HomeMy WebLinkAbout2003-10-27-LSRC-minReminder
School Legal Services
Review Committee Meeting
will be held on
Monday, October 27, 2003
at 7:30 P. m.
at the Administration Building
1557 Massachusetts Avenue
Lexington, MA 02420
(Please RSVP to Ginny Schwamb
at 781 - 861 -2551 if you are unable to attend.)
John Bartenstein
Ant:
To:
Subiect:
A
Minutes Oct 03 (51 KB)
Marsha Baker rmehleYahotmail.coml
Tuesday, November 11, 2003 8:04 PM
john.bartenstein @verizon.net; sterzin @sch.ci.lexington.ma.us;
bentonOsch.ci.lexinaton.ma.us: bricsmilowna.rcn.com: I i norm 0-comcast. net:
wdaileyjr @sloanewalsh.com; tomg @egh.com; acoliff @aol.com
Draft notes Lepal Services Co.
John, Elaine, Joanne, Howard, Norm, Bill, Tom and
Below and attached please find the draft minutes for the October
meeting. After struggling with producing these notes the high
have had for John has increased substantially. Please e -mail m
comments and /or corrections. Marsha
Alice:
27th
esteem
e your
Lexington Public Schools
Legal Services Committee
Draft notes of the meeting of Oct, 27, 2003
Attending: Marsha Baker, John Bartenstein, Joanne Benton, Howard Brick,
Norm Cohen, Bill Dailey, Tom Griffiths, Alice Oliff, and Elaine Sterzin
Mr. Cohen announced that Ms. Baker is acting as secretary tonight and that
Mr. Dailey will be a bit late.
With minor corrections the minutes of Sept 15 were approved.
The minutes of Oct. 15th were also approved.
We now have approved minutes for every meeting except July 30 which
Mr. Bartenstein will complete and forward to the committee
Ms. Oliff has agreed to write up the committee's final report.
Mr. Cohen reminded us that our assignment for tonight was to bring to the
meeting our thoughts on the strengths and weaknesses of the current legal
counsel and our recommendations for change and how to make better use of
counsel. Mr. Dailey has sent his notes to Mr. Cohen but hopefully will
arrive in time to deliver them in person.
Mr. Cohen asked Mr. Brick, who was unable to be at our last meeting, to be
first to share his thoughts.
Mr. Brick thinks it is a mistake not to recommend a Request for Proposal
(RFP) based on what the committee has done and what we have heard. He
based his conclusion on whether Stoneman Chandler and Miller (SC &M)
should be replaced on several reasons
What we have heard, is that as a general matter the representation is very
good. In terms of technical proficiency in a vast majority of matters, SC &M
performed professionally and competently. That said there have been a
number of major matters that have turned into major problems, in terms of
legal fees and fallout to the town and school communities. Personally he
found statements made by Bob Fraser disturbing, that he was very defensive
and dismissive. He questions the advice and actions of SC &M when they are
not proactive in getting out in front of legal issues. This has been to the
detriment of the Lexington Public Schools (LPS) and the town as a whole.
He looked at Pierce report again as a way to measure in a discrete way
SC &M's performance. The report is critical of SC &M and he does not
come away from our work with unvarnished and flawless approval for SCM.
If the community felt it was flawless then no RFP would be the logical
choice. In particular he stressed that we do need to take into account what is
reaction of community and how decisions are made in Lexington. He does
not single out the school department as sole source but notes the perception
that decisions are made in town government in a back room kind of way
rather than opening up decisions based on merit. He thinks there is a low
cost involved in the RFP process and that overall it would alleviate public
distrust. If SC &M were indeed the best choice then they would have a leg
up. Mr. Brick believes this would go a long way from the political point of
view. Perhaps there is a dearth of legal firms that do this kind of work. But
he does not believe we have enough knowledge to reach that conclusion. A
significant majority of communities we compare ourselves to use SC &M.
Clearly, there is no doubt that Ropes and Gray stands out as being competent
and there is no reason not to give them a fair shake. One does not need to
take issuing an RFP as a condemnation or rejection of SC &M. He thinks the
right process needs to be followed and that the decision needs to be made
openly and that he does not want to be on the record as agreeing with not
issuing an RFP.
