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HomeMy WebLinkAbout2004-03-03-LSRC-min Reminder School Legal Services Review Committee Meeting will be held on Wednesday, March 3, 2004 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 ) Minutes Legal Services Review Committee March 3,2004 The meeting commenced at 7.30 p.m. Present were Norman Cohen, Tom Griffiths, Joanne Benton, Elaine Sterzin, John Bartenstein, Marsha Baker, Howard Brick and Alice Oliff. The minutes of the July 30, 2003 and October 27,2003 meetings were approved without change. The Committee then discussed the draft report that had been prepared by Ms. Oliff, with some editorial input from Mr Cohen and Mr Bartenstein. With a few minor edits,the report was approved for delivery to the School Committee in the form attached to these minutes. The report will be considered by the School Committee at its meeting on March 23, 2004, and Mr Cohen will attend that meeting to represent the Committee All agreed that Ms. Oliff had done a wonderful job summarizing the work and recommendations of the Committee, and the members of the Committee expressed their appreciation for her hard work. The Committee then voted to adjourn with the understanding that, subject to any request for further mput or assistance by the School Committee, its work has been completed. Mr. Griffiths thanked all of the members of the Committee for their service and for making an important and useful contribution to the Lexington Public Schools. Attachment, LSRC Minutes, 3/3/04 SCM's Representation of the Lexington Public Schools SCM attorneys have represented the Lexington Public Schools for over thirty years. Until June 30, 2001, SCM had a retainer agreement with the Lexington Public Schools. A copy of that agreement is attached as part of Exhibit C. When that agreement expired, another agreement was proposed but not signed. A copy of the proposed agreement is attached as part of Exhibit C. SCM continues to provide the services specified in the agreement while School Committee review of the agreement is pending. Under the retainer agreement the following services are provided. •Personnel and labor relations including contract negotiation, contract administration, grievance processing and labor relations consultations, consultations and legal opinions, but not including investigations, hearings arbitrations and litigation. • Special Education including consultations, legal opinions, correspondence and initial case analysis, but not including mediation, hearings and litigation. • General school law including consultations and legal opinions relative to all general school law matters, preparation of contracts and attendance at school committee meetings when necessary, but not including investigations, hearings and litigation. For matters that are not covered under the retainer agreement, SCM bills by the hour at its usual billing rates, which range from$180 per hour to $260 per hour. The fees paid to SCM by the Lexington Public Schools for the past 5 years are as follows: FY 1998 retainer fee $30,000 other fees $44,000 total $74,000 FY 1999 retainer fee $40,000 other fees $33,000 total $73,000 FY 2000 retainer fee $45,000 other fees $56,000 total $101,000 FY 2001 retainer fee $50,000 other fees $50,000 total $100,000 FY 2002 retainer fee $52,000 other fees $113,000 total $165,000 FY 2003 retainer fee $54,000 other fees $64,881 total $118,881 Overview of Legal Service Needs of the Lexington Public Schools The legal services used by the School Department are outlined in a Memorandum dated April 27, 2003 from Superintendent Benton. (Exhibit A) The services used most often are in the following areas: personnel issues, such as supervision and evaluation and terminations, student issues such as suspension and expulsion and special education, general legal issues mcluding due process rights, public records access, school construction issues, and government funding and grants; labor relations and collective bargaining; education and training; residency issues; and policy development/drafting. Most School Committee use of legal counsel is collaborative use with the Superintendent, such as in the drafting of policies. The School Committee has direct dealings with SCM, without the involvement of the Superintendent, when dealing with the Superintendent in regard to supervision and employment (e.g. negotiation of an employment contract), and m situations where there is conflict between the interests of the school system and interests of the Superintendent. SCM estimates that they have spent approximately 25% of their time on personnel issues, 25% of their time on student issues including special education, 20% on general -4 - Attachment, LSRC Minutes, 3/3/04 good alternative in a school district the size of Lexington because there could be workflow issues with too little to do on some days, and too much on others. Business and Finance: Susan Bottan, Director of Business and Finance, indicated that she primarily deals with SCM around residency issues, and that about 15 residency questions come up each year She also has dealt with SCM around transportation issues, including new laws on child passenger safety; student attendance policies, and due process. All of these areas are covered by the SCM retainer agreement. She confers with SCM about 40 hours per year Ms. Bottan has