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.

Why?

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

18 Questions

What happens when an attorney and an individual board member find themselves at odds over important and urgent school-related matters---and the board attorney REFUSES to answer questions and/or provide legal opinions?


What happens when an attorney that purportedly works for the school board decides to write a memo to one board member, one part of her client, unsolicited, and that board member takes issue with this?

This happened with this memo which was sent to me unsolicited and copied to persons outside the client, other members of the school  board, and various secretaries----with no disclaimers attached describing it a privileged attorney client work product.

This memo, due to the way it was disseminated, instantly became a public record that could be badly damaging to the client, the school board, and one part of the client, me.  I could not get a straight answer from the attorney about why she felt it was not a public record and what the specific exemption would be preventing disclosure---- however I am aware that exemptions from disclosure are narrowly construed to effect broad public policy favoring disclosure. (WSMAA, 1998, p.18)

This memo became an instant public record, so far as I can tell, due to the way it was disseminated.

That is problematic.

Obviously I strongly disagree with the content of the memo, and I strongly disagree with the rationale for releasing this memo, the way it was released and the insinuations raised by this memo.

I disavow the content of this memo and disagree completely with every insinuation contained within this memo.

From day one when I received it, I have voiced my disagreement while simultaneously I've been trying to get answers to questions I have about this memo.  Our Board attorney, Donna Sessions Waters, refuses to answer any of the legitimate questions I have related to this memo, either in writing via email, or via a sit-down, face to face conversation.  I have emailed her three times with specific requests and questions about this memo, and these questions have been ignored.

In an attempt to straighten this issue out I requested and scheduled  a meeting with Donna Waters yesterday, 11-10-2015 at 4:00 PM, at which point I was going to ask her 18 specific questions ( here, here, here, here, and here ).  I have tried to receive answers to these questions via email, to no avail, about her conduct as it relates to her creation, dissemination, and subsequent refusal to answer any of my legitimate questions about this memo.

I've never witnessed such unprofessional, insubordinate, and disrespectful conduct from an employee

Emails Shed Light on What Prompted Memorandum

I have been provided a large stack of emails that I requested regarding the events leading up to a memo that was sent to me by School Board Attorney Donna Waters last week.

The emails shed light on a lot of different aspects of what apparently led to the creation of the memo that was sent to me, the memo that was improper, unprofessional, and badly flawed in my opinion.

Sadly, it appears as if several social justice groups and at least one parent prompted this memo to be written.  I'm posting those emails here.

The Superintendent of Schools has told me flatly that he did not request a memo be written by Mrs. Waters regarding my conduct.

I certainly did not request it--I did nothing wrong.  Mrs. Waters certainly knows how I feel about this matter upon reading this response and this follow up.

So who requested that the Board Attorney write this memo to me, copied to multiple others?

Here is what I believe...

It appears as if the attorney had done a significant amount of research in order to write and submit a "Viewpoint" to the Pensacola News Journal.  Whether or not this was ever submitted, I do not know.

Apparently, possibly, A radio interview by the father of the victim of the WFHS bus incident may have circumvented the need for this "Viewpoint" to be submitted.  Who knows?

The radio interview totally destroyed the PNJ's characterization of this incident and a lot of district employees were happy that this parent spoke out.  This parent heralded the actions of the board and district, while simultaneously chastising the PNJ for their horrible straw man hatchet job editorial of 10-18-2015.

So with all of the research on FERPA compiled, and after the father of the victim spoke out, why would such a memo subsequently be sent by an attorney to her client?  Why not a phone call or a discreet conversation.  Why?

It appears that I was excoriated because some parties outside of the school board, the Board Attorney, and perhaps even the chair of the board did not like the fact that I commented on social media.

Apparently they didn't like me countering the apparent propaganda  and hearsay published on the PNJ with hearsay from constituents that I was receiving about this WFHS bus incident that was totally opposite of the narrative the PNJ was trying to create?