Ms. Sterzin asked that if there were RFP and SC &M was ultimately chosen
wouldn't folks still say that the process was flawed.
Mr. Brick answered that he thinks that the reaction would not be the same
Mainly Mr. Brick does not want to go on record that he shares the opinion
that no RFP should be issued. Mr. Cohen assured him that his opinion and
the issues he raised would be covered when the final report is written.
Mr. Griffiths said that when the Town conducted its Legal Services Review
there was a fairly strong argument put forth against issuing an RFP. The
substance of that argument was that in Palmer & Dodge (P &D) we had a
firm that was 95% likely to win the RFP. Taking that into consideration it
was unseemly to put other firms through the tremendous amount of work
necessary to complete a proposal when it seemed so likely that P &D would
win.
Mr. Brick said that in his own experience, he has found that in competing
with an incumbent that the odds are not great and you make a calculus about
whether to go through effort. He doesn't think we will be victimizing other
firms.
Mr. Bartenstein had a thought that was not discussed before. The issue that
we identified would be extraordinarily difficult for other firms to respond to,
because it is an abstract notion, mainly, the issue of good judgment. If you
are dealing with cost comparison it is easy to choose based on objective
criteria. But when dealing with performance as the issue one wonders
whether the first step is to bring to existing counsel the things they need to
work on. If with time it is still an issue you could go forward from there.
Would an RFP provide a meaningful basis for reviewing/measuring these
delicate issues?
Mr. Brick believes in the course of interviewing the principals of a firm you
can get some insight and perception beyond their general qualifications.
Mr. Cohen said that he does not know whe e f "ere are other firms with
SC &M's breadth of knowledge. Ropes and Gray would be great and do
good work but they are not setting their sites in this direction. Deutsch
Williams is a good firm with some good people but with some that this
community would not put up with. Murphy Hessey and Toomey in Quincy
concentrate on labor law and they have some folks who are town counsel in
Bedford. He was worked with them and some are good. In comparison to
SC &M he just does not see that there are enough good alternatives out there
to warrant an RFP. Perhaps there are a few others that maybe he has not
worked with. When thinking about SC &M's special needs is definitely
strength and where P &D has handled relatively few cases. There is a real
need to have folks up on special education changes all the time. He is just
not quite convinced that this is the time to go out for RFP. We should,
however, be right up front with our reasons in our report.
Mr. Bartenstein said that as young associate at Ropes and Gray he worked
for school districts and handled special education litigation. He would try to
find a new associate to train and then that person would leave and they
would have to go and train another. This obviously became economically
unfeasible from the school system's point of view, as rates would invariably
increase. If we went on to the next step of thinking and engaged SC &M
and also used R &G for advice and guidance we would have to consider
Joanne's feedback that using split arrangements is unworkable. it would also
be hard to imagine this solution being feasible and politically acceptable in
the climate of budgetary constraints.
Mr. Brick could visualize R &G being brought in under certain instances.
Ms. Oliff said that crises are going to happen. The question is that SC &M
has to know whether they are the best firm to handle the crisis. A firm has to
know that its strengths outweigh its weaknesses. It is even harder to look at
an outgoing situation. What can we do in future to handle a particular
situation better?
Mr. Griffiths said that when the School Co. is looking for mature alternative
counsel it has availed itself of P &D's services. He would estimate they used
P &D a total of 5 hours meeting time and a few hours in general consultation.
Ms. Oliff added that there are resources out there that the School Co. can
use.
Mr. Brick stressed that a firm needs to recognize when it is over its head.
The burden should not be on the clients to make that call.
Mr. Cohen agreed and told us about person who was the single practitioner
town counsel from a neighboring town. This attorney always knew when to
call for advice from Palmer and Dodge.
Mr. Griffiths added that one area where LPS currently always consults with
P &D is school construction. They also called P &D for consultation on
"respecting differences" issues.
Mrs. Benton returned the conversation to concerns about judgment stating
that regardless of what this committee does that SC &M has to hear the
concerns of this committee or a sub - committee of the school committee.
