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HomeMy WebLinkAbout2003-09-15-LSRC-min0-11k 7,ZU. 33 Forest Street #309' Lexington, MA 02421 September 8, 2003 Robert G. Fraser, Esq. Stoneman Chandler & Miller 99 High Street Boston, MA 02110 Dear Bob: As you know, the Lexington School Committee has established a School Legal Services Review Committee. At this stage of the Committee's review and analysis of the school system's recent legal activities, the members believe that it would be worthwhile to meet with you and several of your colleagues. It is my understanding that you have indicated to Joanne Benton that you, Rebecca Bryant and Joan Stein would be available to attend the next meeting of the Committee on Monday, September 15. The meeting is scheduled for 7:OOP.M. and we request that you meet with us at 7:30 P.M. in the School Administration Building. In order to guide the discussion, members of the Committee thought it would be helpful if you had the following questions in advance. (I understand the substance of the questions have previously been shared with you.) As legal counsel for the school department, how do you view your firm's role with regard to the school administration and school committee? Over the long history of working with the Lexington Public Schools, in what areas do you think the firm has performed well? Are there any areas where you believe improvements could be made? If yes, how could your firm improve in these areas? What could the school department do to help the firm better fulfill its role? 2. Your firm works with other school departments and school districts where the legal services are handled by more than one firm. How does such an arrangement work when tasks are separated and what legal services does your firm provide? How is communication handled between the client and the law firms involved? Who advises the school committee in these municipalities that have multiple counsel? 3. Questions have been raised about the handling of the Fiske School matter. With the benefit of hindsight, how would your firm have handled it differently? 4. There is a perception among some people in Lexington that the legal advice rendered by your firm to the school department has been sound legally, but may not be as sensitive to the emotional needs and to the political climate in the community. (For example the Fiske School matter referred to in Question 3 highlighted this concern.) What measures could be taken to change the perception? Since the Committee is made up of nine members, five of whom are lawyers, I am sure that there will be other questions. We look forward to meeting with you. Norman P. Cohen Reminder School Legal Services Review Committee Meeting will be held on Monday, September 15, 2003 at 7:00 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 September 15, 2003 The meeting commenced at 7:00 p.m. Present were Norman Cohen, Tom Griffiths, Joanne Benton, Elaine Sterzin, John Bartenstein, Howard Brick, Marsha Baker, Alice Oliff and Bill Dailey. Draft minutes were distributed of the meetings held on May 19, June 16 and July 7. Mr. Cohen requested that the committee members review these drafts before the next meeting and note any corrections at that time. Mr. Cohen then distributed a letter that he had sent to Robert Fraser on September 8, 2003 setting forth the questions that the committee wished to have addressed by Stoneman, Chandler & Miller ( "SC &M ") concerning its legal representation of the Lexington Public Schools. There was a brief discussion of the letter and of the protocol for the upcoming meeting with the SC &M team. At approximately 7:20 p.m., Robert Fraser, Rebecca Bryant and Joan Stein of SC &M were invited into the meeting and introductions were made. Mr. Cohen thanked the SC &M lawyers for coming and explained that the committee would like them to address the questions contained in his September 8 letter, but that the discussion could be general and did not necessarily have to follow the order of those questions. Mr. Fraser said that he would lead off the presentation; that he would then give Ms. Bryant and Ms. Stein an opportunity to supplement his remarks; and, finally, all of them would try to answer any questions the committee might have. Remarks by Robert Fraser Mr. Fraser began by saying that he appreciated the opportunity to meet with the committee and wanted to make two general statements. First, he noted that SC &M has been legal counsel to the Lexington Public Schools for approximately thirty -five years, dating back to the late 1960's. SC &M has more seniority than most of the administration, staff and school committee members, and it is thus difficult to give the committee the full history of what the firm has done over those years. Second, he observed that because of the way SC &M practices law, much of the benefit provided to the school is from trouble that it did not get into. There have been many potential missteps where SC &M's advice and guidance avoided issues that could have been a problem, which means that SC &M in essence has the burden of proving a negative. Mr. Fraser said that he would attempt to illustrate what they have accomplished with a few high points. In the 1970's, Alan Miller handled a series of arbitrations that tested the limits of the collective bargaining process. In almost all circumstances, Lexington prevailed in -1- those arbitrations. There was a "remarkable series of successes." One of the important things SC &M offers, compared to the premier litigation firms in Boston, is that it started from a base of labor relations in the private sector. Many of the firm's private clients were on school committees and when collective bargaining came to the public sector, they turned to SC &M to represent them. Thus, SC &M has a long record of working with "lighthouse" school districts. When MCAS scores first came out, SC &M represented 8 of the 12 highest scoring schools. He believes they have contributed to this success. They have worked with the administration and school committees to preserve managerial rights that are essential to the day -to -day management of a school district. When Fraser joined SC &M in 1985, he worked to develop other areas of school law, especially special education. During the last twenty years, they have added other areas, including employment discrimination, student rights, parent rights, and others. He believes they have the greatest concentration of school representation in the Commonwealth of Massachusetts. Virtually all of SC &M's lawyers who work with public school districts have some prior involvement with education. These attorneys concentrate exclusively on education law for the firms' 50 school district clients, which enables them to provide immediate advice and guidance. Mr. Fraser said that in his May 5, 2003 letter to Superintendent Benton, a copy of which was previously circulated to the committee, he had provided some highlights of the firm's accomplishments for the Lexington Public Schools. He amplified on these matters, including: the Dupre arbitration (removal of a teacher for inefficiency and