Friday, March 12, 2010

School Boards and The Role of Attorneys

Last night I attended the Pike Township School Board meeting. The meeting provided some high drama - or what counts for high drama in school board meetings. It seems the Pike administration wanted to change one of the flex days in the upcoming calendar from what had been agreed to in the teachers' contract.

According to administration officials, their attorney had offered the legal opinion that the administration had the authority to move the flex days as calendar matters were not subject to union negotiation. A Court of Appeals case was trotted out which officials said, according to their attorney, trumped the terms of the teachers' contract which by operation of law was to continue in effect until a new contract is negotiated.

Unfortunately, the Board did not have anyone to offer legal advice. They were stuck with the administration attorney's opinion. As I told people afterwards, that attorney is an advocate for the administration. His job is not to offer objective legal advice to the Board but rather to find a legal argument to support the administration's position. The Board is the legislative branch, a check on the administration. The Board needs to have its own counsel in situations like this

When I arrived home, I looked up the court case. The court case said that only under certain circumstances are calendar matters mandatory negotiation items for a collective bargaining. The case doesn't say that those calendar items can't be negotiated. Most importantly, the case's holding regarding negotiating calendar issues also certainly doesn't trump the terms of an existing contract as was represented to the teachers union representatives at the meeting.

While the flex day issue is not a major one for the teachers, the conflict could have been avoided with a better working relationship between the administration and the teachers' union. It is amazing what treating others with respect and honesty can do to create a better working environment. Misleading teachers about what the law says about school calendars and their contract is not a good start to collective bargaining.


Had Enough Indy? said...

The School Boards need to have their own attorney at all meetings to advise them. As you mentioned, not one beholden to the Superintendent, but one beholden to the Board.

There used to be such attorneys present, but the Superintendents found them a barrier to having full sway over the Board.

Diana Vice said...

You really hit the nail on the head with this one.

Unknown said...

I served on a school board several years ago. The Board hired an attorney that represented the coporation. The administration did not have a separate attorney and all legal opinions were funneled through the school board. The Superintendent is an employee of the school board. Taxpayers certainly do not need to pay two attorneys. Since most school systems are corporations, the school board is similar to the Board of Directors while the Superintendent is the CEO. One attorney is enough.

Diana Vice said...

I know of one school district in Indy that not only has school attorneys, but also employs public relations firms. It's a huge waste of money!

Paul K. Ogden said...
This comment has been removed by the author.
Paul K. Ogden said...


I would add that the Superintendent is not an employee of the School Board. He/she is an employee of the school district. He/she is hired by the school board. That doesn't make the superintendent an employee of the school board.

There is a reason why we support the principle of separation of powers in this country. We want our legislature and executive to act as checks on one another. It's a healthy system. It's not healthy when school boards become extensions of the administration.

Paul K. Ogden said...


I have to strongly disagree.

Attorneys are advocates. You have an attorney for the school district, that person is ethially obligated to represent his client (the school administration). They are not ethically obligated give objective advice to the Board.

I venture to say your Board members were being foolish if they think they could trust that lawyer to give the Board objective advice.

As far as taxpayers paying for two lawyers, that's an easy one. School districts need to stop paying inflated salaries to law firms like Barnes & Thornburg that have been years fleecing taxpayers with outrageous legal bills. Once you stop doing that, there is plenty of money for both the school district administration and the board to have their own attorneys and return those excessive legal fees to taxpayers.

Again, if you want proof that there is a need for separate legal representation, look at my example of the Board meeting last night. Clearly the Board was mislead by the adminstration's attorney about the legal effect of that Court of Appeals case on the contract.

Finally, I would point out that the City-County Council doesn't turn to Mayor Ballard's attoneys for legal advice. The council has their own attorney. The Indiana General Assembly doesn't use Governor Daniels' attorney. The General Assembly has their own attorneys when legislators want legal advice.

Why is the legislative-executive situation different with regard to a school board? Again, School Boards are being very foolish if they think they're getting objective advice from an attorney who represents the school administration.

Marycatherine Barton said...

On the issues concerning legal representation raised by Ogden on Politics, I definitely agree with Paul. Also, Pike Township teachers deserved better than the way they were publicly treated thanks to that board meeting announcements and explanations about their contract provisions concerning flex time. The Pike
Township residents should hope that Ogden is elected.