Mr. Girffiths thought that in particular Rebecca Bryant is listening to our
concerns.
Mrs. Benton reiterated that if we go out for an RFP and SC &M gets in we
would still need to address issues. We should have regular re- evaluations of
our legal services.
Mr. Cohen noted that every three years or so the City of Boston regularly
issues an RFP for it's legal_ services.
Mr. Bartenstein questioned whether an RFP is the right remedy to help
people feel that they had some input on how these things are handled. He
used the analogy that a group involved in litigation against the town then
wanted to know why the town spent so much money defending the lawsuit.
Mr. Brick wondered why should Lexington operate differently than the city
of Boston. At end of a contract the process should be opened up and the
decision made if this is the best choice for the LPS. He asked why not have
an open level playing field process? Especially if the odds are that they
would prevail.
Mrs. Benton noted that legal services are excluded from RFP process under
30B
Mr. Bartenstein commented that in the last 30 years in the legal world there
have been significant changes. R &G represented Gillette for 45 years. That
world has changed there is more turnover in companies and law firms, more
competitive bidding. There is movement to a new model, that of a
commodity and less of professional relationship. The 38 years of our
relationship with SC &M does provide a value added and we might be
undermining that by making them submit to the RFP process.
Mr. Brick said that in the world Mr. Bartenstein described that SC &M
should not be offended if we go for an RFP.
Mr. Dailey did not think that most towns regularly go out for RFP's.
With that in mind and considering that the representatives from the school
administration that we spoke with are uniformly satisfied with SC &M's
services if we did go for an RFP and among the responses was a quote that
came in at lower price than SC &M we would have to take that firm aboard.
He believed that would not be doing LPS a favor. We would perhaps be
giving up a service that is quite good for something unknown.
Mr. Brick and Mr. Griffiths agree. Mr. Brick said that unless a firm came
forward with a clear significant advantage that he wouldn't have a problem
with SC &M being retained.
Mrs. Benton said that we need to get SC &M's attention.
Mr. Cohen thought that it was time that we began to talk about what the
committee members considered to be SC &M's strengths and from there will
go on to weaknesses.
Mr. Griffiths outlined what he considers to be the "positives" for SC& M
1. SC &M's business model.
• Low retainer
• Supported by a large number of school - system clients.
• Yields good profit to SC &M at reasonable, predictable cost to clients
(except when third parties with attorneys are involved).
• This is good business for both SCM and the Lexington Schools
2. Sufficient depth to provide broad coverage in School matters.
• SPED
• Residency
• Student Discipline
• Labor relations and negotiation
• Difficult to find this breadth at this price.
3. High support for SCM among administration and school staff.
• Ready availability
• Helpful_ advice
Ms. Baker also talked about how the LPS administrators uniformly praised
SC &M's responsiveness, availability, and breadth of knowledge as well as
noting the history and perspective gained from 35 of service to LPS.
Noting the importance of the perspective gained by the prior involvement of
SC &M attorneys in education
Ms. Sterzin indicated that she agreed with what had already been said and
noted the broad respect SC &M has in the education community. She noted
SC &M's groundbreaking work in school law and their loyalty to Lexington
over the years is impressive.
Ms. Oliff said that SC &M seems to do good job in training administrators to
do work on their own. Teaching administrators to build proper paper trails.
They have been helpful in contract negotiations although this is a limited
role and that they have been successful in negotiations of arbitration.
Mr. Bartenstein had nothing additional to add.
Mr. Cohen cited the number of school districts that SC &M represents means
that they do not to constantly reinvent the wheel.
Mr. Dailey had many of the same comments but added the quality of the
service and SC &M's availability. He also was impressed with the
confidence in SC &M that LPS administrators expressed
Mr. Brick agreed with most of the aforementioned comments.
We then moved on to weaknesses continuing around the table beginning this
time with Ms. 011iff who began by noting SC &M's lack of political
sensitivity and that they seems to have difficulty meeting the needs of the
school committee. She felt that their legal advice might be in too constricted
a context. They need to place their legal advice in a broader context. When
faced with sensitive issues they need to give options rather than give
opinions. She felt that they do not have enough sense of the community and
its values, the unique needs of Lexington. When the School Co. decides on
a course of action counsel should explain the risks involved in that action.
