Denver Public Schools Superintendent Alex Marrero argued during a discussion of the request-for-proposal process that the board’s policy allowing independent counsel conflicts with district policy designating him as its sole employee.

The new policy was in response to Marrero’s early contract extension in May, which was filtered through the district’s general counsel, Aaron Thompson. Thompson reports to Marrero.

As previously reported by The Denver Gazette, legal experts have said the school board may have run afoul of Colorado’s open meetings law by channeling discussions about Marrero’s contract extension through Thompson and a secret, two-member committee.

Marrero’s new two-year contract features significant changes that included a supermajority requirement to remove the superintendent without cause and 90-day notice, up from the 60-day notice that was previously required.

Most legal issues will continue to be handled by Thompson’s office.

But in some circumstances — such as reviewing the superintendent’s contract or his annual evaluation — the board’s independent counsel would handle. The board could also seek outside counsel in legal matters, in which there is a conflict of interest or appearance of one.

The board adopted its legal policy — known as “GP18” — in October.

Marrero contended that retaining standing outside counsel for the board would cut against the district’s policy-governance model, which says the board’s “sole, official connection” to the operational organization, its management and staff is through the superintendent.

“It can be perceived as another supervisory position that you’re creating,” Marrero said at the March 19 regular board meeting.

It was an argument directors pushed back on.

Director John Youngquist inquired about other instances, in which the board had retained consultants and experts, asking whether that, too, would amount to creating a parallel position.

No, Marrero replied, because of its temporary nature.

Director Amy Klein Molk said, having researched the topic herself, that she’s not worried.

“We are not hiring an employee,” Molk told The Denver Gazette. “We’re hiring outside independent legal counsel. I don’t think that argument holds up.”

Last week’s meeting marked the first time Marrero had criticized the new policy. But the superintendent had expressed his reservations “with some board members in one-on-one conversations,” said Bill Good, a district spokesperson.

This is not the first time the policy has been challenged.

Before adoption, Thompson suggested that hiring independent counsel would stymie routine communication by inserting lawyers between the board and district leadership.

“If you’re represented, you’re representative and I would have to go through your council to talk to you,” Thompson has told the board.

And President Xóchitl Gaytán said the policy would undercut the district’s general counsel.

“I believe this policy fractures the district’s legal voice and undermines the governance of this board,” Gaytán has said. “Second, it does send the wrong message to our staff, our DPS staff, our DPS community, by stripping away the duties from our very first Black general counsel.”

Having adopted in 2021 what’s called a “policy governance” model, the board is still building out those policies.

Policy governance establishes the responsibilities and relationship between the superintendent and board of education. In theory, the model allows the board to focus on advancing its vision for the district.

Legal counsel would be subject to the board-approved budget.