HomeMy WebLinkAbout2003-05-01-LSRC-minNOTICE
The first meeting of the
School Legal Services Review Committee
will be held on
Thursday, May 1, 2003
at 7:30 a. m.
at the Administration Building
1557 Massachusetts Avenue
Lexington, MA 02420
(Please RSVP to Ginny Schwamb at
781 - 861 -2550 if you are unable to attend.)
Minutes
Legal Services Review Committee
May 1, 2003
The meeting commenced at 7:30 am. Present were Norman Cohen, Tom
Griffiths, Joanne Benton, Elaine Sterzin, Marsha Baker, John Bartenstein, Howard Brick
and Alice Oliff.
The members of the committee introduced themselves. Mr. Cohen explained the
purpose of the committee, provided background information on the school system's legal
representation by the firm of Stoneman, Chandler & Miller ( "SC &M" ), and distributed
copies of the following documents: the School Committee's Suggested Charter for the
Legal Services Review Committee (draft of 3/31/03); memo from Supt. Benton on "Use
of Law Firm by School Department (4/27/03); and sample legal bills. '
Supt. Benton reviewed the school system's current arrangements with SC &M.
The school system pays a fixed annual "retainer" for all services that do not involve a
third -party counsel. Additional fees are charged, at SC &M's usual billing rates, for all
matters that involve a third -party counsel. The retention arrangements are spelled out in
a three -year contract between the school system and SC &M that expired in July 2002.
The contract has not been renewed but SC &M has agreed to continue to provide services
to the school system on the same terms while the committee review is pending. Supt.
Benton responded to questions about the engagement and will provide additional
information at the next meeting.
Mr. Griffiths discussed the School Committee's goals for this committee and the
anticipated time -frame for completion of its work. The School Committee hopes that this
committee will be able to complete its evaluation of the school system's current
representation and present a report on alternative possibilities by the early fall of 2003.
Such alternatives might include continuation of the current arrangements with SC &M,
the engagement of a different firm to perform all of the school system's legal work, the
retention of multiple firms with specialized expertise, or the hiring of in-house counsel.
If a determination is made to issue an RFP, the School Committee expects that this
committee would assist in preparing the RFP and interviewing, and hopes that the
selection process would be completed by the end of the calendar year.
Mr. Cohen said that it would be important to speak with those personnel in the
school system who work directly with counsel to get a better understanding of the
system's legal needs. Supt. Benton will arrange for Special Education Director Denise
Rochlin and Human Resources Director Kelly McCausland to attend the next meeting
and give a presentation on their use of counsel.
Ms. Oliff asked Supt. Benton if she could provide a percentage breakdown of the
time spent by SC &M on the various categories of legal matters listed in her 4/27/03
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memorandum. Supt. Benton said she would provide this information at the next meeting,
and that by far the largest use of legal counsel is for special education matters.
Mr. Bartenstein asked if it might be necessary, as part of this review, for the
committee to consider privileged information and, if so, what steps might be necessary to
protect the privilege. Mr. Griffiths pointed out that the School Committee's charge
requests the committee to review not only the cost - effectiveness but also the performance
of counsel. It was agreed that should questions of privilege arise it might be necessary to
meet in executive session. Ms. Oliff disclosed that she is personally acquainted with Bob
Fraser of SC &M. She does not believe that this disqualifies her from serving on the
committee but advised the committee that she may need to recuse herself in matters
involving Mr. Fraser individually.
Ms. Oliff suggested that it might be helpful to examine arrangements for legal
representation in other school districts, which could serve as models. There was some
discussion of the existing arrangements for representation in Weston, Wayland and
Lowell.
Mr. Brick suggested the following possible structure for the committee's work:
(1) analyze and understand the school system's current legal needs; (2) evaluate
alternative possibilities for legal representation; and (3) evaluate the performance of
counsel.
The meeting adjourned at approximately 8:45 a.m. The next meeting was
scheduled for Monday, May 19, 2003 at 7:00 p.m.
