I am one member of a five person board. The opinions I express on this forum are mine only, and do not necessarily reflect the views or opinions of the Escambia County Staff, Administrators, Employees, or anyone else associated with Escambia County Florida. I am interested in establishing this blog as a means of additional transparency to the public, outreach to the community, and information dissemination to all who choose to look. Feedback is welcome, but because public participation is equally encouraged, appropriate language and decorum is mandatory.

Friday, November 13, 2015

Why the Board/Attorney Relationship Should be Carefully Memorialized in Policy

I believe  a complete and thorough description and delineation of the school board/attorney relationship, along with a firm set of expectations for the conduct of each, should be memorialized in School Board policy.  It is unfortunate, but as I explained in the workshop (beginning in minute 46:00 of part 1 of 2)  as I presented this PowerPoint on the merits of and reasons for such a proposed policy, sometimes it takes unfortunate incidents, accidents, or disasters to spotlight deficient processes, policies, and/or procedures.

Such an incident occurred last month with my receipt of this memo, unsolicited, from the legal office. I did not request it, I did not want it, and I believe it was a badly flawed memo that became a public record the minute it was produced and widely disseminated.  This memo, for various important reasons that I have detailed here, here, and here--is potentially damaging to the School Board in general, and to me in particular.  This memo should not have been written.

My counterparts on the board disagree with my request to add such changes to policy;   instead, they prefer addition of any such necessary modifications to the attorney's contract.  I can live with this.  I'll research this bring suggested changes/modification to an upcoming board workshop.

But something must be done to force greater consideration before the attorney unilaterally creates  public records that are potentially damaging to the board.

While at this workshop the school board's attorney and at least one other board member loudly and publicly disagreed with my assessment that her memo was, indeed, a public record the moment she created it--an analysis of various Attorney General Opinions and informal Advisory Opinions as well as Florida Statutes describing public records point to the inescapable conclusion that this memo was and is a public record.


1.  The memo was sent without the typical banner across the email describing it as "Attorney Work Product."  All previous memorandums sent to School Board Members relating to litigation, adversarial proceedings, or imminent litigation or adversarial proceedings from this attorney that were considered Attorney Work Product carried forceful  "Do Not Disseminate--Attorney Work Product Applies"  disclaimers.  This memo carried no disclaimers.

2.  In order for our attorney to invoke the attorney work product exemption for this memo, it must have been prepared "specifically (emphasis added) for civil or criminal litigation or for adversarial administrative proceedings or prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings. (Section 119.071 Florida Statutes)  In this case, the memo was prepared because the attorney and her paralegal "Researched FERPA and voting recusal issues related to social media posts made over the past few days...and prepared a letter to board

 member involved" (email from Donna Waters to Patty Hightower, 10-26-2015, 11:36 AM CST)

3.  The School Board's attorney, after completing the memo and less than an hour after contacting another board member about her memo, sent an email to an ACLU of Florida staff attorney where she asked "Are you involved in this [bus video/discipline] matter as an attorney?" (email from Donna Waters to Benjamin Stevenson, 10-26-2015, 12:20PM CST)  Had the district been in litigation or subject to imminent litigation--such an email to another attorney would not have been necessary.

But even if the attorney work product exemption was properly asserted, it is only recognized for a short duration, until such time as the imminent litigation or adversarial proceeding is concluded.  After such time the record is subject to release.  from AGO 94-77 "The exemption from disclosure provided by section 119.07 (3) (n), Florida Statutes, is temporary and applies during the pendency of the particular litigation for which the document was created.  The exemption exists only until the conclusion of the litigation even if other issues remain." one way or another, this memo was or would soon become a public record.  Even if it raised or raises other issues of concern for the agency or entity----which it possibly could.

This is why this whole episode has been so disappointing......


Anonymous said...

How about memorializing your (discriminatory) invocation policy in writing?

Jeff Bergosh said...

Dave, our practice of having a pre-meeting prayer comports with current law and is inclusive and diverse, I think you must know this by now right? We have demonstrated this sense of inclusiveness over the last year with multiple prayers by multiple faiths and even some secular poems about geese and even a Dr. Suess story if my memory serves me correctly. In short, Dave, we follow the law. Merry Christmas!