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