found SCM to be particularly responsive, and"incredibly helpful." Special Education: Denise Rochlin, Director of Special Education, has just completed her first year in the Lexington Public Schools but has had considerable prior experience working with school counsel in special education matters. When she came to Lexington, she found that there had been a large number of rejected TFP's and a large number of settlement and mediation agreements. There also appeared to have been a high level of contentiousness and an emphasis on resolving disputes through legal channels. She has been trying to reduce the need for legal process, and working to help staff understand the state and federal due process requirements and follow the procedural rules. Her goal is to improve procedures and communications such that there will be less need for attorney involvement in school-family conflicts. Dr Rochlin has used SCM to answer questions about the interpretation of the law and the impact of case law, and to answer process-oriented questions. She has been working with her department to develop a procedural manual, and SCM has provided input on special education procedures and policies. When she arrived in Lexington, she inherited a District Action Plan that resulted from a full Program Quality Assurance Review performed by the state Department of Education(DOE) in 2000 The corrective action plan required Lexington to address 39 issues, and she has already addressed 23 of those issues. She did not attribute any of the shortcomings noted by DOE to SCM. Dr Rochlm stated that most of the services provided by SCM in the special education field are case-specific, not global. The special education administrator is responsible for understanding procedural requirements and keeping abreast of any changes. About 25%of the SCM retainer fee is attributable to special education, subject to additional fees if outside counsel is involved. When Dr Rochlin has contacted SCM about issues that have arisen, she has found them to be"very responsive" and very helpful. She feels that many of the issues Lexington has experienced have to do with changes in leadership, and do not suggest any need for a change in legal counsel. In special education disputes, she believes SCM's assessment of the strengths and weaknesses of a case has been accurate. When asked to rate SCM, Dr Rochlin said she has found attorney Joan Stein highly responsive. She said that Attorney Stein has provided information in a timely manner and has been good at connecting the pieces and understanding perspectives. Dr Rochlin believes that Attorney Stein is a good philosophical match and has a good understanding of Lexington's needs and perspective. She has found her advice to be on target and her appraisal of the merits of a case to be honest. She felt it was premature to make a full evaluation since, so far, all of the cases have settled and none have gone to hearing. Dr - 6 - Attachment, LSRC Minutes, 3/3/04 Rochlin said that although there are some good single practitioners whose advice she would trust, she prefers a larger firm where lawyers can confer with others with specialized expertise. School Committee: The School Committee's experience with SCM was divided into two categories. anticipated interactions such as dealing with the collective bargaining process, negotiating contracts, and dealing with grievances, and unanticipated interactions such as dealing with the resignation of a superintendent,the appointment of an interim superintendent, negotiation of a contract with a new superintendent, or litigation agamst the Lexington Public Schools. It should be noted that, in addition to employing the services of SCM, the School Committee has occasionally used town counsel when there is a particular issue as to which it might not be proper for SCM to offer advice, when SCM is not qualified to offer advice or when there are school issues with profound ramifications for the town. For example, the"Respecting Differences" litigation was handled by Palmer&Dodge (P&D) P&D has also been consulted on some larger issues when it was felt that aspects of what was occurring presented a town-wide issue.' In general, the former School Committee chairs felt that the use of town counsel should be the exception, not the rule, and that it is most desirable for the same counsel to represent both the school system and the School Committee except when conflicts might arise.2 However,they also felt that P&D has offered a"different expertise and a different vision" and has proved to be a valuable supplement to the school-focused advice given by SCM. One former School Committee chair felt that P&D had been more successful than SCM in placing good technical advice in a wider context, and that P&D had a better sense of the community and its values than SCM. The former School Committee chairs found SCM very helpful in collective bargaining although that role has been limited since LPS adopted a method of negotiating directly with the unions following a teacher strike in the late 1980's. This approach, known as "process bargaining," is less adversarial, and one objective was to get attorneys out of the process. The role of legal counsel is to be available to provide assistance. They have helped negotiators by providing information about terms and settlements in other towns. They provided good