Who's Serving Whom?

Sorting out the superintendent-school board attorney relationship

The information contained herein is not intended to provide advice in the handling of individual situations. For specific advice, consult your local school attorney.

You've probably run across such disclaimers frequently in the ever-increasing volume of legal publications in the educational arena.

Never before has American public education faced a more critical need for legal information, and never before have superintendents been more knowledgeable about matters of school law. Neither have superintendents had a greater need for assistance from legal professionals.

To navigate the litigious waters of school administration today, superintendents must know how and when to use the local school board attorney. And just as important, the superintendent, school board members and the school board attorney must have a workable understanding of the same.

To merely add the school attorney--whether a district employee or an outside consultant--to the list of specialists regularly called upon by the superintendent and board would be a serious error. Effective school leadership dictates that the position of the school attorney hold special status with the leadership team. To accomplish this, several issues must be resolved.

A Clear Understanding

What follows are questions a superintendent should review with the school board and school board attorney to define the role of the attorney for maximum clarity among all parties.

* No. 1: As superintendent, are you comfortable in asking for timely assistance?

The personality type that allows a superintendent to leave the relative security of other positions to take on the chief school officer's role may contribute to a hesitancy to call the school board attorney in a timely manner to request assistance. This is particularly true as school boards try to conserve their use of public funds.

However, spending on legal advice should not be seen as an extravagant expense but rather as the cost of doing business and even as a means of avoiding much costlier outlays resulting from legal missteps.

* No. 2: What members of the leadership team are authorized to contact the school attorney for legal advice?

The effectiveness of all school district specialists and consultants is related to the superintendent's ability to use them skillfully. The superintendent should establish a clear understanding with the board on when to consult and how best to use the attorney, just as all board relationships are developed and subsequently modified over time to fit the needs of the leadership team. In addition, the superintendent must reach an understanding with the attorney on how matters are to be brought before the board.

The superintendent ought to be responsible for orchestrating the relationship among the superintendent, board and attorney for maximum effectiveness.

Special consideration should be given to those instances in which the superintendent's employment contract is the issue before the board. But even these communications should be done with the superintendent's knowledge.

* No. 3: How is legal advice from the board attorney communicated to the leadership team?

Board meetings and interim reports from the superintendent are routine forms of communication. In the case of legal advice, care should be given that administrative editing of the attorney's advice and information does not become a casualty of space- and time-saving efforts. When legal advice is delivered in writing, it should be done so in original form from the attorney. When the need for face-to-face delivery is in order, it should be done so by the attorney.

Non-Legal Counsel

* No. 4: Will the board attorney attend board meetings regularly or on an on-call basis?

Both practices can be used effectively. If the attorney's attendance is on an on-call basis, the decision is best made by the superintendent in onsultation with the attorney. No. matter how frequently the attorney attends board meetings and how familiar he or she may be with the general issues of the district, care should be taken to solicit legal advice only when appropriate and to resist the temptation to solicit input from the attorney on strictly educational matters.

Everyone, school lawyers included, has opinions on how educational institutions should be run. You don't want the attorney's opinions on curricular or administrative matters to be interpreted as legal advice.

* No. 5: Is your school board attorney a solo practitioner or a member of a legal firm? An attorney's affiliation makes a difference. If your board uses a law firm specializing in different areas of the law, beware of the possible use of different attorneys in different circumstances. This may not be a desirable situation as school law has become a highly sophisticated area. Specialization within the field appears to be a growing trend among law firms large enough to afford it. Consider the pros and cons to using individual practitioners versus teams from within a firm.

* No. 6: What is the fee basis of the attorney: retainer, hourLy or retainer/hourly combination?

The effective use of the school board attorney, particularly before legal entanglements arise, is a cost-effective use of the attorney. The nature of legal defense work is such that developing cost estimates is akin to determining the cost of plowing a field or digging an underground well. Sensitivity to this issue will alleviate the potential for unnecessary frustrations later on.

* No. 7: Are second opinions desirable?

While second opinions from medical doctors and auto mechanics are common and often fitting, second opinions in the legal arena are not advisable. The nature of the relationship between the school attorney and leadership team is such that if second opinions from the attorney seem appropriate with any degree of frequency, it is more likely that you need to consider a second attorney instead of a second opinion.

Updated Information

* No. 8: What ongoing information services (such as newsletters, works hops, Internet web sites, e.) are provided by the board attorney to support the leadership team?

A particular need exists for a continuous flow of legal information for superintendents and board members to absorb. Such information will help them know when, where and how to ask the right questions of legal counsel. Armed with this knowledge, superintendents and board members can make informed decisions.

* No. 9: Do you clearly understand that the attorney works for the board of education?

When legal advice is given to the leadership team, this makes it every bit as helpful to the superintendent as it is to the board-except when the issue before the board is that of the superintendent's employment contract. Great care should be taken by the superintendent in such cases to ask little of the board attorney and to rely instead on advice from other sources. AASA, the superintendent's state association and personal attorneys are equipped to assist in such matters. Using these three sources in tandem is recommended.

The close working relationship between the superintenden and the board attorney breeds familiarly between the two. This condition maks it all too easy for the superintendent to 'assume the attorney is interested in hat is best for both the superintendent and the board. On a personal level, thimost likely is true. Professionally, though, the school board attorney's allegian falls squarely on the side of the schoo board. This is not to suggest anything d rogatory about school attorneys but to st te firmly that an attorney cannot repre ent parties on both sides of the contract

I would be remiss by f iling to offer a final reminder about the guidance in this article: The informa ion contained herein is not intended to rovide advice in the handling of spec ifi situations. For specific advice, consult y ur professional association. U

Walt Warfield is the executive d rector of the Illinois Association of School Ad inistratars.