How Randy Ward chooses San Diego County Office of Education attorneys

Voice of San Diego reporter Emily Alpert has been busy learning about SDCOE lawyers while I've been down here in El Salvador learning about Central America´s justice system.

Advice from Her Can Mean More Work for Her Husband
By EMILY ALPERT
April 23, 2009

An employee at the San Diego County Office of Education advises her boss on whether to retain attorneys for personnel cases, a decision that routinely leads to her husband's law firm receiving business from the agency.

Michele Fort-Merrill, who oversees the agency's human resources department, is married to William Merrill, a partner in Best, Best & Krieger, a San Diego law firm that frequently represents the county office. She has a financial interest in the firm of more than $100,000 annually through his income, according to state forms that disclose her economic interests.

When an employee is disciplined or other problems erupt with employees in the office, Fort-Merrill weighs whether or not an outside attorney is needed to help navigate legal issues, or whether human resources staff can handle the problem, County Superintendent Randolph Ward said in a recent interview. If she believes that lawyers are needed, she makes a recommendation to Ward, who then makes the ultimate decision on whether to hire an attorney.


Neither Ward nor Fort-Merrill specifies which attorney to use, Ward said. But BB&K is routinely used for personnel cases unless its attorneys lack expertise in a specific topic, Ward said. The county office does not have a written policy outlining the process by which attorneys are hired.

"It's been decided by history that Best, Best & Krieger would be used for disciplinary matters," Ward said. He added, "What typically happens is we would ask BB&K whether they have the expertise on a certain issue, and if we didn't feel they did, we would go to a different counsel."

The phenomenon is one in a spate of complaints raised in a recent lawsuit by a former employee, Rodger Hartnett, who alleges he was fired for blowing the whistle on "a culture of corruption" that resulted in government business going to friends and spouses of San Diego County Office of Education employees.


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While Fort-Merrill does not directly assign legal work to any specific firm, her advice helps determine whether the office turns to outsiders or its own staff to handle difficult issues -- and going to outsiders frequently means going to her husband's firm.

University of San Diego public interest law professor Robert Fellmeth said that the practice would only be acceptable if Fort-Merrill had a much more limited role that involved no independent judgment in deciding when an attorney is needed, such as signing a form to formally request that the agency hire an attorney after an employee filed a lawsuit against them. He cautioned that his opinion relied on the facts supplied by a reporter.

"If she is making decisions to invoke contracts with counsel and she knows that the firm generally hired includes her husband -- there is a problem," Fellmeth wrote in an e-mail. "She influences the volume of business going to law firms -- a substantial part of which inures to her husband's firm."

BB&K received nearly $688,000 in business from the office between July 2005 and July 2008 while Fort-Merrill oversaw human resources, according to documents Hartnett provided to voiceofsandiego.org. Fort-Merrill's husband has decades of experience as an employment and labor law attorney, according to the BB&K website, which lists him as one of only two attorneys in the firm who specializes in school labor relations law.

Ward said that there is no conflict posed by Fort-Merrill making the recommendation because he makes the final decision on whether or not to hire attorneys. He called BB&K "a staple counsel" and said that William Merrill, commonly known as Woody, had been hired by the agency long before both Ward and Fort-Merrill were employed there. He declined to comment on whether Fort-Merrill had ever recused herself from recommending whether to hire attorneys, saying it was too related to the ongoing court case...