Lawyers spent at least an hour last night laying out the facts and explaining the various bodies of law (Government Code 1090, Common Law, Political Reform Act, Board Bylaws) that led to their conclusion that David Kakishiba’s dual roles as Oakland school board member and executive director of the East Bay Asian Youth Center (EBAYC) pose a potential conflict of interest.
EBAYC has received 64 contracts worth $6.5 million and brought 21 grants worth $8.3 million to the school district since 2004, according to the legal analysis. While Kakishiba says he doesn’t take part in the drafting of those contracts or vote on them, the attorneys say that’s not enough to remedy the appearance of — and opportunity for — impropriety, especially since he’s the head of the nonprofit.
Laura Schulkind of the SF-based law firm Liebert Cassidy Whitmore, which reviewed the case, said “the law doesn’t care” if Kakishiba is a noble and ethical public servant — that the laws were written to protect public institutions from nepotism and conflicting economic interests.
It’s not just Kakishiba who faces a potential conflict in the current situation, in her view. For example: What about an OUSD employee who — through no doing of Kakishiba’s — decides to promote a contract with EBAYC, rather than with another organization, in part because he or she thinks it will please the board member (and, maybe, offer job security)?
Enter the “red flag” e-mail. Oakland Unified’s General Counsel Jackie Minor said an e-mail sent by an EBAYC staffer to Kakishiba and Jennifer LeBarre, OUSD’s Nutrition Services director, illustrated the sticky situations that can arise as a result of such an “entanglement.”
In the e-mail, the EBAYC staffer asked for input on contract language for a farms-to-schools grant. She wrote: “Dave and Jennifer, how to make this language about OUSD funding less of a red flag?” (Kakishiba said he didn’t respond to the e-mail, and that the staffer violated his organization’s protocols by sending that message. But he told me the same thing has happened twice since with the same employee.)
“The decision to step down is the trustee’s and the trustee’s alone,” Schulkind told the board. “If the trustee doesn’t resign, then our recommendation is that the board should refrain from entering into contracts with EBAYC.”
After the meeting, I spoke briefly with Greg Cluster, a teacher at Metwest High School. Cluster noted that OUSD is a major employer with countless economic ties in the community. He said he wondered who would be able to serve on the board, by this standard, and how many people involved in the local schools (or who have spouses or children that are) would be precluded from leading the district as a result.
What do you think? If you want to watch the discussion online, go here and click on the video button next to the Nov. 12 special meeting.
As I wrote earlier, the board doesn’t officially decide until Wednesday whether to accept these recommendations. But here’s a preview of how three of the six might vote, based on their public comments:
Gary Yee: “I think the presentation affirms my interpretation to ask Director Kakishiba to stay on, not the other way around.”
Alice Spearman: “We enter into contracts all the time for some pitiful reasons. … There’s been some things that have been done from board members that should definitely be looked at as a conflict, but we don’t do it. … I think I’ll use my better judgment to recommend to David Kakishiba not to resign.”
Jody London: “I still feel like Director Kakishiba adds extreme value to this board … and my preference is for him to be able toserve out his term, for a number of reasons.”