NEWARK — The Fair Political Practices Commission is investigating a complaint alleging the Newark school board violated conflict of interest law when it hired one of its members to be an executive assistant to the superintendent, according to state records obtained by this news organization.

The investigation is bringing more public scrutiny to a district that recently voted to close two schools because of declining enrollment and budget troubles, and which has a history of legal issues, at times wayward leadership, and a recent spate of turnover at high-level positions.

Though Superintendent Mark Triplett said a complaint against the district about the hiring is “without merit,” critics of the district disagree and say there hasn’t been full transparency about the issue.

In July 2020, just weeks after the Newark Unified School District board hired Triplett as its new superintendent, the board approved hiring one of its own members, Lucia Gutierrez, as Triplett’s new executive assistant, a role which also requires her to serve as a board clerk during meetings.

At the outset of the July 14 meeting, then-board president Elisa Martinez announced that Gutierrez had submitted her resignation as a board member, effective the day prior. Later in the same meeting, the board hired Gutierrez as Triplett’s assistant, as he recommended.

“This one is an unusual situation because…we’re recommending that the board lose a board member in order to gain an executive assistant in Ms. Lucia Gutierrez,” Triplett said with a smile during the July meeting.

“I think that the original hiring was absolutely, unequivocally illegal, there’s no question,” said Ken White, an attorney and former federal prosecutor who filed the FPPC complaint against the board on behalf of a client, who he declined to name.

Gutierrez went through an application process for the job while she was still a board member, and was one of two top candidates that had a final interview on July 8 with her fellow board member Martinez, who was the board president at the time, and Triplett, according to district staff reports.

White claimed it’s against state conflict of interest law that Gutierrez sought the job while still a board member, and effectively obtained the job while in that role with a clear “financial interest” in being selected for the executive assistant job.

The position pays a base salary of anywhere between approximately $91,000 and $107,000 annually, according to district pay schedules, whereas school board members generally only receive small monthly stipends.

Even though Gutierrez resigned before officially being hired, White said the state’s conflict of interest law, broadly known as Government Code 1090, doesn’t allow for that kind of action.

“There is law directly on point that says a member of a board like this can’t get a job that is approved by the board by dint of resigning and then having it happen,” he said Friday.

According to a copy of White’s complaint on file with the FPPC, he also sent the same complaint to the Public Integrity Unit of the Alameda County District Attorney’s Office.

White, who said he was hired by a concerned resident, is not the only one who took issue with the hiring of Gutierrez.

Christine Clinton, a resident and former candidate for the school board, told this news organization she also filed a complaint about the process with the Alameda County Grand Jury.

“She went from being a board member to a salaried employee, and in my eyes she used her position in order to improve her financial status,” Clinton said of Gutierrez,

“They’re not fully disclosing to the public that they made a mistake and they need to right that wrong,” Clinton said of the district leadership.

John Pelissero, a senior scholar at the Markkula Center for Applied Ethics at Santa Clara University, said he thinks public concern over the hiring is reasonable.

“I find it very unusual just to learn that a sitting school board member gets hired as an assistant to the superintendent that they just recently had hired,” he said in an interview. “Whether or not there’s any kind of conflict present here, it at least presents the appearance of things that might suggest there’s a conflict of interest.”

It’s unclear whether the state commission investigation will turn up any violations of law or other regulations and what penalties would be issued if it does.

At least one of the complaints appears to have prompted district leadership to try and to remedy the situation by having Gutierrez resign from her position earlier this month, and reapply for the job.

According to school district staff reports, Gutierrez resigned on Jan. 7, though the effective date of the resignation is not until Saturday, Feb. 6. Her rehiring on Jan. 21 will become effective on Feb. 8, so she apparently will not miss a single day of work, despite resigning.

“While the district believes the complaint’s allegations were without merit, to eliminate any questions going forward and the need to expend additional district resources on the complaint, the district conducted a subsequent and separate appointment process, which has resulted in the recommended appointment,” Triplett said during the Jan. 21 meeting where the board unanimously voted to rehire Gutierrez.

He did not specify to which complaint he was referring.

“I don’t know how that ends up looking any better,” Pelissero said of the rehiring of Gutierrez.

“I think it’s a fig leaf,” White, the attorney, said of the district’s choice to run through the appointment process again.

Gutierrez confirmed her resignation and rehiring dates with this news organization, but otherwise declined to be interviewed for this article. Triplett declined multiple requests for interviews about the hiring.

Board member Elisa Martinez declined to comment, referring questions to Triplett, and current board president Bowen Zhang did not respond to an email requesting comment.

“We are looking forward to resolving this issue and being able to refocus our full attention and resources on our students and families who need our support,” Triplett said in a Jan. 20 email to this news organization.

White called into the Jan. 21 meeting to share his opinion with the board and district officials before they voted to rehire Gutierrez.

“The board thinks it can cure this violation of the statute by having her resign again from the executive position, and then rehiring her. That is incorrect,” White said during the meeting.

“If you have gotten legal advice that this is safe, what you’re about to do,” White said, I’m here to tell you that is bad advice.”