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Suggested Charter for a School - Committee - Appointed School Legal
Services Review Committee (Draft 3/31/2003)
Review and Analysis: The Lexington School Committee's School Legal Services Review
Committee will review and analyze the Lexington Public School System's recent legal activities
in order to suggest an appropriate strategy for procuring legal services to handle the System's
legal needs. The School Legal Services Review Committee should consider
• general areas where legal services are required,
• what depth and breadth are required of a firm providing counsel,
• whether all or some services should be taken in- house,
• the performance of current counsel,
• the cost efficiency and billing practices of current counsel,
• the advantages and disadvantages of issuing an RFP or some other selection device
concerning legal services, and
• the relationship of counsel to School Committee and Administration and any possible steps
for improvement.
The School Committee will provide a statement of its needs to this Review Committee and will
request that the School Administration provide a statement of its needs. In addition both the
School Committee and Administration will be available to provide any clarification the Review
Committee requires.
Development of RFP or Other Selection Device: If the School Legal Services Review
Committee feels it is in the best interest of the System, it shall notify the School Committee, and
if the School Committee agrees, develop a tool to solicit requests for proposals or other
information concerning legal services from legal service firms. In that event, the School Legal
Services Review Committee shall review the responses, interview selected qualifying ferns, and
report its findings to the Lexington School Committee with recommended steps for action.
Schedule and Reports of the Committee: The School Committee liaison member will report as
needed to the School Committee concerning School Legal Services Review Committee progress,
including milestones and the prospective schedule on which the School Legal Services Review
Committee expects to accomplish its tasks.
The School Legal Services Review Committee will issue a final written report to the School
Committee containing its recommendations on a schedule mutually agreeable to the School
Committee and the School Legal Services Review Committee.
Composition of the School Legal Services Review Committee
The proposed committee will have nine members:
• a Chairman appointed by the School Committee Chairman or designee,
• a liaison member from the School Committee chosen by the School Committee Chairman or
designee,
• two liaison members from the School Administration chosen by the Superintendent,
• five additional members from the community appointed by the School Committee Chairman
or designee.
Memorandum
To: L.egal Service Committee
From: Joanne Benton
Date: 4.27.03
RE : Use of Law Firm by School Department
The following is a list of legal services that we most often use:
Personnel Issues:
Progressive Discipline
Supervision & Evaluation
Professional Status
Licensure
Worker's Comp:
Unemployment Insurance
Personnel Files
Student Issues
Suspension & Expulsion Hearings
SPED
504
Student Athletes
General Legal Issues
Due Process Rights
Academic Freedom
Privacy Rights
Abuse
Harassment
Open Meeting Laws
School Construction
Access to Public Records
Government Funding & Grants
Labor Relations/ Collective Bargaining
Grievances
Interest Based Bargaining
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April 28, 2003
Positional Bargaining
Salary Schedules
Educational/ training Services
Training for Administrators in a variety of areas
Business Office
Residency Issues
Student Transportation Issues
Public Records Information
Procurement Issues (We typically contact Palmer & Dodge for this)
Other:
CORI Issues
Terminations
Health insurance issues
Review and drafting of forms and documents
Immigration issues
SPED - TEAM meetings, mediation and hearings
Discrimination issues
Investigations
DOE complaints
OCR complaints
Policy development and drafting
Contract issues re special education placements
In- service training and workshops
Emails and legal updates
Contract interpretation questions
Bargaining with custodians
STONEMAN, CHANDLER & MILLER LLP
ALAN S. MILLER
ROBERT CHANDLER
CAROL CHANDLER
KAY H. HODGE
ROBERT G. FRASER
MACON P. MAGEE
REBECCA L. BRYANT
GEOFFREY R.BOK
NANCY N. NEVILS
99 HIGH STREET
BOSTON, MASSACHUSETTS 02110
TELEPHONE (617) 542 -6789
FACSIMILE (617) 556 -8989
November 5, 2002
Billed through 10/31/02
SI_ "F RINTENDENT'S OFFICE
Invoice Number LEXING 09000 17605
Lexington Public Schools
1557 Massachusetts Avenue
Lexington, MA 02173
Attn: Ms. Susan Bottan
RETAINER
Semi - annual retainer for professional services rendered for the period July 1, 2002
to December 31, 2002.
