The Superintendent and School Board Attorney: Selecting, Contracting and Working

Kenneth T. Murray, J.D., Ph.D.
Barbara A. Murray, Ph.D.

 Ken-Murray.jpg

 Kenneth Murray

 Barb-Murray.jpg

 Barbara Murray

While some larger school districts employ legal counsel in-house, most school districts in the United States contract with an outside private-practice attorney on a retainer basis. Unless a school district superintendent remains in the position for several years it is unlikely he or she will be involved in selecting a new school board attorney, sometimes known as the school district general counsel. Once an attorney is appointed to the post they will strive to remain for as long as possible because it is a good job as legal work goes. The work generally is not demanding and they are free to take on other clients but, more importantly, school districts pay their bills – not a small consideration for private-practice lawyers.

A common misconception is that hiring an in-house general counsel would be less expensive than a retainer-based arrangement with an outside attorney. To be certain, some larger school districts do, in fact, find the in-house general counsel to be a cost saving plan but the superintendent must look past the mere cost of the in-house salary versus the total cost of the outside arrangement. There is a great additional expense when one considers the cost of the support personnel to your in-house general counsel, benefits, office expense, travel, memberships and the ubiquitous litigation expenses which will be delegated to litigation attorneys no matter which arrangement you have for school board general counsel.

If it becomes necessary to select a new school district general counsel, the school board most likely will look to the superintendent for guidance and recommendations for the selection. They do so even though the school district general counsel represents the school board, not the superintendent. This is a tidbit of knowledge that the superintendent should keep in mind if their interests at some point do not coincide with those of the school board. The school board attorney, most definitely knows whom they represent but also realizes that absent conflicting interests the superintendent is the voice of, and liaison to, the school board.

Depending on the circumstances of the school district, its location, clientele, local politics and environs, the superintendent may wish to recommend a local lawyer or one from a larger firm in a nearby city. There really is no rule of thumb to follow but superintendent’s instincts work well in this situation as does questioning other superintendents in the area. In any event be prepared for an avalanche of applications once the advertisement becomes public.

However the superintendent selects his or her recommendation for the school board, it will be necessary to prepare a contract for the new general counsel. In preparation for this article the authors reviewed the employment contracts of several school board attorneys and found them all to follow a basic format. Such is not surprising as over the years “standard contracts” have been developed for anything from a teacher employment contract to the hiring of an architect to plan a school building. Indeed, it is not uncommon for the newly appointed school district general counsel to draft his or her own employment contract. So long as it contains the basic agreed upon elements, there is little worry for over-reaching as the Code of Ethics from your State Bar are very clear concerning attorneys who might seek to take advantage of their relationship with their client. As an aside do not confuse the State Bar with the State Bar Association. The State Bar actually certifies attorneys to practice law within the State while the State Bar Association is an organization – very similar to the superintendents association of the respective state. Any ethics complaints regarding a lawyer should be filed with the appropriate office of the State Bar which will conduct an investigation. Contacting the State Bar Association regarding ethics complaints is of little consequence. 

Major elements of the employment contract for the school district general counsel should include the following.

1. The term of the contract

2. A termination clause

3. Duties

4. Requirement that the general counsel be admitted to practice law in State and Federal Courts within your State.

5. Required knowledge

6. Amount of monthly/yearly retainer

7. Duties which fall outside those that are required

8. Charge rate for work outside the required duties

9. Requirement to keep and submit contemporaneous time records

10. Reimbursement for expenses

11. Delegation of authority to procure expert witnesses, court reports, etc.

12. Proof of Liability Insurance 

Most of these elements are self-explanatory but some may need elaboration. For instance, the term of the contract usually is for year to year employment. While some contracts may involve multiple years it is wise, at least initially, to rely upon an annual employment contract with a reappointment clause. The termination clause usually says something to the effect that “this agreement is subject to termination by either party upon thirty day notice.” An annual evaluation of the school board attorney also is a good idea but one which is overlooked often. Such attorney evaluation, however, is beyond the scope of this article. 

It is desirable to list the representative duties expected of the new school attorney such as attending school board meetings as scheduled, offering advice to the superintendent and school board as required, communicate with the Risk Management Department of the school district, reviewing contracts and whatever else you desire to be included in the retainer agreement. An example of such a clause is as follows. 

Attorney shall participate in communications with members of the school board, the superintendent, assistant superintendents and executive directors to discuss legal matters, review policy and reduce the risk of lawsuits and claims. Attorney shall attend meetings as requested by the school board or superintendent. Attorney shall timely respond to questions posed by the superintendent, assistant superintendents or executive directors within 24 hours to 48 hours of the initial contact. 

