A day after Lorena Gonzalez, formerly the region’s most high-profile labor leader, was elected to the California Assembly, the San Diego-Imperial Counties Labor Council elected San Diego Unified School District Trustee Richard Barrera as its new leader.

Barrera’s election immediately raised questions, which ramped up when he announced he would stay on the school board and hold both positions.

Most of the teachers and administrators at city schools belong to unions that are, in turn, members of the Labor Council. As such, Barrera will now be taking part in school board decisions that could directly impact those he represents as head of the council.

The apparent conflict agitated local political leaders on the right.

Q for Barrera: When did you know about @sdlaborcouncil spot? Should you have ever recused at @sdschools? @wendyfry @willcarless @karenkucher

— Tony Krvaric (@TonyKrvaric) May 23, 2013

Q for @sdlaborcouncil: Gov’t stats say 100k union ed. workers in San Diego County. Your membership 200k? @wendyfry @willcarless @karenkucher

— Tony Krvaric (@TonyKrvaric) May 23, 2013

Q for @sdlaborcouncil: Will you release legal opinion (that YOU paid for, ahem) that says Barrera is OK? @wendyfry @willcarless @karenkucher

— Tony Krvaric (@TonyKrvaric) May 23, 2013

A week later, few answers have surfaced.

Barrera said he has an opinion from the Labor Council’s lawyers that says no conflict exists. He is waiting for the school district’s lawyers to weigh in, but said they too have told him he’s fine. District Chief of Staff Bernie Rhinerson said that opinion is being provided by outside attorneys and should be available within a week.

So is there a straightforward conflict as Krvaric and others have claimed? Or is Barrera entitled to hold his political day job, as he says, without it impacting his decision-making on the board?

Let’s take a look.

Three experts on political conflicts of interest agreed that there are essentially two ways Barrera could be conflicted in his new position:

• if he participates in decisions that would impact him financially; and

• if he was hired by the Labor Council to directly promote its interests at the San Diego Unified School District.

A Financial Conflict

Barrera needs to recuse himself from any board decisions that might have an impact on his own finances, the lawyers said. The tricky part will be identifying what such decisions might be.

San Diego Unified, like most California school districts, spends more than 90 percent of its day-to-day budget on salaries and benefits for employees. That means an awful lot of the decisions the school board makes are related to employee pay.

The district has to negotiate, and the board has to vote on, labor deals with four different unions that are part of the Labor Council. The largest of those is the San Diego Education Association, which represents local teachers, and whose president sits on the Labor Council’s executive board.

Barrera said that shouldn’t be a problem for two reasons:

• dues from San Diego Unified unions make up less than 5 percent of Labor Council dues; and

• the Labor Council has taken those dues out of its general fund and placed them in a different fund, meaning they won’t go toward his salary.

Jim Sutton, a San Francisco attorney who specializes in election and campaign law and who has worked in San Diego, said those assurances don’t put Barrera in the clear.

The California Government Code is very clear, Sutton said. If Barrera’s votes on the school district affect his source of income, then he must recuse himself.

“His source of income is the Labor Council, so regardless of which Labor Council bank account it goes into, if he works on these collective bargaining agreements, and it leads to higher salaries for the members of the union, higher salaries mean higher dues into the Labor Council,” Sutton said. “Whatever bank account it is, the Labor Council gets it.”

Sutton said Barrera should recuse himself, at the very least, from any votes on collective bargaining deals.

Fred Woocher, a Los Angeles election attorney, agreed.

Barrera and the school district’s attorneys will have to scrutinize every school board vote to ensure that it wouldn’t have an impact on Labor Council membership and therefore on Barrera’s source of income, Woocher said.

Neither Sutton nor Woocher said they believed Barrera needs to step down from the school board, just that he needs to be very careful when making certain votes.

The ‘Nexus Test’

The second possible conflict facing Barrera is even murkier.

Barrera said he’s protected from any accusation that he was hired to further the interests of the Labor Council on the school board because of the process by which he was elected.

That process didn’t include any communication that he would have to push the Labor Council’s agenda on the school board, Barrera said. If he was ever asked to do that, he’d resign from the Labor Council, he said.

Here, the experts were split.

Sutton said the California Government Code has something called a “nexus test” to resolve such questions. If it can be shown that there is a significant nexus between an official’s public job and his private employment, then he should recuse himself from votes, Sutton said.

In this case, it’s clear that there’s a nexus between some of the votes Barrera would make as a school board member and his work at the Labor Council.

“I mean, come on buddy!” Sutton said. “It doesn’t pass the smell test.”

Woocher disagreed. He said public officials are often elected to push certain ideological or philosophical viewpoints once they’re in power. Just because Barrera might vote in favor of decisions that would serve the Labor Council’s interests doesn’t mean it could be proven that he’s doing that specifically to help his employer, Woocher said.

“We don’t expect people to be free from any allegiances they may have in terms of political philosophies or general governmental philosophies,” he said. “We have a system in which people are not required to be free from certain viewpoints.”

Barrera said he’s consistently acted in the best interests of the school district and will continue to do so. He’s also consistently stood up for workers, and as a long-time employee of a labor union, he’s not ashamed of his political allegiances, he said.

“If I was to change my approach to the way I make decisions at the school board, whether it’s contract negotiations, or budget decisions, where I was prioritizing the interests of member unions over the interests of the greater public — even if there was not an explicit legal conflict — I believe at that point there’s a moral conflict,” he said. “The public can’t rely on the law; the public has to rely on me choosing the interests of the greater public.”

Keeping the System Straight

Of course, rules don’t really matter unless they’re actually enforced. In this case, there is in effect a four-tiered enforcement mechanism to make sure Barrera doesn’t vote on things he shouldn’t:

• Barrera should recuse himself from any votes that he has a conflict on;

• the school district’s attorney should step in and tell Barrera to recuse himself when necessary;

• if he doesn’t recuse himself, then a complaint could be filed with the Fair Political Practices Commission, which has the power to levy a fine on Barrera if he’s found to have had a conflict of interests in a vote; and

• specific votes of Barrera’s could be challenged in court. This might happen, for example, if Barrera was the deciding vote on a big labor deal, or on a vote to issue pink slips to teachers. If successfully challenged in court, the board’s decision could be nullified.

What Now?

The school district should release its own independent legal analysis of Barrera’s conundrum within a week.

If that analysis is less favorable to his position, Barrera might reconsider his decision to stay on the board.

Barrera has said that regardless, he will recuse himself from voting on any decisions the Labor Council “takes a position” on. The organization has rarely involved itself in specific San Diego Unified issues, so exactly what “taking a position” means will have to be fleshed out in the months or years to come.

In the meantime, Barrera’s detractors will likely continue to make a lot of noise, but the real test will be whether they actually sue to invalidate any of his votes.

Krvaric, reached by email, said he’s waiting to see what the district’s attorneys say on the matter.

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Will Carless

Will Carless was formerly the head of investigations at Voice of San Diego.

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