Mr. Bartenstein felt that they lack an awareness of sensitive issues.
That tunnel vision was a problem and that frequently parent concerns were
excluded. He questioned the possible over emphasis on settlement of special
education cases and wonders about a tendency to settle rather than fight.
He expressed concern about past difficulties with procedural issues
wondering what SC &M could have done to help that from happening
Mr. Cohen felt that SC &M seems unaware of communities issues and
Wonders whether they subscribe to Lexington Minuteman? Perhaps we
could give them a gift subscription. He also felt that Bob Fraser was
reluctant to delegate and that he had to be involved. That Mr. Fraser gave
the impression that he preferred to have it all go through him. The rest of his
comments had already been covered.
Mr. Daily sensed a problem with a lack of sense of the community. That
SC &M may not have appreciated the depth of problems they were giving
advice on. Reluctance on Mr. Fraser's or his colleagues part to sit down,
perhaps one to one with the school committee when ,appropriate. Does Mr.
Fraser have strong feelings and not communicate them? It would be even
better if he heard the strong feelings of others. The School Co. and others
need to let counsel know if there are those feelings.
Mr. Brick felt the absence of a quarterback whose judgment is seasoned and
sober and beyond question. He also sensed that the firm might approach
matters in overly adversarial way. This would lead to advice that was too
legalistic and overly adversarial. He also felt that it is very important that a
firm knows its limits in terms of skills and competency. Mr. Fraser had
expressed to us that on one occasion he had difficulty in getting information
from the District Attorney. Perhaps SC &M did not have the criminal defense
experience needed for this particular case.
Mr. Griffiths stressed that when communicating with parents they need to be
sensitive and reassuring. They need to be sure that any communication
meets policy and keeps parents them posted.
Ms. Baker felt that her points had already been covered.
Mrs. Benton noted a lack of sensitivity and not understanding pulse of
community and perhaps not enough heart She quoted a handout she had
previously distributed from Attorney Martin Semple. "An attorney is not
just a legal advisor, but also an advocate, mediator, problem solver and
counselor."
Ms. Sterzin indicated her points had already been covered.
Mr. Cohen then moved the conversation on to discussing the writing of our
report to the School Committee.
Mr. Griffiths said that there should be one area of recommendations of how
to make effective use of counsel and that this advice should be consistent
with School Committee goals. The School Committee should also
remember to rely on town counsel.
Mrs. Benton recommended that we do a review every three years. That
there be an introduction to school law for new school committee members.
Representatives from SC &M should attend school committee meetings, at
least monthly. We need to share our report with SC &M. SC &M is not just
our legal advisory but our advocate and counselor. The good points of the
relationship should also be stressed.
Mr. Cohen that he knew Mrs. Benton and Ms. Baker had a few
recommendations.
Ms. Baker talked about the recent efforts by Dr. Rochlin and Superintendent
Benton in the area of Policy and Procedure Guidelines. Also noting the
efforts during the 1990's by Rebecca Bryant of SC &M in regard to the High
School Handbook. She recommended that additional areas where clear
policy guidelines would be beneficial should be identified and policy and
procedures developed by LPS in collaboration with legal counsel. Existing
policies should also be periodically reviewed. Given the historically
significant turnover in LPS Superintendents and School Committee
members and their possible lack of experience in weighing of advice from
counsel, it would be advantageous to have a mechanism for training new
Superintendents by legal counsel as well as by the previous job holder.
As previously mentioned by others special care should be taken to avoid
lawyerly communications to the community. A real effort should be made
to respect the concerns of parents and the safety of their children. Everyone
in the school community should be taken seriously.
Mrs. Benton outlined her concerns as being:
• Establish an evaluation process for the firm.
• Every new school committee member should have an "introduction to
school law" seminar.
• Representatives from counsel should attend quarterly school
committee meetings to understand the culture of the town.