information about salary increases in other communities and helped anticipate problems. They have also provided mentoring and assistance to school committee members about process negotiating. SCM's knowledge of labor law is good, and they are on top of trends in the field. The former school committee chairs believed that SCM would prefer to take a more active and direct role in the collective bargaming process. The former chairs of the School Committee observed that people in key positions had confidence in SCM, and that SCM has done a good job on special education matters. They saw `great strength' at SCM, and felt that SCM's advice on narrow technical questions of state law has inspired confidence. They expressed high satisfaction with the 1 In one litigation matter,involving advertising submitted to the Musket, School Committee members were represented pro bono by Jason Berger of Testa Hurwitz. The former School Committee chairs agreed that Mr Berger represented them"wonderfully"through every step of that process. 2 In the case of negotiations between the School Committee and the Superintendent,SCM has typically represented the School Committee only,and the Superintendent has engaged separate counsel. - 7 - Attachment, LSRC Minutes, 3/3/04 counseling that SCM provided in connection with the negotiation of Dr Ruane's original contract, and the School Committee chair at the time of Dr Ruane's departure was satisfied with SCM's advice in connection with her departure. The former School Committee chairs felt that SCM's representation had been more problematic when technical legal advice needed to be placed in a wider context in regard to issues of municipal or political significance, although this concern did tend to abate over time. At least one former chair expressed the view that SCM needs to have a more integral sense of the community and its values, and a heightened awareness of the unique needs of Lexmgton. In regard to the situation at Fiske, the former School Committee member who was chair at that time said that he wished that SCM had allowed members of the School Committee to take more risks when communicating with the public. The School Committee member on the Review Committee expressed concerns about the "explosions"that have occurred over the past few years, including the departure of a former superintendent and the Fiske matter At least some members of the School Committee have questioned whether these explosions might have been avoided, or their severity mitigated, by different, better or more proactive advice of counsel, and this concern is in part what led to the creation of the Review Committee. SCM Presentation At the Review Committee's meeting on September 1, 2003,the three attorneys from SCM who work most extensively with the Lexington Public Schools, Robert Fraser, Rebecca Bryant, and Joan Stein, appeared and made a presentation. They subsequently answered questions by the Review Committee. The key points made in their presentation are summarized below Mr Fraser, who manages the client relationship, began by emphasizing that SCM has a long history in Lexington, having been legal counsel to the Lexington Public Schools for approximately 35 years. Much of the benefit SCM has provided, he believes, is based on the trouble the schools did not get into, and that there were many potential missteps where SCM's advice and guidance allowed the schools to avoid issues that could have been problematic. SCM started from a base of labor relations in the private sector They worked with the administration and school committee to preserve managerial rights that are essential to the daily management of a school district. Other areas of school law in which SCM has developed areas of expertise mclude special education, employment discrimination, student rights, and parent rights. All of SCM's lawyers who work with public school districts have had some prior involvement with education. These attorneys concentrate exclusively on education law for the firm's 50 school district clients, such that they are able to provide immediate advice and guidance. Use of in-house counsel for a town the size of Lexington is rare. In a letter dated May 5, 2003, addressed to Superintendent Benton and attached as Exhibit F, Mr Fraser highlights the firm's accomplishments with the Lexington Public Schools. These include successful litigation over the removal of a tenured teacher for inefficiency and incompetence under the Education Reform Act,the removal of a teacher under the old statutory scheme, and the removal of a high school principal. They also - 8 - Attachment, LSRC Minutes, 3/3/04 include the negotiation of arrangements for the departure of two superintendents and work with the policy subcommittee of the School Committee to develop school policies. Mr Fraser indicated that although SCM has been consulted in the collective bargaining process, its role has been minimal, due to the model of"collaborative" bargaining the School Committee has adopted. He said that SCM attorneys have had much prior experience in the field of education and that this gives a"higher dimension" to the advice and representation they can give to school districts. He feels that school clients that use different counsel for different topics results m greater cost and loss of expertise. He also feels that it is better for the school system to