Allen: Hanna Report contains
Glaring Errors, Gross Miscalculations,
Invalid Assumptions -
Weakens FCPS Legal Position
Typically, attorneys are precluded by law from having to reveal certain kinds of legal advice and work products related to their clients. So it is unusual that an attorney would respond publicly to an internal issue. But soon-to-be-former Fayette County Board Attorney Brenda Allen made a special exception after Superintendent Stu Silberman withheld the fact of the Hanna Report and it's contents from Allen until the eleventh hour.
Allen responded with a 14-page report of her own where she stated,
The Hannah Report contains glaring errors, gross miscalculations and invalid assumptions. The implementation of the recommendations as presented would likely have a detrimental effect upon the sound legal position that currently exists for the Board of Education of Fayette County and would be problematic for the school community (staff, parent and students) at large.She complained directly about the manner in which Silberman handled the matter and said she "would have preferred to advise her client in private, as is the normal way of doing business." Then she explained,
The report, entitled Fayette County Public Schools Report on the Feasibility of Outsourcing Legal Services, was only shared with the General Counsel at 10:30 p.m. on Friday March 12, 2010, and the study itself had been conducted in secret and without valuable information from the General Counsel’s Office, necessary to complete a thorough and accurate report.One assumes Silberman wanted to deny Allen the time necessary to mount a rejoinder. She spent that particular weekend doing just that. Allen said she was left with "no choice but to discuss the concerns ... and render her advice to her client in public as is required of her by the Professional Code of Responsibility under her duty of candor and loyalty to her client."
Kentucky superintendents also operate under a code of ethics which requires them to "recognize the importance of the pursuit of truth" including the following obligations:
- Shall exemplify behaviors which maintain the dignity and integrity of the profession;
- Shall accord just and equitable treatment to all members of the profession in the exercise of their professional rights and responsibilities;
- Shall not use coercive means or give special treatment in order to influence professional decisions;
- THE REPORT CONTAINS AN INACCURATE MATHEMATIC CALCULATION OF THE AVERAGE SALARIES OF THE OFFICE OF GENERAL COUNSEL OVER A FIVE YEAR PERIOD.
- THE REPORT FAILS TO APPORTION THE SALARY COSTS ASSOCIATED WITH THE CIVIL RIGHTS COMPLIANCE/EQUITY LIAISON POSITION, A POSITION THAT WAS SHARED WITH ANOTHER DEPARTMENT AND ONLY MINIMALLY DEVOTED TO THE WORK OF THE OFFICE OF GENERAL COUNSEL DURING THE ENTIRE FIVE YEAR PERIOD AT ISSUE.
- BY FAILING TO ACCURATELY IDENTIFY WORK FUNCTIONS AND THE ASSOCIATED TIME REQUIRED FOR THE PERFORMANCE OF KEY DUTIES, THE HANNA GROUP HAS UNDERESTIMAED THE COSTS TO HAVE THESE DUTIES PERFORMED BY OUTSIDE COUNSEL. MOREOVER, THIS ERROR FAILS TO CONSIDER THE FACT THAT ADDITIONAL HUMAN RESOURCE STAFF LIKELY WOULD BE REQUIRED TO BE HIRED TO PERFORM THE WORK NOW PERFORMED BY THREE FULL TIME STAFF MEMBERS.
- FUNCTIONS RECOMMEDED TO BE PERFORMED BY THE HUMAN RESOURCES DEPARTMENT STAFF CANNOT LEGALLY OR COMPETENTLY BE PERFORMED BY STAFF WITHOUT A JURIS DOCTOR AND A LICENSE TO PRACTICE LAW
- THE RECOMMENDATION THAT THE HUMAN RESOURCE STAFF CONDUCT INTERNAL INVESTIGATIONS AND HANDLE EMPLOYEE PERSONNEL HEARINGS WITH THE SUPERINTENDENT INSTEAD OF THE GENERAL COUNSEL CREATES AN ABSENCE OF ATTORNEY/CLIENT PRIVILEGED COMMUNCATION, AN ABSENCE OF THE ATTORNEY WORK PRODUCT PRIVILEGE AND WOULD RESULT IN THE INABILITY TO PROTECT ANY CONVERSATION WITH THE SUPERINTENDENT OR STAFF. ALSO, THE INABILITY TO PROTECT ANY DOCUMENT, INTERVIEW NOTE OR INTERVIEW RECORDING CREATED DURING THE COURSE OF AN INVESTIGATION.