Total fees for this matter $ 27,000.00
Total disbursements for this matter $ 2,024.19
TOTAL BALANCE NOW DUE $ 29,024.19
JOAN L. STEIN
SANDRA L. MOODY
K TH RINE�. CLARK
'NA BROUGH
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SI_ "F RINTENDENT'S OFFICE
Invoice Number LEXING 09000 17605
Lexington Public Schools
1557 Massachusetts Avenue
Lexington, MA 02173
Attn: Ms. Susan Bottan
RETAINER
Semi - annual retainer for professional services rendered for the period July 1, 2002
to December 31, 2002.
Total fees for this matter $ 27,000.00
Total disbursements for this matter $ 2,024.19
TOTAL BALANCE NOW DUE $ 29,024.19
STONEMAN, CHANDLER & MILLER LLP
99 HIGH STREET
ALAN S. MILLER
BOSTON MASSACHUSETTS 02110
ROBERT CHANDLER
JOAN L. STEIN
CAROL CHANDLER
TELEPHONE (617) 542 -6789
SANDRA L. MOODY
KAY H. HODGE
JOHN M. SIMON
ROBERT G. FRASER
KATHERINE D. CLARK
MACON P. MAGEE
FACSIMILE (617) 556 -8989
GINA M. YARBROUGH
REBECCA L. BRYANT
KARINE C. M. STONE
GEOFFREY R. BOK
_
NANCY N. NEVILS
MIRIAM K. FREEDMAN
OF COUNSEL
October 15, 2002
Billed through September 30, 2002
Bill Number LEXING 00059 17527
Lexington Public Schools
1557 Massachusetts Avenue
Lexington, MA 02173
Attention: Ms. Susan Bottan 1'
BSEA #01 -0339
Balance forward from previous invoice dated 09/24/2002
PROFESSIONAL SERVICES RENDERED
101
09/20/02 JLS Telephone discussion with H. Gold and review of fax re: fmal
settlement �h
09/27/02 JLS review of final dfaft of settlement and telephone discussion
with L. Fouhy re: same
Total fees for this matter
DISBURSEMENTS
FACSIMILE
Total disbursements for this matter
BILLING SLTt AMy
Total Fees
Total Disbursements
TOTAL CHARGES FOR THIS BILL
Balance Forward
TOTAL BALANCE NOW DUE
Hours Rate
0.75 220 A
$7.00
$7.00
0.50 220 /hr $110.0(
$275.0(
$1,247.1
Amoun,
$165.0
$275.00
$7.00
$282.00
$1,247.16
$1,529.16
Minutes
Legal Services Review Committee
May 19, 2003
The meeting commenced at 7:00 p.m. Present were Norman Cohen, Tom
Griffiths, Joanne Benton, Elaine Sterzin, Marsha Baker, John Bartenstein, Howard Brick,
Alice Oliff and Bill Dailey.
The minutes of the May 1, 2003 meeting were approved without change.
Supt. Benton distributed copies of a memorandum dated May 12, 2003 entitled
"Stoneman, Chandler & Miller Legal Services," which attached the following documents:
• 5/5/03 letter from Robert Fraser with a brief history of his firm's representation of
the Lexington Public Schools and an estimated distribution of legal services
provided from 2000 -2003;
• Letter agreement with SC &M for services for the period 7/1/98 to 6/30/01;
• Proposed letter agreement with SC &M (unsigned) for services for the period
7/1/01 to 6/30/04; and
• Table of fees paid to SC &M for each of the years FY 1998 through FY 2003
Mr. Griffiths distributed copies of a short memorandum from Scott Burson, former Chair
of the Lexington School Committee, describing the School Committee's use of legal
services.
Kelly McCausland, Director of Human Resources, then made a presentation to the
Committee about her department's use of legal services. She said that the principal
issues for which legal services are required are:
• Progressive discipline
• Supervision and evaluation of union and non -union employees
• Professional status (tenure issues)
• Terminations and suspensions
• Licensure issues (certification)
• Compliance with state and federal statutes and regulations
o FMLA
• Workers' compensation
• Unemployment insurance
• Fair labor and wage laws
• Generic personnel and labor relations issues ( with collective bargaining units)
BE
Ms. McCausland provided a snapshot of her contacts with legal counsel over the
past three weeks and offered some examples of the ways in which her department has
used legal counsel during the past year, including the negotiation of severance
agreements with two non - teacher employees and impact bargaining with the Lexington
Education Association (LEA) over implementation of new Criminal Offender Record
Information (CORI) requirements.