incompetence under the Education Reform Act of the early 1990's, a landmark decision which has repeatedly been cited in subsequent cases); the Goodrich case (removal of a teacher under the old statutory scheme); the Waring case (removal of a high school principal); the negotiation of arrangements for the departure of Superintendents Geiger and Ruane; and Rebecca Bryant's recent work the policy subcommittee develop school policies. Mr. Fraser said he would not dwell on the Fiske matter except to say that their experience in that case was more than thoroughly investigated by Attorney Pierce. While he might take issue with some of the factual development in the Pierce report, and in particular with its analysis and emphasis, one thing the report said without qualification was that SC &M gave sound legal advice to the town and school administration. They had to walk a fine line. They had to ensure the safety of children in the public school setting. At the same time, they also had to deal with the employee involved in a manner consistent with statutory requirements, collective bargaining agreement requirements and constitutional considerations in an environment heavily impacted by outside agencies with respective agendas with narrow dimensions as opposed to the broader issues. It was a time - consuming, emotionally laden case. Overall, Mr.Fraser said, he feels the school committee, the district and the administration did a good job of handling a difficult, controversial situation. -2- Mr. Fraser said that he intended to address the committee's question about areas where there could be improvement. First, however, he wanted Joan Stein (who has focused on special education and student rights) and Rebecca Bryant (who has advised on policy development and represented the school department in collective bargaining negotiations with the custodial union) to comment on their experiences representing the Lexington Public Schools. Remarks by Rebecca Bryant Ms. Bryant began by commenting on the impact of the legislature's passage in 1993 of the Education Reform Act. This Act made a number of changes to the relationships between the superintendent, the school committee and school employees. Among other things, it empowered the principal to discipline students for three offenses of particular concern: the assault of school personnel, the possession of weapons, and the possession of drugs on school property. It also created a right to suspend a student for a felony committed outside of school when the principal determines it has an impact on the school house. Following the passage of this act, there was a flurry of activity by school departments to develop policies. Previously, long -term discipline of students had been within the exclusive purview of the school committee. The Act changed that and gave the responsibility to the school principal. Bryant worked on a high school handbook that set up a disciplinary code. The goal was to make the code enforceable and easy to apply for the principal. Subsequently, between 1993 and 1995, she worked with the school department on 7 -9 cases of weapon and drug possession in the Lexington public schools. These were serious felonies, and none went beyond the district level. Setting up a process that was fair and reasonable made it possible to work with the parents. The policies are still working well. Most recently, Ms. Bryant said, she has been involved in collective bargaining with the custodial union. She has been able to resolve a number of problems, and she feels that SC &M has served the district well in this area. Remarks by Joan Stein Ms. Stein said that since she joined SC &M in 1995, most of her work for the Lexington Public Schools has involved special education matters. When disputes arise over IEP's, she spends a good deal of time reviewing the files and provides the school system with an early analysis of the issues. She helps to assess the strengths and weaknesses of cases, with particular sensitivity to procedural issues, and advises on settlements. Ms. Stein said that one particularly noteworthy and challenging development in the special education field has been a new emphasis on student discipline. More and more parents are seeking special education evaluations where disciplinary issues have arisen, as there are special protections available in this area. Ms. Stein said that she has -3- worked on a number of these matters with the high school principal, and all of them have been successfully resolved at the school level. She also assisted Special Education Administrator Denise Rochlin last summer in the development of a handbook on special education. The result was an impressive manual that left no stone unturned. Ms. Stein said that she believes that SC &M has provided good representation to the Lexington Public Schools in special education matters. The lawyers in the firm who concentrate on special education cases communicate frequently with each other, and she feels that they provide a unique efficiency to the school districts they represent. Further Remarks by Robert Fraser In closing, Mr. Fraser said that he wanted to comment briefly on the firm's limited role in the collective bargaining process. After the teacher strike that occurred in the 1980's, the school committee made a strategic move to adopt "collaborative" or "inter- space" bargaining. The Massachusetts Teachers Association pushed this model in the late 1980's, and Lexington has employed it ever since, as have most of other towns in the area. As a result, SC &M is much more on the periphery of the collective bargaining than had previously been the case. Mr. Fraser commented that this model has been shown to result in less favorable economics for school systems and an erosion of managerial discretion, as compared with the traditional model. However, although SC &M has been consulted from time to time in the collective bargaining process, its role has been minimal. Mr. Fraser emphasized again that a unique factor SC &M brings to bear is the prior experience that many of its lawyers have in the field of education. This, he feels, provides a "higher dimension" to the advice and representation they can give to school districts. Responding to the question posed in Mr. Cohen's letter about SC &M's experience working with school clients that utilize other law firms, Mr. Fraser said that this arrangement can work and work well. However, although such an arrangement has not been "visibly harmful to the client" in most of the situations he has experienced, he believes that the segregation of the interaction between legal counsel on certain topics tends to result in greater cost and a loss of expertise. He also expressed his opinion that a school system is best served by having its own, independent counsel, rather than relying on town counsel, as the interests of a municipality and its school system are not always in harmony. Discussion with the Committee Following these remarks, members of the committee posed a number of questions to Mr. Fraser, Ms. Bryant and Ms. Stein, and there was extensive dialog in response to these questions.