• Our report should be shared with counsel so that they understand the
areas of concern.
Ms. Sterzin felt that it was premature for an RFP that we need to establish
performance criteria and assess performance on a regular basis. A new
contract should include a review with expectations that need to be f ifilled.
Ms. Oliff said that her only other comment was that we need more open
dialogue and communication especially in regard to politically sensitive
issues. The firm needs to look at their limitations and know when they are
not in area of expertise.
Mr. Bartenstein feels that SC &M needs to increase familiarity with
community attending School Committee and Town Meetings to begin to
understand the flavor and tenor of discussions. That they should coordinate
with town counsel on potential_ crises. The staff and school committee
should consider involving town counsel in potentially explosive situations.
Help counsel better understand the political context in which the school
committee and school staff operates. Consider a more extensive use of
SC &M in collective bargaining negotiations.
Mr. Cohen everything on his list was already mentioned.
Mr. Bailey also said that his points had already been covered. He also noted
that the depth of the observations, especially Mrs. Benton's, impressed him.
He then joked that Mr. Griffiths was a bit more obtuse and less willing to be
forthcoming. He thinks our report can serve a purpose without causing a
problem with relationships
Mr. Brick encouraged the school committee to not be afraid to seek a second
opinion and to think about the town counsel as its counsel. To ask about
SC &M's experience when a particular matter arises. Counsel should be
encouraged to access and look at town publications.
Mr. Griffiths asked Mr. Brick what he was concerned about with the use of
SC &M by the schools.
Mr. Brick said that he viewed the school committee's role as one of
exercising oversight of what happens within the school_ department.
If a course of action based on advice from SC &M is being followed there
may be instances where in order for the committee to fulfill it's duties it
would need another source of legal counsel or advice.
Ms. Sterzin said that one thing that disturbed her through her limited
understanding of system's theory is the number of forces at work in
explosive situations. Stoneman Chandler and Miller has worked with LPS
for 35 years to keep us out of bad situations. There were many forces at
work here. It is a disservice to lay blame at their feet. No legal counsel
could have prevented what happened.
Mr. Cohen said that many different things came together. In reviewing how
SC &M operates we cannot analyze particular cases.
Mr. Brick indicated that SC &M was not the proximate cause of recent
crises. But we should levy some criticism. He asked if the former School
Committee chairs gave feedback to SC &M.
Mr. Griffiths thought that was an excellent question.
W. Dailey felt that Mr. Fraser's comments were defensive. That the
questions that were given him in advance should not have been threatening.
This may well indicate an uncertainty on the part of SC &M as to just where
it sits with the School Committee. it serves no purpose to allow questions to
remain open and concerns regarding the effectiveness of services to remain
an open issue.
Mrs. Benton excused herself from the meeting due to the late hour and a
previous commitment.
Mr. Cohen said that Ms. Oliff would start writing our report.
Ms. Oliff said that she would appreciate some help and Mr. Cohen agreed to
provide guidance.
Mr. Dailey said that he was sure the report would be superb.
Mr. Griffiths will report back to the school committee regarding our status.
Noting that since we are not going out for an RFP we do not have to be done
quite so quickly.
Mr. Bartenstein had one more question. He is a little worried about who the
quarterback will be for SC &M in the future. Is there someone coming along
who will step up and take the leadership role?
Mr.Griffiths asked for a definition of quarterback.
Mr. Brick offered "ultimate seasoned individual with mature judgment"
Mr. Griffiths said that this was one more excellent reason for asking for the
intermittent reviews of counsel that Mrs. Benton has suggested. He also
noted that the school conunittee has an interest in working more with
Rebecca Bryant.
There was some discussion of the names of the other attorney's at 5C &M.
Mr. Dailey had an extremely high opinion of Kay Hodge.
The next step was to get the minutes completed. Mr. Bartenstein has one set
to complete and Ms. Baker will do the draft for this meeting. When Alice
has a draft of the report ready she will send it around. Once we have a draft
it might be useful to come together and finish up. We will set up meeting
when we see how it is coming together.
Respectfully submitted
Marsha E. Baker
November 10 2003