In a split vote Thursday, the Denver school board narrowly advanced a policy outlining when it can hire its own attorney, sparking debate over whether the measure undermines the district’s first Black general counsel.

The measure advanced with a 4-3 vote.

Directors Xóchitl Gaytán, Scott Esserman and Michelle Quattlebaum — all of whom are up for re-election in the fall — voted against the measure.

The policy will be voted on twice more before being adopted.

Gaytán argued that adopting a policy that would create parameters around when and for what purposes the board will hire outside counsel would actually undercut the first Black person appointed to general counsel. She also contended that the policy — which doesn’t require the board to hire its own general counsel — would be duplicative and costly.

“I believe this policy fractures the district’s legal voice and undermines the governance of this board,” Gaytán said, reading from prepared remarks. “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 council. Third, it does waste money on duplicative, unnecessary, outside council when the dollars should be going directly to our classrooms.”

Proposed by Director Kimberlee Sia, who was elected two years ago, the policy is intended to create parameters around when the board uses outside counsel, not replace the district’s counsel, who is Aaron Thompson, she told The Denver Gazette Friday.

Most legal issues are handled by Thompson.

“The intention of this is to outline the process for how we as board members select an outside counsel,” Sia said.

Having adopted in 2021 what’s called a “policy governance” model, the board is still building those policies. For example, in addition to creating a policy around hiring outside counsel, the board considered three other measures that included the end goals of teaching and learning.

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.

Sia first proposed the measure in June.

Members have been hammering out the language for this policy for weeks.

The pushback stunned Sia.

“None of this came up at the work session,” Sia said. “That’s what caught me by surprise.”

District Spokesperson Scott Pribble said he could not provide how much the board spent on outside legal services last fiscal year or what types of issues prompted the spending.

In June, the board hired an outside attorney to investigate racial discrimination allegations levied by Superintendent Alex Marrero against Director John Youngquist, formerly a longtime DPS employee and principal of East High School.

In May, Marrero asked Board President Carrie Olson to censure Youngquist, accusing him of both “racial insensitivity” and a conflict of interest — alleging he was quietly vying for his job.

The board hired the Denver firm Garnett Powell Maximon Barlow & Farbes to conduct the investigation.

The proposed general counsel policy comes after the board voted 5-2 on new language for a two-year contract extension for Marrero, which included a supermajority requirement to remove him without cause and 90-day notice, up from the 60-day notice that was previously required.

The board did not retain outside counsel in negotiating Marrero’s new contract.

That work was done by Thompson, who reports to Marrero.

As previously reported by The Denver Gazette, board members directed the language they wanted in the contract to Thompson and a secret, two-member committee, in a move legal experts have said may have run afoul of Colorado’s open meetings law.

Bill Good, a district spokesperson, has said that they acted appropriately.

Board members Thursday did raise questions about how, if the board elected to hire its own outside counsel, that could impact interactions with Thompson.

Thompson could not immediately provide the board an answer.

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

Some of the proposed language included who the attorney would report to (the board president), how frequently a request for proposals would go out (every three years) and potential duties (reviewing the superintendent’s contract, attend meetings).

Earlier language had proposed requiring the general counsel to report to the board regulatory violations, lawsuits and monetary damages. This was removed, Sia said, because, under policy governance, the board can only give direction to the superintendent.

The legal counsel would be subject to the board-approved budget.