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Legal Brief                                                         Page 9

 

‘Call My Lawyer!’ The Need

for Private Counsel

 

BY V. WAYNE YOUNGWayne Young

During a board of education meeting, a superintendent surprised her board members by asking for approval of a $2,500 retainer to secure the services of a local law firm for her on an as-needed basis. “I need someone who can advise me,” the superintendent said. “The board attorney cannot advise me if maybe the board and I don’t agree on an issue … because they’re his client, and it creates an awkward position.”

After the board refused her request, the superintendent retained counsel at her own cost.

Complex Relations
As an advocate for superintendents (both literally and philosophically) for more than 30 years, I appreciate the dilemma faced by this superintendent. I have seen firsthand the gnawing discomfort superintendents experience when facing a complex and uncertain legal matter. Competent legal counsel in these situations is essential.

In most cases, relying on the board attorney is both appropriate and advisable. The board is the actual client of the attorney, and the attorney’s ethical and legal obligations are always to represent the interests of the client zealously. The superintendent is the agent of the board, a legal term meaning he or she can carry out the board’s directives and act on the board’s behalf in some matters. As the client’s agent, the superintendent is permitted to seek advice from the board attorney, and it is equally appropriate for the attorney to advise the superintendent.

But even under the best of circumstances, the three-pronged relationship among school board, superintendent and board attorney can be complicated. What happens when the interests of the board and those of the superintendent diverge?

The most common manifestations occur in the employment relationship. Whether negotiating an employment contract or navigating a rift between the superintendent and board, private counsel other than the board attorney would benefit the superintendent.

Even when no employment issue arises, a superintendent may still face a circumstance where seeking advice from the board attorney might be unwise or awkward. It also might be unethical for the attorney to continue to advise the superintendent. Unfortunately, some board attorneys do not practice education law to the degree necessary to offer sound advice on difficult issues.

It’s also possible the superintendent may have a concern about the board overstepping its bounds or directing the superintendent to do something he or she feels is inappropriate. It need not even be a dispute or controversy — it could be as simple as a “second opinion,” much like one would consult with another physician when facing a serious health issue.

Anticipate Need
Ideally, a school board and the superintendent are in harmony on mission and method with mutual understanding of roles as they carry out their duties with good faith and good communication. In this setting, a superintendent’s need for personal legal services might be rare. But not all circumstances are ideal.

Many state administrators associations provide legal counsel to their members. This resource can be extremely valuable but may not be accessible or extensive enough to assist the superintendent in every circumstance. Association counsel often help with advice and research or even as a sympathetic ear, but time constraints or other restrictions may not allow direct legal representation in court or in front of administrative bodies.

Any superintendent would be wise to address up front with the board the issue of personal legal counsel. A pro-active approach can prevent future misunderstanding or skepticism when the superintendent may feel the need to consult with legal counsel.

Discussing the issue in advance, and including a nominal amount in the budget to allow the superintendent to access counsel can provide peace of mind for board members and the superintendent. Certainly, it is preferable to broaching the idea at a board meeting without prior notice.

The solution could be as simple as adding a provision to existing board policy or including a paragraph in the superintendent’s contract.

 

Wayne Young is executive director of and general counsel for the Kentucky Association of School Administrators. His e-mail is wayne@kasa.org.

 

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