have its own counsel than to rely on town counsel since the interests of the municipality and the school system are not always in harmony Ms. Bryant spoke about advice that SCM provided to the Lexington Public Schools following the passage of the Education Reform Act in 1993 That Act gives principals the power to discipline and suspend students. Ms. Bryant worked on a high school handbook that set up a disciplinary code. The policies have worked well, and have enabled Lexington to avoid the litigation over student disciplinary issues to which many other communities have been exposed. Ms. Bryant also spoke about her involvement in collective bargaining with the custodial union, and the value she believes she has added to that process. Ms. Stein indicated that most of her work with Lexington Public Schools has involved special education issues. She assists in assessing the strengths and weaknesses of cases, is sensitive to procedural issues and gives advice on settlements. She said that she makes every effort to help the school administration to find the most cost-effective and positive solution. She has also worked with issues regarding special education evaluations requested when disciplinary issues arise and she has worked with the high school principal to successfully resolve these matters. Although disciplinary questions have remained in the district, a number of special education matters have gone to litigation. She has also assisted the Director of Special Education in the development of a handbook on special education. She communicates frequently with other lawyers in the firm that concentrate on special education cases. Regarding the Fiske situation, Mr Fraser asserted that the Pierce Report found that SCM had given sound legal advice to the town and school administration. SCM had to balance the safety of children in a public school setting with the rights of the employee involved, including collective bargaining agreement requirements and constitutional considerations. Mr Fraser believes that the School Committee,the district and the administration did a good job handling a difficult and controversial situation. When asked specifically how he might have handled the matter differently with the benefit of hindsight, Mr Fraser acknowledged that the Pierce report had been critical of a letter sent to parents that he had drafted for Superintendent Benton. He agreed that the letter could have been written differently, and said that he understood the parents' reaction. Mr Fraser expressed his opinion that a significant part of the problem was politicization of the matter and the adversarial approach taken by public agencies involved including DSS and the District Attorney's Office. He said his firm could have done more by way of outreach, and that the Lexington Police Department had made commendable efforts to get all of the parties working together He said that negotiations had taken place between SCM and the District Attorney's Office to develop a new policy on child abuse. - 9 - Attachment, LSRC Minutes, 3/3/04 In response to the Fiske situation, Ms. Bryant stated that sometimes the strictly legal approach might not be the right thing to do She said that sometimes it might be better to do the right thing for the community and take the consequences in an arbitration proceeding. Mr Fraser indicated that when the advice of SCM is sought on questions such as the dismissal of the superintendent, SCM assembles all of the facts available and sets out the options. He said that it is the School Committee and the school administration that make the decisions and that SCM's job is to make the decisions stick with the least exposure and expense. Mr Fraser indicated that 25-30%of the advice they give to the Lexington Public School is proactive. The other advice and counsel is reactive to particular problems. Committee Recommendations In analyzing the performance of the current counsel, SCM, the Committee concluded that, in general, they have provided the school system with good representation at a fair and reasonable price. School administrators and staff almost uniformly praised their performance, citing their technical proficiency, professionalism and competence. The firm has a good breadth of knowledge and sufficient depth to provide broad coverage for the system on a timely basis. They have regularly provided administrators with memoranda regarding changes in laws relating to school matters. Overall, they have been very successful in the arbitrations with which they have been involved. The firm is known for some of the groundbreaking work it has done in the area of school law, including successfully arguing several cases for the Lexington school system. SCM's relatively unique billing arrangements received high marks from those who deal with them. Because most general advice is covered under the retainer portion of the SCM fee agreement, school department personnel feel comfortable in contacting them to seek advice before problems arise. School personnel indicated that when they worked in other systems where counsel charged only on the basis of an hourly rate,they were discouraged from contacting legal counsel. In comparison to legal fees paid by other suburban school districts,the fees paid by the Lexington Public Schools appear to be quite reasonable. The Committee's analysis of the performance of