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Home My WebLink About2003-05-01-LSRC-min NOTICE 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 a.m. Present were Norman Cohen, Tom Griffiths, Joanne Benton,Elaine Sterzm, 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 - 1 - 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. - 2 - H nt CG W O ---- O O O O .-'I . N 71- 71-NNNNNNN N Itor vga 1 I la la ,5n tia' S N "d JPI N Fj Qcl'A 'IcA o q Q N tab 0 N 0 o 0 7_, k.c, kv.ri n kr) r:) g 14 , 'r N r-. .—I rt 7t .—i — c a) c LI, z H ti w )° x 3 SI N ca g z H ti w ti x 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 o general areas where legal services are required, o what depth and breadth are required of a firm providing counsel, o whether all or some services should be taken in-house, o the performance of current counsel, o the cost efficiency and billing practices of current counsel, o the advantages and disadvantages of issuing an RFP or some other selection device concerning legal services, and o 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 firms, 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: o a Chairman appointed by the School Committee Chairman or designee, o a liaison member from the School Committee chosen by the School Committee Chairman or designee, o two liaison members from the School Administration chosen by the Superintendent, o five additional members from the community appointed by the School Committee Chairman or designee. Memorandum To Legal Service Committee From: Joanne Benton Date: 4.27 03 R E. Use of Law Firm by School Department The following is a list of legal services that we most often use: r ti. i Personnel Issues: L 6 FMLA ��/ lf- Progressive DisciplineCom'-`) Supervision &Evaluation j ,6,.„0.1,e1 � e-e' "44111 Professional Status GUt C Licensure Worker's Comp -2) Z Y./7 its r e, - /14, Unemployment Insurance _ Personnel Files C Student Issues IAA Suspension&Expulsion Hearings SPED e-_ - 504AA al"( Student Athletes 6-4 ttf JA General Lal Issues i 7r , Leg-al Due Process Rights6Lef tib U A-ex) Academic Freedom 141 , �a Privacy Rights `4 Abuse Harassment Open Meeting Laws School Construction p3-6 Access to Public Records Government Funding&Grants Labor Relations/Collective Bargaining Grievances Interest Based Bargaining 1 April28, 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- I`EAM 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 2 I' STONEMAN, CHANDLER & MILLER up 991-UGH STREET BOSTON, MASSACHUSETTS 02110 ALAN S.MILLER JOAN L. STEIN ROBERT CHANDLER SANDRA L. MOODY CAROL CHANDLER TELEPHONE (617) 542-6789o N , - KAY H.HODGE f. KATptINE't).CLARK ROBERT G. FRASER FACSIMILE (617) 556-8989 iATH RINE . (1,r7 j V) BROUGH MACON P. MAGEE r . .STONE REBECCA L.BRYANT GEOFFREY R.BOK MIRIA. X REEDMAN NANCY N NEVILS APii 2 5 "EL November 5, 2002 1 I FRINTENVNT'S OFFICE Billed through 10/31/02 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 BOSTON, MASSACHUSETTS 02110 ALAN S.MILLER JOAN L.STEIN ROBERT CHANDLER SANDRA L.MOODY CAROL CHANDLER TELEPHONE (617) 542-6789 JOHN M.SIMON KAY H.HODGE KATHERINE D.CLARK ROBERT G.FRASER FACSIMILE (617) 556-8989 GINA M.YARBROUGH MACON P.MAGEE KARINE C.M.STONE REBECCA L.BRYANT GEOFFREY R.BOK MIRIAM K.FREEDMAN NANCY N. NEVILS OF COUNSEL October 15, 2002 Billed through September 30, 2002 Bill Number LEMNG 00059 17527 Lexington Public Schools 1557 Massachusetts Avenue t,rd Lexington,MA 02173 ViVitit U1(v‘j Attention. Ms. Susan Bottan BSEA#01-0339 Balance forward from previous invoice dated 09/24/2002 $1,247 1 PROFESSIONAL SERVICES RENDERED Hours Rate Amouni 0-V' 09/20/02 JLS Telephone discussion with H. Gold and review of fax re: final 0 75 220 /hr $165 0 settlement 09/27/02 JLS review of final draft of settlement and telephone discussion 0.50 220 /hr $110 Oi with L. Fouhy re: same Total fees for this matter $275 0( DISBURSEMENTS FACSIMILE $7 OC Total disbursements for this matter $7 00 BILLING SUMMARY Total Fees $275 00 Total Disbursements )J° $7 00 ? 2. POO \\\ TOTAL CHARGES FOR THIS BILL $28200 Balance Forward $1,247 16 TOTAL BALANCE NOW DUE $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 Bartenstem, 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 umon and non-union employees • Professional status (tenure issues) • Terminations and suspensions • Licensure issues (certification) • Compliance with state and federal statutes and regulations o FMLA o Workers' compensation o Unemployment insurance o Fair labor and wage laws • Generic personnel and labor relations issues (with collective bargaining units) - 1 - 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" - 2 - 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 m 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 - 3 - 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 m the$40-50,000 range, and inquired whether this might be a ballpark amount to expect if nothmg 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 m 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 m 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, mcludmg 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 meetmg. In the course of preparmg 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. - 4- Sl/41/a3 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, I 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, I 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