A Santa Fe-based law firm has done almost $75,000 in work for two Rio Arriba County school districts without signing a contract with either of them.
The Mesa Vista School District paid the law firm of Scheuer, Yost and Patterson $23,596 for legal services last school year, according to a financial report. Payment vouchers show the Española School District has paid the same firm $50,724 since last November.
The SUN requested Mesa Vista’s contract with the law firm in June, after the Mesa Vista School Board hired, through its lawyers, an investigator to review claims that Superintendent Robert Archuleta was drinking on the job. The District stalled for months and it was only in October, after at least a month of legal wrangling, that lawyer Tony Ortiz, the Scheuer, Yost and Patterson lawyer who represents both districts, admitted in a letter that the District does not have a written contract with his firm.
“At the time of the request, the agreement between the district and Scheuer, Yost and Patterson had not been reduced to writing,” Ortiz wrote.
Also in June, the SUN filed a complaint against the Board with the state Attorney General for violating the state Open Meetings Act when according to Board President Joe Gurulé, the Board told Ortiz to hire the investigator, not in a public meeting but instead in what Gurulé characterized as a “phone consensus.”
In a signed affidavit, Gurulé told the Attorney General’s office that Ortiz, not the Board had hired the investigator, and that Ortiz was “empowered by the board through its employment contract” with the District to do so. The District also claimed Gurulé never told the SUN the Board had given those instructions to Ortiz.
The Attorney General’s office ruled against the SUN in the complaint, arguing that Ortiz, not the District, hired the investigator, and that the Board could discuss the investigator in private under the Act, Assistant Attorney General Andrea Buzzard wrote in an Oct. 1 letter. Buzzard did not address in her letter the “phone consensus,” Gurulé described, which amounts to an unadvertised, non-public Board meeting or the District’s payments to Ortiz for the investigation.
Ortiz said in a conversation Tuesday the affidavit referred to the agreement his firm entered into with the District when the Board picked Scheuer, Yost and Patterson over two other bidders in a July 2007 request for proposals. Ortiz argued his proposal and the Board’s vote to accept it are just as good as a contract.
“That vote is the official act that matters,” Ortiz said. “The contract is a sort of after-the-fact memorialization of the process that happens.”
The proposal from Ortiz’s firm does say the proposal is “contractually binding,” but the proposal does not include terms typically included in similar contracts between other school district and their legal counsel, such as a termination clause or a confidentiality agreement.
As for what work Ortiz did that cost the District $23,596, it is not entirely clear. The SUN also requested copies of Mesa Vista’s billing statements from Scheuer, Yost and Patterson. The District supplied, also after a months-long delay, heavily redacted copies of those statements.
The statements show, for example, that Ortiz billed the District $148 for an hour-long telephone conference between Ojo Caliente Elementary Principal Richard Romero and a Taos-based attorney regarding a special education student’s Individualized Education Plan. A statement describes one item that cost the District $478:
“Three telephone conferences with (redacted) regarding (redacted). Telephone conference with (redacted). Letter to (redacted) regarding (redacted).”
The District also denied a request for the findings of investigator Hugh Prather’s investigation on Archuleta, arguing the request would violate the confidentiality rights of employees involved in an internal investigation. The District also argued that, because Ortiz’s firm hired Prather, and because Prather created those documents for Scheuer, Yost and Patterson and not for the District, they are not public documents.
The firm charged the District $1,490.43 directly for Prather’s services, according to payment vouchers. The SUN is still fighting to have the documents turned over for inspection without the redactions.
Superintendent Robert Archuleta said he plans to discuss with the Board at its next meeting whether it plans to sign a contract with Scheuer, Yost and Patterson.
“It’s the Board’s lawyer, is what they’ve always said,” Archuleta said. “It’s not my lawyer or the District’s lawyer, so I don’t know what they want to do.”
None of the Board’s five members returned repeated calls for comment.
Alex Cuellar, a spokesman for the state General Services Department, said it is never a good idea for a government agency work with any company without a contract. The Department oversees purchasing and procurement for state agencies.
“At the least, it’s just generally a good business practice to have a contract when you’re doing business with a firm, especially when it’s a private firm doing business with a government entity,” Cuellar said. “A contract offers certain protections for all parties involved, as far as record-keeping, how much is paid, what duties are expected and just everything that’s involved, whether you’re talking about legal services or buying office supplies.”
But because there is no law that specifically requires the District to have a contract, the District has probably not violated any laws, Cuellar said. That may not be the case with the Española School District, which Cuellar said may have violated a section of state procurement code that requires government agencies to seek competitive bids for “professional services” above $50,000.
The District has paid Scheuer, Yost and Patterson $724 more than that maximum amount since November 2007, according to payment vouchers, but has not secured a contract with the firm.
Superintendent David Cockerham denied the District broke that law. He said he spoke with an official in another state agency, who told him the $50,000 maximum applies only to amounts spent within a single fiscal year. Because the District spent less than that the 2008 fiscal year, which ended June 30, 2008, it has not broken any laws, Cockerham argued.
Cuellar pointed out the law does not say the limit applies only to amounts spent within a fiscal year. He said the law would be perfectly clear if the District had a contract, but the law does not specify how the limit applies when no contract is in place. For example, if the $50,000 limit is interpreted as applying only to amounts paid for one case or project, or for work performed in the course of one fiscal year as Cockerham argued, the District is within the law. If the limit if for the total sum of work performed by a company, the District likely violated procurement code, Cuellar said.
“There’s definitely a gray area there,” Cuellar said. “(Not having a contract) is a whole other problem. How do you know how much you’re spending, where the money’s going, that you’re getting what you bargained for? On the surface, though, it would seem to be a violation of the code.”
The District sought requests for proposals, a type of competitive bid, from legal firms in February 2006, and signed contracts with Ortiz’s former firm, Castille and Ortiz, and two other firms. Cockerham said Ortiz was handling a dispute between Fairview Elementary and Santa Clara Pueblo when Ortiz left Castille and Ortiz and joined Scheuer, Yost and Patterson.
“He sent us a nice letter telling us he would now be working with this other group,” Cockerham said. “He continued to work on that specific case, but we never ended up writing a contract. I’m not saying it’s right, but that’s what happened.”
Española School Board members, all but one of whom were elected after Scheuer, Yost and Patterson started working with the District, said they had assumed the previous Board had signed a contract with the firm. Board President Joe Romero, the only member who was on the Board when it hired Castille and Ortiz, said he thought he remembered hiring Scheuer, Yost and Patterson in 2006.
Cockerham said the District would request proposals and sign new contracts with its legal firms in early 2009. In the meantime, he said, the District will “piggyback” onto a contract between the Las Cruces School District and Scheuer, Yost and Patterson.