Do I Need a Lawyer?
Arizona School Administrators’ Summary of Legal Services
Superintendents, principals and supervisors in the schools have become more aware of the legal issues such as hiring and contracting, tort liability, personnel evaluation, student rights, and electronic devices; however, they still struggle with personal issues. Although administrators are becoming more successful in the day to day student legal issues, the adult issues are more complex and carry significant consequences when not managed legally. During the past few years a number of legal issues involving administrators have required various levels of legal representation. The issues discussed below are not all inclusive and are not just common to Arizona Administrators. Arizona School Administrators (ASA) provides legal services to its members because it recognized that leading in a litigious society requires support and legal advice when necessary to resolve the sometimes adversarial relationships of a leadership position.
ASA Legal Services
As background information, ASA provides legal advice/representation for administrators after six months of paid active membership. As a courtesy, new members are provided up to two hours of consultation with an attorney at no additional cost. ASA members are also eligible for two hours of legal consultation. This initial consultation is used to determine the extent of the legal issues, legal remedies, and statutory timelines and processes. After six months of active membership, ASA members are eligible for up to fifteen hundred dollars ($1500) of paid legal services per occurrence. If the ASA member is a member of a national affiliate also proving reimbursement for legal services, such as the National Association of Elementary Principals (NAESP), the National Association for Secondary School Principals (NASSP) or the American Association of School Administrators (AASA) then ASA pays the member’s required five hundred dollars ($500) deductible to the national association. When the ASA member applies for reimbursement of additional attorney fees from the national association and the national association reimburses the member, ASA then pays an additional one thousand dollars ($1,000) if the National organization does not cover all the attorney fees. ASA members do not receive an additional fifteen hundred dollars ($1,500) in legal fee reimbursement from ASA for continuous legal fees on the same legal issue even though the legal issue may extend to a second or third year. It is the ASA member’s responsibility to pay the attorney fees in excess of the first five hundred paid by ASA and it is the ASA member’s responsibility to seek reimbursement of attorney fees from the national organization. ASA contracts for legal fees at a reduced hourly rate. While the ASA attorney handles most legal matters for members, an occasional “overload” or “conflict of interest” may arise requiring referral to other attorneys or a member may be referred to an attorney with expertise in a specific legal issue. Most attorneys who represent administrators charge an average of $215 to $300 per hour; however, there are Arizona attorneys dealing with education related legal issues who charge between $400 to $650 per hour and a few (very few) who charge $180 per hour. Most ASA member legal issues are resolved for $1,500 to $3,500. However, wrongful terminations, discrimination cases, contract “buyouts” or settlement agreements or breach of the settlement agreement, and representation regarding certification complaints can be more costly depending on the cooperation of all parties.
Areas of Coverage
ASA has provided legal assistance in the drafting, negotiating, and/or review of employment contracts; assisting members in termination of contracts including contract severance and the money value of contracts for settlement or retirement purposes; drafting and negotiation of settlement agreements; breach of the employment contracts, allegations of professional misconduct, allegations of dishonesty, allegations of discrimination and allegations of sexual harassment. ASA legal coverage does not include criminal issues, divorce or family law, or personal injury or tort litigation except in the employment context, for example, tortious interference with a contractual relationship.
Process in Obtaining Legal Assistance
When a member seeks legal assistance from ASA, the member calls ASA’s Executive Director or the ASA office staff to receive a legal assistance intake form. The form is confidential and requests employment, contact information, and a general description of the legal issue. Once the form is completed it is reviewed by the Director of Legal Services and ASA’s Executive Director, and a determination is made as to eligibility for services, the extent of services, and membership information including membership in national organizations. If it appears the member is not eligible for services, the Executive Director calls the member to elicit further information. If the member is eligible for services, ASA’s Director of Legal Services calls the member to discuss the issue, schedule an appointment or refer the member to an outside attorney. Timelines are of utmost importance. It is not unusual for a member to call and say “The Board wants my resignation by the end of the day”, or “There’s a Board meeting scheduled for tomorrow night and I’m on the agenda to be (select one) terminated, disciplined, demoted, or reassigned.” A few months ago, an administrator was assigned to his/her home on a Tuesday at 4:30 PM. On Wednesday evening the administrator received notice of a special board meeting including discussion of a “contract buyout”. The attorney had until noon the next day (Thursday) to determine the contract value including benefits and draft a proposed settlement letter to the Board’s attorney for a 8:00 AM Executive Session on Friday. This type of timeline often results in rushed and adversarial positions instead of thoughtful and good faith negotiations. This timeline was not the fault of the administration but a difficult timeline for most attorneys. Information related to cell phone or evening contact is important when completing the form.