Other duties will be billed at the hourly rate as indicated in the contract. The duties which fall outside the retainer and for which may be billed additionally include litigation, bond issues, buying or selling real estate, hearings, grievances, arbitrations and other duties not specified in the retainer agreement. 

Often there will be a clause which specifies in general terms that the school board attorney or someone from his firm will provide adequate time and attention to the issues of the school district. An example of such a clause follows. 

Attorney agrees to devote a sufficient amount of time and/or the time of any lawyer and staff employed by the attorney’s firm to adequately, properly and promptly represent the school board in connection with all its legal matters during the term of this agreement. The attorney will be available to assist in or conduct negotiations or meetings on those matters of school board business as designated by the school board, superintendent, associate or assistant superintendents, or directors. The school board and its staff will provide the attorney with such matters it desires the attorney to review (including contracts for review) a reasonable period of time under the circumstances before the deadline for the attorney’s work to be completed. 

Often there is a clause regarding the required knowledge and expertise of the employed school attorney. Such clause usually is a boilerplate such as “...shall be knowledgeable of all federal, state and local laws, ordinances, rules and regulations that in any manner affect the legal representation as detailed in this Agreement.” 

Each month the school attorney should present to the school district office an invoice with detailed time records and work indicated. Even if all the time was spent doing retainer agreement activities, the time record and invoice should be presented for informational purposes which you will use to re-evaluate the employment agreement and retainer amount. These invoices also are helpful for your annual audit. 

Expenses for reimbursement probably will include dues for membership in the state school attorneys’ organization and expenses for traveling to meetings and conferences. Other out-of-pocket expenses may include travel outside the county incident to the contracted duties, costs of standard books and periodicals, messenger service and others. Some school attorney contracts reviewed provided for reimbursement of expenses incurred in Continuing Legal Education (CLE) training, although others considered this expense a requirement for the attorney to remain licensed to practice law in the state and thus not reimbursable. 

It is vital that the school district attorney be required to maintain an appropriate insurance policy for professional liability. This section is necessary because an error by the attorney, whether it be related to employee dismissal, student expulsion, disabled students or employees, bidding procedures or myriad other legal questions, can be extremely costly to the employer of the school attorney – the school board. Typical clauses read similar to the following. “....shall provide the school board with proof of professional liability insurance and immediately notify the school board of any lapse or termination of coverage.” 

A note on the proper use of a school attorney. Too many superintendents may ask the school attorney “...can I do this?” Asking this question presupposes that the attorney is trained not only in the law but also in educational leadership which most are not. The better question to ask the school attorney is “if I choose to do this, what are the legal ramifications?” This question limits the attorney to doing that for which he or she is educated and keeps the decision making within the job description of the superintendent. When the authors served as public school superintendents it was frustrating at a public school board meeting when one of the board members would pose the (“can we do this?”) question to the school attorney. Such public question not only puts the attorney on the spot to know the correct answer immediately but for that moment launches the attorney into a decision making capacity coexistent with the superintendent. While many lawyers are flattered at being momentarily promoted to an administrative capacity they also would prefer to have some time to think or research in order to produce the best answer to a question. 

As the superintendent you are the decision maker so you may wish to arrange in advance of such questions for your school attorney to demur if possible and indicate that he or she will communicate the answer to the superintendent in a timely manner. Most superintendents have a good relationship with the school board attorney but always remember that in an adversarial circumstance, the attorney works for the school board and may not ethically work for both the school board and the superintendent if their interests do not coincide. In such an instance the superintendent must hire his or her own attorney. 

About the Authors 

Kenneth T. Murray, J.D., Ph.D.
Ken Murray has served education as a public school teacher, assistant high school principal, high school principal, superintendent of schools, school board member and now an Associate Professor of School Law and School Finance at the University of Central Florida. He received his B.S. in Music Education, his M.S. in Secondary School Administration and his Ph.D. in School Administration from Indiana State University by the age of 26. He later earned his J.D. in law from Indiana University School of Law and became the youngest superintendent of schools in Indiana at the age of 37.  

Barbara A. Murray, Ph.D.
Barbara Murray has served education for forty years as a public school teacher, middle school principal, assistant high school principal, high school principal, school district superintendent, and member, vice-chairman, and chairman of the School Board of Brevard County, Florida, the 43rd largest school district in the United States. While in Indiana she was selected to serve on the Governor’s Task Force for Secondary Education. Dr. Murray is an associate professor of Educational Leadership at the University of Central Florida in Orlando where she was presented the Teaching Incentive Program Award and was a finalist for the Graduate Faculty of the Year Award. She earned her B.S. and M.A.E. degrees in Education at Ball State University, an Ed.S. from Indiana University and her Ph.D. in Educational Leadership from Indiana State University.