Oscar de la Torre

Conflict broke out in a Dec. 17 School Board meeting when City Council member Oscar 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 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 City Council on Dec. 8. De la Torre disagrees 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 meeting, which Board President Jon Kean would not allow, and was continually muted as a result. In order to deal with the conflict, the Board voted to move to a closed session mid-meeting. 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 intends to have a judge rule on whether his positions are incompatible, but said he does not 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,” said de la Torre. “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, Councilmember 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. Therefore, by operation of law Mr. de la Torre is no longer a member of the Santa Monica School Board,” said Jay Fernow, legal advisor to the District, during the meeting. 

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 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,” said de la Torre. De la Torre said his treatment was an example of the Board seeking to marginalize the voices of minorities and believes it is important for him to continue representing Latinx community members by serving on School Board. 

Board President Jon Kean was frustrated by de la Torre’s interruptions in the meeting, which was attended by over 350 community members and intended to focus on selecting a plan to safely re-open 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,” said Kean. “As our country lives through a non-peaceful 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 is 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,” said de la Torre.

De la Torre is hesitant to leave the Board as he said his racial justice agenda is not complete, citing issues such as the achievement gap for minority students, an unreleased diversity in hiring report, and an authentic ethnic studies curriculum. 

De la Torre said he supports Jason Feldman, the first runner up in the November School Board election, because he will pursue this agenda. 

Clara@smdp.com

SMDP Editor Matthew Hall contributed to this report.