Who knows?

But at the end of the day, I have yet to be officially briefed on this matter.  I have not seen any videos, documents, or hearing transcripts.  I've yet to even receive an official discipline recommendation for any students involved in this incident.  I do not hold any student records I do not have access to any student records, and I have divulged no records to anyone and I certainly have not violated FERPA!  If anyone at the district thought I had violated a law, they should have reported it!  I didn't violate any law, and I don't violate laws.

That is why I feel the written memo was wrong, boderline libelous, and the situation was badly handled by our legal office and others; the memo never should have been written.  This memo is nothing but a dog-whistle being blown loudly  that could embolden enemies of me in particular, and the school board generally, to investigate and dig further and make this situation much more complex for the client.

What attorney in his right mind would write such a public record memo that could potentially bring harm to his/her client or a part thereof of his/her client?

Why so quickly and prematurely write a legal opinion that one part of her client must recuse?

This was outrageous.

This MESS will be discussed at the next board workshop, and hopefully a better, more focused board policy will be forthcoming that will speak to the when, where, and how written memos about the client or parts thereof are created and disseminated publicly by the School Board's General Counsel going forward.

Was this a Violation of the Sunshine Law?

Yesterday afternoon and early evening was surreal.  After receiving this email memorandum from the school board's attorney, and after I immediately responded back to the attorney with this email (redacted), my response was copied, by our attorney, to another board member.  (I'm redacting my response to shield my thoughts on how I may vote on the WFHS bus incident.)

I am astonished that our own attorney would copy another board member with my response, which included my thoughts on an incident that will surely come before the board for a vote.  Was this a violation of the Sunshine Law? I'm not an attorney and I don't know for sure, but I have asked our attorney to provide a written memo on this question, post haste.

First off, the initial email that I received with the memorandum was uncalled for, I did not request her opinion, and I did not need her opinion.  What she suggests  in her memo I disavow and disagree with in the strongest terms.  It is borderline libelous.  Nobody can believe, nor has anyone I have spoken with about this disparaging memo ever heard of an attorney excoriating his/her own client in such a written memo.

No phone call, no discretion, just a chastising, chiding, inappropriate memo.

I have done no wrong, and I have violated no laws.  I simply corrected an incorrect narrative that was being told in the PNJ over and over, a narrative that was completely opposite of what I had been told by multiple parents and students with firsthand knowledge of the incident in question.  I have no official knowledge of this incident, I do not know, even to this minute, what these students' eventual punishment will be. I do not know who these students were.  I have no official knowledge of this incident, a point I made clear in every post, blog entry, and comment I have made thus far with respect to this incident.

This memo, by our attorney to her client, was an absolute disaster and is totally baseless.  The only thing I have done here is to counter an ideologically slanted, biased narrative in the press with hearsay of which I was aware that was completely opposite of what hearsay the PNJ was publishing.

  With the father's own testimony on the record now, completely discrediting the PNJ and making them appear foolish, It is quite puzzling to me as to why I would now be chastised.  I stood up and called BS on the slanted yellow journalism.  Jefferson said it best--"Evil flourishes when good men

Huge Court Victory for School Boards Statewide

The word came late yesterday afternoon that the School Board had prevailed in a challenge to the utilization of  the Value Added Model (VAM) for computation of teacher evaluations.

In Cook v. Stewart, the Escambia County Teacher's Union and others challenged the VAM calculations for utilization as a factor that helped to determine teacher pay.  School Board attorney Donna Waters argued the case in April of 2014 in Gainesville before the Federal District Court.  The plaintiffs appealed to the Federal Circuit Court, and in April of 2015 the Board's attorney presented the appellate argument before this court in Montgomery Alabama.

Yesterday, the court issued their ruling--affirming the lower court decision in favor of the School Board and the Florida Department of Education.

This decision is another huge victory for students, parents, and taxpayers around the state.

read the complete ruling here