Ms. McCausland said that her initial point of contact with SC &M has generally
been Bob Fraser. She also works with Rebecca Bryant, who has helped with the
negotiation of custodian contracts, and Sandra Moody, who advises on residency
questions. She uses counsel primarily for arbitrations, the negotiation of settlement
agreements, and other matters that require close attention to legal detail. She likes the
SC &M retainer arrangement because she feels that she can pick up the phone and ask
questions whenever she needs to without worrying about incurring extra charges. She
feels that this freedom of access enables her to "get it right the first time."
Before joining the Lexington Public Schools, Ms. McCausland said, she worked
in the Leominster Public Schools, a system approximately the same size as Lexington but
with fewer teachers. Counsel for the Leominster Public Schools was a solo practitioner
who billed by the hour and did not offer a retainer arrangement. Ms. McCausland found
that the hourly billing arrangement discouraged her from contacting counsel. She
believes that SC &M has greater breadth of knowledge and experience, especially in labor
relations matters, and keeps her better informed about case law and arbitration outcomes.
She also finds SC &M to be more responsive. SC &M lawyers have provided her with
home numbers and cell phone numbers, and get back to her more quickly in response to
phone calls. In general, she believes that Lexington's school counsel is "far superior" to
Leominster's counsel at a lower expense.
SC &M provides support, as needed, for the school system's collective bargaining
negotiations with teachers and other employees. The School Committee in recent years
has taken primary responsibility for collective bargaining negotiations with teachers. The
School Committee also has a representative (most recently Tony Close) that sits in on the
collective bargaining negotiations with all other units. In the upcoming negotiations with
teachers, SC &M (primarily Bob Fraser) will be at the table to provide advice, a task that
takes hours of time but is covered by the retainer arrangement. Supt. Benton and Ms.
McCausland have taken responsibility for negotiations with assistant principals without
SC &M's presence. Bob Fraser has assisted in collective bargaining negotiations with
tutors.
Joan Stein of SC &M has provided Ms. McCausland with assistance in student
expulsion hearings. Ms. Stein attended the first two hearings, and then told Ms.
McCausland that she was "ready to go" on her own. Ms. McCausland felt that this was
appropriate under the circumstances, and appreciated being given the "opportunity to
grow."
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Supt. Benton explained that Bob Fraser had a heart attack last year and has had to
cut back on his work hours. A younger attorney named Scott Merrill, originally from
Rhode Island, has been learning the ropes and is beginning to assume more responsibility
in labor matters.
Mr. Bartenstein inquired about the alternative of using in -house counsel. Ms.
McCausland thought that an in -house counsel arrangement could work if the person hired
was especially proficient in special education and labor relations law. The need for both
these services is "spotty," however, and she expressed concern that in a school district the
size of Lexington there might be work flow issues, with too little to do on some days and
too much on others.
After completing her presentation and answering questions, Ms. McCausland left
the meeting. The Committee then discussed the documents that had been provided by
Supt. Benton concerning SC &M's contractual arrangements and billing history.
Mr. Griffiths pointed out that, in reviewing the billing history, a distinction must
be made between legal services provided to the school system and to the School
Committee. Supt. Benton explained that the costs in FY 2002 were extremely high due
to the exceptional circumstances experienced that year in connection with the Fiske
School matter. Ordinarily, SC &M's work is delivered to the school administration for all
matters except negotiations with the Superintendent. Much of SC &M's work in FY 2002
was directed to the School Committee.
Mr. Brick inquired about the continued high costs in FY 2003. Supt. Benton
explained that they are largely attributable to "overhang" from the activities of the
previous year.
Supt. Benton explained the school system's current contractual arrangements with
SC &M and the circumstances surrounding the unsigned engagement letter dated
February 21, 2002 letter. She and Susan Bottan met with Mr. Fraser in the summer of
2001 to discuss contract renewal and went over projected increases in the retainer fee.
