A conflict is brewing on the school board after board member-turned Santa Monica City Council Member Oscar de la Torre announced on Dec. 17 that he did not plan to step down from his seat on the school board, which he has held since 2002.
The issue arose at the Dec. 17 Santa Monica-Malibu Unified School District Board of Education meeting when de la Torre attempted to continue serving as a board member and was told he could only speak as a member of the public.
The school district believes that per Government Code Section 1099, which prohibits elected officials from holding “incompatible offices,” de la Torre forfeited his board position when he assumed a seat on Santa Monica City Council on Dec. 8. De la Torre disagreed and said it is up to a judge and not the district to decide whether the positions are incompatible.
De la Torre attempted to speak as a board member several times in the virtual meeting, which Board President Jon Kean would not allow, and was continually muted as a result. In order to manage the conflict, the board voted mid-meeting to move to a closed session. After resuming open session, de la Torre was only allowed to speak during public comment.
Under Gov. Code Section 1099, public officials cannot hold two offices if they have “overlapping and conflicting public duties.” De la Torre said he intended to have a judge rule on whether his positions are incompatible—but said he does not expect the judge to rule in his favor.
“I don’t think that’s going to happen. I think you read the law. I read the law,” de la Torre said. “But again, it’s about process.”
The District believes that the code does apply in de la Torre’s case and that he is no longer legally a board member.
“Upon being sworn into the city council, Council Member de la Torre would be deemed by law to have forfeited any prior incompatible position, which would have been his position on the school board,” Jay Fernow, legal adviser to the district, said during the meeting. “Therefore, by operation of law, Mr. de la Torre is no longer a member of the Santa Monica School Board.”(Fernow in this statement did not acknowledge Malibu as being part of the district or board).
Attorney Kevin Shenkman spoke in support of de la Torre during public comment. Shenkman is a friend of de la Torre and represents de la Torre’s wife Maria Loya in the voting rights lawsuit against the City of Santa Monica.
Shenkman said the district does not have the legal authority to remove de la Torre from his position. According to Shenkman, that can only happen if de la Torre submits a letter of resignation or the attorney general rules that de la Torre’s elected positions are incompatible.
The California Attorney General’s office has issued three rulings declaring city council and school boards are incompatible where the city and district have territory in common.
The office first ruled city council and school board seats to be incompatible in 1966. The attorney general’s office reiterated that ruling in 1982, stating the logic had not changed over the years and again in 1990, when the office authorized a lawsuit against Edward L. Chavez who attempted to hold on to his Bassett Unified School District seat after being elected to the La Puente City Council.
According to California’s government code, “When two public offices are incompatible, a public officer shall be deemed to have forfeited the first office upon acceding to the second. This provision is enforceable pursuant to Section 803 of the Code of Civil Procedure.”
“They don’t have the authority to take me off the school board like they did last night,” de la Torre said. De la Torre said his treatment was an example of the board seeking to marginalize the voices of minorities and said he believes it is important for him to continue representing Latino community members by serving on school board.
Kean said he was frustrated by de la Torre’s interruptions in the meeting, which was attended by more than 350 community members, with an agenda focusing on selecting a plan to safely reopen schools.
“De la Torre repeatedly interrupted the meeting stating that he considered himself both a council member and a school board member, ignoring the fact that the two offices are not legally compatible and that he had been campaigning in public and private about his preferred replacement,” Kean said. “As our country lives through a nonpeaceful transition of power in the White House, Mr. de la Torre brought the divisiveness of DC to Santa Monica last night and made a meeting intended to address the educational futures of 10,000 students all about himself and his ego.”
While de la Torre will seek legal action to retain his position, he said he was willing to step down from school board under other conditions.
“So, there’s a couple of ways to get me off the school board. One: appoint Jason Feldman. Two: address the issues that I have brought forward around racial justice. Three: have a judge decide,” de la Torre said.
De la Torre is hesitant to leave the board as he said his racial justice agenda is not complete, he added, citing issues such as the achievement gap for minority students, an unreleased diversity in hiring report and the lack of an authentic ethnic studies curriculum.
De la Torre said he supports Feldman, the first runner up in the November School Board election, because he believes Feldman will pursue this agenda.
SMDP Editor Matthew Hall contributed to this report.
A version of this story first appeared in the Santa Monica Daily Press. It was edited to appear in The Malibu Times.
