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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