SCM did reveal, however, several areas where it was believed the provision of legal services could be improved, particularly in matters that involve political sensitivity Sometimes the advice of SCM is perceived as too legalistic and overly adversarial. As general counsel to the entire school system, which includes administrators, teachers, staff, students and parents,there needs to be more of an awareness of and sensitivity to the constituents as a whole Periodically, there will be issues that will become explosive and lead to crises if the correct legal advice is not explained properly In this regard, it is especially important to become more sensitive to the parent perspective when legal advice is given on student issues in order that the advice can be communicated in a sensitive and reassuring manner SCM should be encouraged to develop an increased sense of the community and its values, and their attorneys should be encouraged to sit in on school committee meetings at regular intervals m order to get a better feeling for community concerns. In areas where public - 10 - Attachment, LSRC Minutes, 3/3/04 relations become important, the school system and their counsel should make use of the resources of town counsel or others from outside the firm. The Committee also recommends that SCM put increased emphasis on continuing to work with school department personnel in the development of clear policy guidelines, training of new school department administrators, and training of new School Committee members concerning their roles and responsibilities under governing law After reviewing the performance of SCM, the Committee considered the potential benefits of issuing an RFP or some other selection device to obtain legal services. It was suggested that an RFP might uncover a law firm that could provide better service at a more reasonable price, while at the same time alleviating any public distrust of current counsel resulting from advice given in recent highly publicized matters. The overwhelming majority of the Committee concluded that issuing an RFP at this time was not in the best interest of the school department and that SCM should continue to be retained to provide legal services.3 The Committee believes that it is unlikely that Lexington Public Schools will be able to find a service provider who could provide superior service at a more reasonable price than SCM. First, it is unclear that there are other firms that would be willing to do the work done by SCM at an equal or better level or quality, at rates that would be acceptable to the community Second, although areas for improvement have been identified,the relationship between the Lexington Public Schools and SCM has not gone significantly awry All the school personnel who addressed the Committee spoke favorably about the timeliness and quality of advice they had received from SCM, and SCM's representation appears to have been more than satisfactory when handling the more routine matters. Third, SCM has an impressive business model, including its representation of a large number of school districts and its fair retainer arrangement, which provides significant value for the Lexington Public Schools. Fourth, SCM has provided a broad range of services and there are not a lot of firms, if any, available that do all of this work. The Superintendent reported that school districts that use multiple counsel have not found this to be a favorable arrangement, and the Superintendent indicated that she would find this arrangement unworkable. In-house counsel would not appear to be efficient for a district the size of Lexington. Fifth, SCM has a long history of and experience with representing Lexington and its continued representation of the school district provides stability The Committee recommends that in lieu of an RFP at this time, SCM be advised of issues that need to be worked on. If those issues are not successfully remediated, an RFP could go forward at a later date Although almost all members of the Committee would not recommend an RFP at this time, the Committee does recommend regular re- evaluations of the legal services provided to the Lexington Public Schools that include the establishment of performance criteria and the assessment of performance. Any new contract should include a review of the expectations that need to be fulfilled. 3 One member of the Committee,Mr Brick, felt strongly that an RFP should be issued, for the following reasons: several matters in which SCM has been a key advisor have turned into major problems for the town and school communities; SCM has not been proactive in getting out in front of legal issues and this has been detrimental,the Pierce report was critical of SCM's performance;an RFP is low-cost and would alleviate public distrust;an RFP would address the perception that decisions in town government are made in a"back room;"and an RFP is the right process to determine the choice of a legal firm to represent the Lexington Public Schools. - 11 - Attachment, LSRC Minutes, 3/3/04 APPENDIX OF EXHIBITS Exhibit Description A Memorandum regarding the Use of Law Firm by the School Department B Suggested Charter for the Legal Services Review Committee C Memorandum entitled"Stoneman, Chandler & Miller Legal Services" D Legal Services Survey E Letter to SCM regarding issues the Review Committee wanted addressed - 12 -