TAKEOVER LEGALITY DOUBTED ANTONIO'S PLAN FOR LAUSD FULL OF CONSTITUTIONAL ISSUES.

Byline: NAUSH BOGHOSSIAN Staff Writer

Mayor Antonio Villaraigosa's school-reform legislation appears to violate the California Constitution, according to city and state legislative authorities.

Documents obtained Wednesday by the Daily News reveal that experts have questioned the legality of transferring authority from the Los Angeles Unified School District to Villaraigosa, which could threaten the future of the mayor's reform bill.

While there is no legal precedent on this issue, state Legislative Counsel Diane F. Boyer-Vine issued a confidential report questioning the constitutionality of transferring ``authority or control over educational functions currently performed by a school district to the mayor of a charter city.''

The city's chief legislative analyst, Gerry F. Miller, echoed those concerns in his own report to the City Council's Intergovernmental Relations Committee, in which he recommended opposition to the reform measure.

Others said opinions from Boyer-Vine and Miller should not automatically derail Assembly Bill 1381, although its supporters should carefully review its provisions.

``The legislative counsel's opinion does not mean that a court is going to rule that way, but it does not bode well for the legislation,'' said Bob Stern, director of the Center for Governmental Studies in Los Angeles. ``It's one important attorney's opinion, but it does not mean it will be declared unconstitutional. It raises legal questions that an author should consider.''

However, Thomas Saenz, the mayor's chief counsel, maintains that the legislation is legally airtight. He said the legislative counsel based her opinion on the original bill, not the working version with many amendments not yet made public.

``There are no guarantees in life, but we've looked at this issue very carefully and we believe that, fully amended, this legislation is immune from a successful (legal) challenge,'' Saenz said. ``The Legislature's expansive power over public education allows it to define the elements of the state's public school system.''

AB 1381 would shift substantial power from the elected school board to a superintendent who would be hired by the mayor. The bill also would give the mayor authority over three clusters of the lowest-performing schools, and it would give local educators greater control over a campus budget, curriculum and instruction.

Concerned about the possibility of a legal challenge from the mayors of other cities in the LAUSD, Villaraigosa's office got the bill amended last week to allow the county superintendent of schools to revoke his authority over the three low-performing clusters.

As Los Angeles' legislative analyst, Miller focused his report on protecting the city's interest if the legislation passes.

He recommended that the City Council oppose the bill unless there is language to ensure that the city would not have to use municipal resources in support of the district. He also wants to ensure that the city wouldn't be liable for the mayor's decisions about district operations and that the council would have approval over school sites and joint city-district development projects.

It is his job to raise such issues, Miller said, but it's up to the city attorney or Los Angeles' legislative counsel to study the constitutionality of the bill.

``Our concerns that we expressed and the amendments we recommended go to ensuring that there is a continued separation between school funding and liabilities and city funding, so that the city resources and general fund doesn't end up in a position of liability for actions,'' Miller said.

City Attorney Rocky Delgadillo's staff has not released an official opinion.

However, two council committees plan a joint meeting Friday to discuss the bill and LAUSD governance, and might vote on the issue.

Villaraigosa himself is holding town-hall meetings on AB 1381, including one set for 4:30 p.m. today at Valley College.

Delgadillo spokesman Jonathan Diamond said an opinion will be issued once the bill is finalized. ``When we deliver our opinion to folks, we'll do that in a comprehensive way,'' Diamond said.

``It's hard to draw a legal conclusion on something that is not in its final form. I don't know when the bill will be in a complete and final-enough form for us to give an accurate reading of it.''

Kevin Reed, the chief counsel for the LAUSD, said he believes the current bill is unconstitutional and raises liability issues for the city.

``I certainly think that the city has an undeniable vested interest in this issue since the legislation would put duties on the mayor of Los Angeles that don't appear in the (city) charter,'' Reed said.

``There are millions of dollars of liabilities that arise associated with running a school district, and they will now fall on the city,'' Reed said.

``I would think the city attorney would want to be looking into how wise that is, given the fact that the school district as a state agency has certain privileges and immunities in its operation that the city does not enjoy.''

Assembly Speaker Fabian Nunez's AB 1381 is scheduled to be debated by the Senate Appropriations Committee on Aug. 14. More amendments could be announced by then.

Reed said the district has no immediate plans to file suit challenging the legislation, although it has sought the advice of a Sacramento law firm.

``We're doing all of this because of the ambitions of City Hall, not because of what's good government, good education or good law,'' school board member David Tokofsky said.

naush.boghossian(at)dailynews.com

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