the amount of work going to her husband.

Public officials are generally barred under California law from making or helping to make government decisions in which they or their spouse have a financial interest. Being involved in the decision can include advising the decision maker.

“The issue is quite simple — as a public official you shouldn’t make decisions based on your financial gain,” said Jessica Levinson, director of political reform at the Center for Governmental Studies, a Los Angeles-based nonprofit that helps people participate in their government. “Whether that’s her motivation, I can’t speak to. But she is financially gaining based on decisions she’s making in her professional capacity.”

BB&K began receiving almost all of the County Office legal work related to personnel cases four years ago. Its attorneys have billed $234,000 over that time for personnel cases, which averages to $58,500 annually, the voiceofsandiego.org analysis found. The previous firm had billed an average of $17,100 annually in the prior seven years. BB&K both logged more hours and charged slightly more.

BB&K began to be used almost exclusively for personnel cases in July 2005, the same time that Fort-Merrill became executive director of human resources. She had been responsible for recommending when outside attorneys were needed for personnel issues at the agency since at least January 2002, when she was promoted from human resources specialist to senior director of human resources.

It is unclear how or whether her responsibilities changed when she became executive director, or if she had the same responsibilities as a resource specialist. County Office spokesman Jim Esterbrooks referred questions to attorney Steven Cologne, who didn’t provide the information by deadline. Attorneys for Fort-Merrill declined to comment or clarify because of a related lawsuit.

Before 2005, the County Office usually turned to Parham & Rajcic, a Laguna Hills firm, to handle cases related to employees. The attorney it often used, Mark Bresee, left Parham in February 2005 for the Orange County Department of Education.

A few months later, the San Diego County Office of Education started sending its personnel cases to BB&K. The firm was no stranger: It had already been working with the County Office since 1998 on other issues, earning between $150,000 and $328,000 annually. The firm is known for its work statewide and has represented numerous public agencies, including San Diego Unified and Oceanside Unified school districts and the cities of San Diego, Sacramento and Riverside.

“It’s been decided by history that Best, Best & Krieger would be used for disciplinary matters,” Ward said in an interview earlier this year. He called the firm “a staple counsel” and argued that there was no conflict because he makes the ultimate decision on whether to hire an attorney. In addition, he said, the firm had been contracted by the agency long before both Ward and Fort-Merrill were employed there.

BB&K’s share of the overall legal business at the County Office of Education has grown over time, from 35 percent in 2000 to 87 percent in 2008. That does not mean that its actual bills have grown, because the overall amount of legal work varies from year to year. Cases referred by Fort-Merrill’s department made up at least 25 percent of its business from 2005 to 2008.

The County Office wouldn’t confirm the totals voiceofsandiego.org tabulated from the legal bills, saying that it would take too much staff time.

While personnel cases almost always go to BB&K, Merrill himself made up only 7 percent of the attorneys’ billing, according to the analysis. But it is unclear whether Merrill and his wife benefit solely from business that goes directly to him as an individual attorney or from BB&K business in general.

Merrill is listed on the firm’s website as a partner, a term historically meaning that an employee earns a share of the firm’s profits. He filed an economic disclosure form two years ago that listed a partnership in the firm valued between $100,001 and $1 million.

“Partner” has no strictly defined meaning under California law, said Diane Curtis, a State Bar of California spokeswoman. Some firms give the title to attorneys who do not gain directly from the firms’ profits. Warren Diven, managing partner of BB&K’s San Diego office, wouldn’t clarify whether Merrill profits from the overall success of the firm or solely from his own billing, as do ordinary attorneys. Nor would he define what “partner” means at the law firm because of a related lawsuit.

“I don’t want to interject BB&K into the middle of the litigation, even indirectly,” Diven said in May.

Fort-Merrill’s role has been questioned by a former County Office employee, Rodger Hartnett, who is suing the agency for wrongful termination after being fired in 2007 for negligence, insubordination and dishonesty. He alleges he was fired for blowing the whistle on what he described as “a culture of corruption” at the agency that resulted in government business going to friends and spouses of employees.

Hartnett is suing not only the office but two of its employees, including Fort-Merrill, as individuals because he claims they personally retaliated against him, failing to investigate his concerns and orchestrating his termination. An appeals court recently ruled that Fort-Merrill and Lora Duzyk, an assistant superintendent, remain open to personal liability in the case, backing an earlier decision by a Superior Court judge.

The County Office and its employees counter that Hartnett discussed a confidential file with an outside attorney and lied about it, and was discharged for misconduct and poor performance that occurred months before he began raising concerns. His “inflammatory and unsubstantiated claims against [Fort-Merrill] were an eleventh hour smokescreen to obscure the true reasons for his termination,” wrote Pamela Lawton Wilson, one of Fort-Merrill’s attorneys, in a legal brief.

But ethicists and attorneys not associated with the case said it was problematic for Fort-Merrill to advise the superintendent on personnel cases that could end up going to her husband or his firm. Some said the new revelations that BB&K is almost always used for those matters only increased their concern.

“She’s got a problem. It’s an untenable position to be in, and a good law firm would tell her that,” said Bob Fellmeth, a professor of public interest law at the University of San Diego.

Derek Cressman, western states regional director for the nonpartisan watchdog group California Common Cause, said he didn’t know whether the connection was illegal, but said it raised the appearance that Fort-Merrill was “bettering herself.” He said, “If I were a public official that wanted to give voters confidence that I was making decisions based on the public interest, I wouldn’t be doing what she is doing.”

Ward has previously argued that the practice does not pose a problem because he, not Fort-Merrill, makes the final decision on whether attorneys are retained. In an April interview, he said BB&K has a long, respected history of work with the county agency that precedes both Fort-Merrill and himself. Several legal and ethical experts later contacted by voiceofsandiego.org said that explanation is unsatisfactory.

“The fact that there is someone in between saying ‘yes’ and ‘no’ doesn’t mean that this is all fine and dandy,” Levinson said. Using the firm on other cases before Fort-Merrill started working “decreases any appearance of impropriety to a certain extent,” she said, but does not eliminate the problem.

All but one member of the San Diego County Board of Education either did not respond or declined to comment on the link between BB&K and Fort-Merrill because of Hartnett’s case. The remaining board member, Mark Anderson, said he could not comment because it was a personnel issue, but spoke generally about his impressions of the county agency when interviewed in May.

“In my short tenure on the board I find the proceedings and the operations of the County Office of Education to be totally above board and beyond suspect,” said Anderson, who was elected last November. “The very fact that issues are being brought up like this, I think, shows that nobody is trying to hide anything.”

Government employees and elected officials are generally supposed to recuse themselves from government decisions that could impact their finances, said Roman Porter, executive director of the state Fair Political Practices Commission, noting that the rules are complex and subject to interpretation.

Another code prohibits public officials from having a financial stake in the contracts they make, barring them from preliminary discussions, planning or other involvement. Violating that rule can invalidate a contract, forcing vendors or other groups to repay the money. Guidelines from the state attorney general say it should be “liberally interpreted.”

“However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection can be made, the contract is void,” states a 1934 court ruling cited in the guidelines.

Please contact Emily Alpert directly at emily.alpert@voiceofsandiego.org and follow her on Twitter: twitter.com/emilyschoolsyou. And set the tone of the debate with a letter to the editor.

Emily Alpert

Emily Alpert was formerly the education reporter for Voice of San Diego.

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