They concluded that increases in the retainer fee proposed by SC &M were justified in
view of the substantial amount of work that is done under the retainer, and agreed that
without the retainer arrangement legal costs would likely be higher. Because of a
transition in the chairmanship of the School Committee, the February 21, 2002 letter was
never signed; the school system, however, has honored the proposed fee schedule
contained in that letter.
Mr. Bartenstein inquired about SC &M's current hourly rates for work not covered
by the retainer. Supt. Benton said she believes that Mr. Fraser's current billing rate is
$220 per hour. She will ask Susan Bottan to pull the records showing individual lawyers'
billing rates.
Supt. Benton said that the school system had never had any disputes with SC &M
over what is covered under their retainer agreement or the amount of their bills. Mr.
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Dailey commented that SC &M's billing rates are pretty reasonable by downtown Boston
standards.
Ms. Oliff noted that the fees charged for services outside the retainer for all years
except FY 2002 and FY 2003 were in the $40- 50,000 range, and inquired whether this
might be a ballpark amount to expect if nothing extraordinary comes up. Supt. Benton
thought this was a reasonable estimate, particularly since SC &M handled a fairly
substantial amount of litigation in these earlier years.
Mr. Brick inquired whether any formal attempt had been made to evaluate
SC &M's expertise and competence, particularly its performance in litigation. Supt.
Benton said that to the best of her knowledge this had not been done, and she does not
believe there are any such records in the school system's files.
Mr. Cohen pointed out that Palmer & Dodge had been called in for litigation in a
number of matters that involved both school and town, including the Yeo cases and the
"Respecting Differences" litigation. Supt. Benton said that she works with the Town
Manager to coordinate the use of town counsel, and looks for opportunities to share the
benefit of Palmer & Dodge's work product such as a recent protocol on employees'
internet usage. Supt. Benton said that SC &M has been good about acknowledging the
limitations of its expertise and deferring to Palmer & Dodge on matters that Palmer &
Dodge can best handle.
Supt. Benton said that she is working on a survey of the counsel used by other,
similar school districts and their legal costs. She hopes to present this information at the
next meeting. In the course of preparing this survey, she learned that the Winchester
Public Schools recently hired SC &M as a replacement for Murphy, Hesse, Toomey &
Lehane, which they felt had not produced satisfactory results in teacher employment
litigation.
The meeting adjourned at approximately 9:00 p.m. The next meeting was
scheduled for Monday, June 16, 2003 at 7:00 p.m. Presentations are expected at the next
meeting by Susan Bottan, Director of Business and Finance, and Denise Rochlin,
Director of Special Education.
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I would say the bulk of LPS use of counsel is through and under the direction of the Superintendent, and you have Joanne's summary
of that. There are some limited special cases, and I will try to enumerate them here:
1. When the School Committee is dealing with the Superintendent as her supervisor and employer, LPS legal counsel works directly
through the chair of the school committee. Examples are preparations of an employment contract for the Superintendent, negotiating with
the Superintendent, and reviewing issues specifically related to disciplining the Superintendent or requirements of the Superintendent's
contract.
2. If a conflict arises between the interests of the school system and the superintendent, LPS legal counsel deals directly with the chair of
the school committee, and advises the committee. This is, 1 think, a rare occurrence, but it has occurred.
Most other contacts, even on areas such as policy drafting, are done collaboratively with the Superintendent. On a practical level, a
school committee member might contact Legal Counsel directly, but ordinarily this would be with the knowledge and assent of the
Superintendent. The Superintendent has the responsibility for managing legal costs, and this responsibility would be difficult to meet if
committee members exercised unfettered access to counsel.
If the committee is so inclined, 1 think it would be helpful to see whether it can generate any ideas on controlling costs in the event
that the Superintendent requires indemnification for certain legal expenses, as required by her contract. Again, I would assume this to be
a rare event, but we have experienced it, and I confess I could think of nothing other than jawboning to control this expense.
Also, there are instances, again rare, where the chair might question the propriety of legal counsel offering advice on a particular
issue, or the qualifications of regular legal counsel to do so. Also in rare circumstances, a school issue may arise with such profound
ramifications, that it seems prudent to notify Town Counsel (Palmer & Dodge). In these instances, the chair acts directly by contacting
Palmer & Dodge.
Hope this helps. Scott