Was That a Red Flag?The importance of working effectively with your school attorney in a litigious litigious adj. referring to a person who constantly brings or prolongs legal actions, particularly when the legal maneuvers are unnecessary or unfounded. Such persons often enjoy legal battles, controversy, the courtroom, the spotlight, use the courts to punish age In the 1950s and '60s fledgling public school leaders dealt with school law in graduate school and then put the texts on the shelf to gather dust. In the '90s, many administrators have day-to-day relationships with their school attorneys. The legal problems confronting superintendents run the gamut See color gamut. gamut - The gamut of a monitor is the set of colours it can display. There are some colours which can't be made up of a mixture of red, green and blue phosphor emissions and so can't be displayed by any monitor. from students' rights to teacher termination with sundry sun·dry adj. Various; miscellaneous: a purse containing keys, wallet, and sundry items. [Middle English sundri, from Old English syndrig, separate. land mines in between. As Guy Doud, a former National Teacher of the Year The National Teacher of the Year is a professional award in the United States. The program began in 1952, as a project by the Council of Chief State School Officers (CCSSO), and aims to reward excellence in teaching. It is sponsored by ING. , recently noted in a speech to a high school audience, the three biggest problems in public schools a generation ago were talking in class, gum chewing chewing or mastication Up-and-down and side-to-side movements of the lower jaw, using the teeth to grind food for easier swallowing. During chewing, the tongue shapes food into a lump and saliva lubricates it for swallowing. and truancy. Today, he suggested, the big three problems are alcohol and chemical abuse, teen-age pregnancy and suicide, with sexual harassment sexual harassment, in law, verbal or physical behavior of a sexual nature, aimed at a particular person or group of people, especially in the workplace or in academic or other institutional settings, that is actionable, as in tort or under equal-opportunity statutes. not far behind. The number of unfunded federal mandates and the corresponding increase in litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute. When a person begins a civil lawsuit, the person enters into a process called litigation. involving school districts have grown geometrically. Civil rights litigation, claims of employment discrimination, Office for Civil Rights' involvement in Section 504 and Americans with Disabilities Act Americans with Disabilities Act, U.S. civil-rights law, enacted 1990, that forbids discrimination of various sorts against persons with physical or mental handicaps. matters, and sexual harassment and the reauthorization of the Individuals with Disabilities Education Act  Some statements may be disputed, incorrect, , biased or otherwise objectionable. Selecting Your Attorney When a school district seeks an attorney's services, the first decision involves a choice between in-house or outside counsel. While no single answer exists, generally large districts with frequent legal problems may prefer in-house counsel, while small districts opt to avoid the overhead and other costs by retaining outside counsel. According to according to prep. 1. As stated or indicated by; on the authority of: according to historians. 2. In keeping with: according to instructions. 3. Melanie Gurley Keeney, co-author of Selection, Recruitment and Retention of School District Legal Counsel, the most important factor in hiring a school lawyer is the level of experience in substantive areas of school law. This should include employment discrimination laws under Titles VI, VII and IX, the ADA Ada, city, United States Ada (ā`ə), city (1990 pop. 15,820), seat of Pontotoc co., S central Okla.; inc. 1904. It is a large cattle market and the center of a rich oil and ranch area. and Equal Employment Opportunity Commission regulations; termination and nonrenewal of licensed educators; contractual negotiations or collective bargaining collective bargaining, in labor relations, procedure whereby an employer or employers agree to discuss the conditions of work by bargaining with representatives of the employees, usually a labor union. process; student issues, including free speech, search and seizure search and seizure In law enforcement, an exploratory investigation of a premises or a person and the taking into custody of property or an individual in the interest of gaining evidence of unlawful activity or guilt. , sexual harassment, IDEA, 504 and ADA; and school board governance laws. The resume of any attorney you are considering should include experience in those areas of the law, membership in organizations such as the Council of School Attorneys, affiliated with the National School Boards Association and experience as a presenter at seminars on school law. Don't overlook practical courtroom experience and conflict of interest issues, such as a lawyer who represents teachers' unions or noncertified workers. Once a lawyer or school law firm is selected, an engagement letter or retainer agreement A retainer agreement is work for hire contract intermediate between simple contracting and direct employment but essentially still contracting. One element that distinguishes it from any other service contract is that a primary consideration which the buyer purchases is an option is recommended. The agreement should indicate who is authorized au·thor·ize tr.v. au·thor·ized, au·thor·iz·ing, au·thor·iz·es 1. To grant authority or power to. 2. To give permission for; sanction: to contact the attorney(s), the budget projections, hourly range of fees, the billing practices, what is excluded and conflict of interest issues. Sample hiring checklists and engagement letters, as well as sample school attorney policies, job descriptions and evaluation instruments for legal services legal services n. the work performed by a lawyer for a client. are contained in the appendices ap·pen·di·ces n. A plural of appendix. to a 1997 NSBA NSBA National School Boards Association NSBA National Small Business Association NSBA Nebraska State Bar Association NSBA National Snaffle Bit Association NSBA National Steel Bridge Alliance NSBA North Saskatoon Business Association (Canada) Council of School Attorneys publication entitled Selecting and Working with a School Attorney: A Guide for School Board Members. Legal Service Costs Whether fee structures are on an hourly rate or a flat-fee basis, one thing is clear: The fee arrangement should be candidly can·did adj. 1. Free from prejudice; impartial. 2. Characterized by openness and sincerity of expression; unreservedly straightforward: In private, I gave them my candid opinion. and thoroughly discussed and understood. The flat fee, or upfront retainer A contract between attorney and client specifying the nature of the services to be rendered and the cost of the services. Retainer also denotes the fee that the client pays when employing an attorney to act on her behalf. , arrangement is less common because of the unpredictable nature of school district governance. A detailed description of those services to be included and specific exclusions from the retainer are essential. Where hourly rates are used, the method of calculating the fee and the individual rates of the attorneys should be established, along with the overhead costs overhead costs see fixed costs. for photocopying photocopying, process whereby written or printed matter is directly copied by photographic techniques. Generally, photocopying is practical when just a few copies of an original are needed. When many copies are required, printing processes are more economical. , travel, depositions, experts and related matters. While hourly rates are likely to be higher for more senior attorneys, their experience often can save in legal fees because that experience promotes efficiency. Any reluctance to candidly discuss fees and billing practices should be cause for concern. Spotting Red Flags Knowing when to call your district's attorney is often a subjective, almost instinctive in·stinc·tive adj. 1. Of, relating to, or prompted by instinct. 