Editorial: Fresno schools chief just doesn’t get it

It is now clear that Fresno Unified Superintendent Michael Hanson doesn’t understand the magnitude of recent court rulings about the school district’s use of leaseback construction contracts.

Since the state 5th District Court of Appeal ruled in June that the district had improperly used the leaseback method for the construction of Rutherford B. Gaston Middle School, Hanson has downplayed the significance of the ruling.

At a July 8 news conference, Hanson emphasized that the court’s opinion merely was one of several appellate rulings on leaseback. In addition, Hanson has said that Fresno Unified intends to continue to build school facilities using leaseback.

Last week, the California Supreme Court declined to hear Fresno Unified’s appeal of the appellate court decision and refused to depublish the opinion written by 5th District Justices Donald R. Franson Jr., Herbert I. Levy and Gene M. Gomes.

Despite this latest legal setback, Hanson and other Fresno Unified leaders still haven’t gotten the message sent by both the appellate court and the state Supreme Court.

Incredibly, on Aug. 31, Bob Nelson – Hanson’s new chief of staff – said that “at this point in time, no ruling has been made at any level determining that Fresno Unified’s contract with Harris (Construction) was illegal or that Fresno Unified may not continue to use the lease-leaseback process in the future.”

“The opinion only addresses some aspects of lease-leaseback implementation and that has resulted in different parts of the state implementing the law in different ways.”

Other school districts throughout California, however, are heeding these recent court rulings. A spokeswoman for Los Angeles Unified told The Bee’s Mackenzie Mays: “The district intends to rely on other procurement methods in the future until uncertainty surrounding the use of (leaseback) is addressed legislatively.”

This is significant because Los Angeles Unified supported Fresno Unified’s attempt to have the state Supreme Court hear its appeal. In addition, major law firms in California are advising school districts and builders to steer clear of leaseback.

Perhaps, at some point, Fresno Unified leadership will consider what James Ardaiz had to say about the recent rulings. Ardaiz is a former presiding justice of the 5th District Court of Appeal in private practice with Baker, Manock & Jensen of Fresno.

“When the Supreme Court denies a hearing and leaves a published opinion in place, it is now the binding interpretation of the law in California,” Ardaiz told Mays. “All lower courts must follow the opinion.”

Meaning: As long as the 5th District’s interpretation of the law is not disagreed with by another appellate district, it’s the law of the state.

Futhermore, as Ardaiz explained, “Historically when the Supreme Court denies a petition for hearing and refuses to depublish a case, that significantly decreases the likelihood of any of the other courts of appeal disagreeing with the decision.”

Hanson and other district officials seriously underestimated the importance and potential impact of Fresno contractor Stephen Davis’ lawsuit against the district and Harris Construction for the no-bid contract that led the building of Gaston Middle School.

In fact, the district was so cavalier about Davis’ appeal of a Fresno Superior Court ruling that it sent its lawyers into the appellate hearing to argue “facts” that simply weren’t true.

Fresno Unified needs to move on from building schools with leaseback. We imagine that taxpayers are just as tired as we are of the district trying to defend a construction model that the courts have hammered to death.

This story was originally published September 1, 2015 at 11:03 AM with the headline "Editorial: Fresno schools chief just doesn’t get it."