Representative Legal Issues
Examples of representation over the years have shown ASA members having experienced legal issues as listed below. Although issues range from reviewing or drafting written contracts, researching and applying law to legal issues, the list below is not all inclusive and was selected for complexity of legal advice necessary:
1. Adversarial Board/ Superintendent/ Principal relationships resulting in termination of contracts, reassignments to home or special projects, severance agreements, and contract “buy outs”. Comments: It is not uncommon for one or more Board members to try to find “cause” to prevent paying full value of a contract including wages, benefits, and unused but vested and accrued leave. Most of the time, these issues are negotiated. It is important that an administrator be able to leave employment with dignity and his/her professional reputation intact. The administrators’ property rights and liberty interests can be implicated. Joint press releases to the media can be helpful when a school community questions a superintendent’s or principal’s resignation or severance from employment before the end of the contract.
2. Alleged or actual inappropriate relationships between administrators and subordinates (certified and classified) is a difficult issue for all involved. Comment: This issue has resulted in resignations, demotions, family problems, prospective employment issues, allegations of favoritism and community involvement in the issue. Administrators and supervisors who become a subordinate’s confidant and listens sympathetically to an employee’s personal problems or spend lunches alone to hear their problems may lead the employee to misinterpret the empathy and believe that a relationship may be developing with the superior. These situations often end in sexual discrimination/ harassment claims by one of the parties.
3. Termination or non voluntary termination issues are ongoing as they are in any organization. Legal issues involving policy or contract language in the payout of earned and vested leave days.
Comment: This is a recurring legal issue. Sometimes there are conflicting policies. In addition, superintendents can, by contract, receive more benefits than other district administrators. These issues have revolved around payments due to administrators upon retirement or resignations from the district for earned and vested and accrued leave days. Policies vary among the districts. This issue is experienced by principals as well. Clear and unambiguous policy and contract language is important.4. The issue of dishonesty and or alleged dishonesty.
Comment: Legal issues involving “dishonesty” range from misuse of school credit cards, misuse and lack of accounting for student activity funds. More than one administrator has been disciplined for misuse of student activity funds (administrators should never carry student activity funds on their person and another principal kept no records and wrote checks to family members from an account resulting in a felony conviction and loss of certification), falsifying travel claims, and allegations of stealing – tools, boxed educational programs (upon leaving the district), and allegations of stealing items bought by grant monies – to name a few. Not all allegations are found to be true after a thorough investigation. Careful record keeping, following policy and state law as well as use of good judgment are paramount in these issues. It is important that administrators have processes in place to maintain detailed student activity records.5. Increased issues of professional misconduct involving alcohol while “on duty” and misuse of district computers to access pornography or personal websites and “chat” rooms. Comment: All administrators should take time to read as well as in-service their certified staff on the Arizona Administrative Code Title 7. Education, Chapter 2. State Board of Education, Article 13.: Rules Defining Unprofessional and Immoral Conduct. In addition, understanding the law regarding public documents is critical for all administrators. Technology has created a new area of awareness for student and personnel practices. An Administrator who has a reputation for high standards of professionalism and personal integrity stands a better chance of prevailing in most instances of false allegations. In addition, school administrators who engage in preventative practices will lessen the opportunities for allegations. Resolution to these issues begins with clear understanding, communication and knowledge. Providing legal training for all administrators annually increases knowledge, provides an update on legal changes and creates preventative systems within the district. James Wasser, a superintendent in New Jersey, shared these thoughts in his article for the American Association for School Administrators’ magazine The School Administrator (October, 2007), “To minimize frivolous litigation against school districts, we have to understand what motivates people to sue in the first place. The most common motivators include one or more of these factors: failure to communicate; lack of understanding or knowledge; passion and emotions; stubbornness and pride; and greed.”1 Stay updated and have a clear focus on prevention of litigation, and when in doubt ask yourself, “Do I need to call a Lawyer?” The answer may be yes. Submitted by Kay Hartwell Hunnicutt, ASA’s Director of Legal Services and Consulting Attorney for the past fourteen years. Dr. Hunnicutt can be reached at attorney@azsa.org or drkhhunnicutt@aol.com
______________________________________________________
1 “I’m Calling My Lawyer” by James Wasser can be located at
http://www.aasa.org/publications/saarticledetail.cfm?ItemNumber=9422