2. Arising from impulse; spontaneous and unthinking: an instinctive mistrust of bureaucrats. matter. From the attorney's perspective, it often seems the superintendent is reluctant to seek legal advice before an irreversible irreversible (ir´ēvur´seb  l),adj incapable of being reversed or returned to the original state. position is taken. This observation is prompted by "what if" questions from the superintendent that indicate an action already has been taken for which affirmation is being sought. Effective and insightful superintendents recognize the red flags before taking action and seek preventive legal advice as an integral part of the decision-making process. The ability to recognize potential problems before committing to an action is invaluable to both the school district and its attorney. This is one area where an ounce of prevention is worth a pound of cure. The reluctance to ask questions may stem from the incurred cost under an hourly rate system. However, as Ben Ferrara, immediate past chairman of the NSBA Council of School Attorneys, has noted: "The more legal advice a district seeks, the less legal representation it will probably need." Avoiding lawsuits is much more cost effective, both in staff time and legal costs, than is defending lawsuits in court. Superintendents' Role Once a problem is recognized, the key to a successful relationship with your attorney is effective communication. First and foremost, keep no secrets from the board of education. Administrators and individual board members must understand that the board is the client and that the attorney will routinely keep the board and the superintendent advised of questions and the advice given. Second, it is critical for the district superintendent District Superintendent may be:
Finally, the superintendent must be aware of the facts upon which the legal opinion is based, the limitations and qualifications in the opinion, and the potential for different legal results if the facts vary from those provided. Timely correspondence is also critical, particularly where litigation is involved. Shopping for Opinions Even though a second opinion in a difficult area of the law is sometimes useful, law differs from medicine in that regard. A distinction must be draw between complex issues, which may require specialized expertise (such as tax matters) and routine issues where a desired answer is being pursued. Shopping for the "right" answer may be detrimental to the school district-attorney relationship and could lead to personal liability of the administration and individual board members. To the contrary, when board action is taken in good-faith reliance on the advice of knowledgeable counsel, it is a shield against personal liability even if the advice turns out to have been wrong. Lawsuits and Insurance When a lawsuit is commenced, promptly notify the insurers by providing a copy of the summons and complaint to your insurance agent. Failure to do so may result in a waiver of your errors and omissions errors and omissions n. short-hand for malpractice insurance which gives physicians, attorneys, architects, accountants and other professionals coverage for claims by patients and clients for alleged professional errors and omissions which amount to negligence. coverage. Once notice is provided, the insurer will make a coverage determination and appoint legal counsel. While input as to the choice of an attorney to defend your district usually will be considered, most insurers retain the right to appoint the attorney since the company is paying the fees. Once appointed, the attorney represents the school district. The school district may choose to involve its own attorney at its own expense to assist with or oversee the defense of the matter. Full cooperation with insurance appointed counsel is essential to an effective defense. Whether the attorney is hired by the school district to provide day-to-day legal counsel or is provided by the insurer, he or she is the school district's attorney. Simply stated, the school attorney represents the school board, not the superintendent or individual board members or the insurer. Where conflicts of interest arise, a single attorney may not be permitted to continue representing both the school district and the insurer. Where the conflict is between the superintendent and the school board, the attorney's loyalty remains with the school board and not to the superintendent. ironically, the school attorney's most regular contact in a school district is the superintendent, yet the superintendent is not the client. The bill for legal services is addressed to the school district, not the superintendent. In those matters where the superintendent and the school board find themselves on opposite sides, it behooves both the superintendent and the school attorney to discuss the potential conflict as early as possible. If the issue is whether the board has complied with the statutory requirements for the evaluation of the superintendent or notice requirements for termination, the school attorney owes allegiance to the board and could not advise the superintendent. Similarly, if a question arises as to whether administrative actions were outside the scope of employment (for example, charges of sexual harassment), separate legal counsel may be necessary. On such occasions, the superintendent would be well-advised to seek independent legal advice. Preventive Law Recognizing red flags is the first step in preventing lawsuits. The primary goals of preventive law are two: * To keep your school d strict out of court; and * To put you in a position to prevail if your school district is sued. If your school attorney tells you that following some specific steps will guarantee you never will be sued, find a new lawyer. On the other hand, following sound legal advice that is sought and received in a timely manner greatly enhances the likelihood of a avoiding costly litigation. In striving for that common goal, a relationship of mutual trust and respect between you and your school district's attorney is absolutely essential. Gary Thune, a former high school administrator, is legal counsel to the North Dakoto School Boards Association and a partner with P 'arce and Durick. He chairs NSBA's Council of School Attorneys. RESOURCES ON SCHOOL LAW NSBA's Council of School Attorneys publishes an array of guidebooks on leading legal issues. The council's newest publications include: * School Low in Review 1997; * Legal Handbook on School Athletics; * Selecting and Working With a School Attorney; and * Termination of School Employees: Legal Issues and Techniques. Others deal with school violence, environmental law, child abuse, sexual harassment and religion in public schools. |
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