- THE REPORT FAILS TO COMPARE THE HOURLY RATE OF THE GENERAL COUNSEL TO THE HOURLY RATE TO BE CHARGED BY A COMPARABLE ATTORNEY IN AN OUTSIDE LAW FIRM.
- THE HANNA REPORT FAILS TO MAKE A VALID COMPARISON BETWEEN FAYETTE COUNTY AND JEFFERSON COUNTY BY COMPARING ONLY THE SALARY COSTS OF JEFFERSON COUNTY’S IN HOUSE LEGAL STAFF TO THE COSTS OF FAYETTE COUNTY’S IN HOUSE LEGAL STAFF SALARIES, PLUS ALL OTHER OFFICE EXPENSES. (emphasis in original)
Allen raises several interesting points. Absent in-house counsel advising on and conducting personnel matters, one wonders how many teachers will realize that their ability to discover information just got a lot easier.
Take the Petrilli case, for example. If there was no attorney-client privilege, a Silberman email which became a central piece of evidence - which Peggy Petrilli's attorney Dale Golden said showed the district's true intent - which he called the smoking gun - and which was sealed by the court - might have found its way in front of the jury. What might that have meant for the district? What might it mean in the future if FCPS staff were to begin challenging personnel actions on a wholesale basis?
10 comments:
Dear Sir,
I learned today there has been a long brewing feud between Stu and Brenda today. One thing that he was angry at her for was her insistence that kids who did not have the proper immunizations, should not be allowed into school until they got them. Stu said otherwise.
The fact that she was let go is, in my view, irresponsible, and signals that we have a mini-dictator on our hands.
I honestly thought Stu would have more sense than to let Brenda go. This is yet another dismissal.
Sadly, Brenda gets the negative publicity and others who have left quietly like Michael Ernst (who abused his power) received no negative publicity at all.
I'm a teacher here in the school system. Yes, I am too frightened to say anything about Mr. Silberman, for a number of reasons, but I will speak up on behalf of Brenda Allen, whom I called once about an equity issue.
Mrs. Allen was professional and caring. I could never have discussed the personal things I discussed with her with, say, my principal. Her advice was professional. Though I let the matter drop (I'm uncomfortable with the current equity coordinator), I was pleased she listened.
While I never agreed with the conclusions she drew about Mrs. Petrelli, whom I also know, I had a hunch that she was pretty much told that this is what Stu wanted her to write.
I know these forums tend to be divided over what is right for Fayette County Public Schools, but I will say that we need an in-house lawyer for teachers as well as principals. Without Brenda Allen, I do not think we are better off. On the contrary, we are heading for disaster.....
Richard,
Great job on your research and analysis of this issue. I agree with you that the pros and cons of this decision may not have been weighed appropriately.
The link to the response is not working, though. I think that would be an interesting read.
Thanks for the comments and for letting me know my link was bad. I fixed it.
Wouldn't it be nice if all employees felt they were supported and protected? Stu is a joke and he is a bully to personnel. I thought Stu came on board to help make our district better, our employees proud, and to help our students excell...instead, it really isn't "About Kids". He keeps teachers who are inept and comes down hard if parents or staff question he or his principals. Why is he hiring only new grads with no experience. Where are the "older" teachers who went back to school? They get pink slipped right before they can get tenure or don't get approval for a job that they are qualified for. Nice Stu, experience doesn't count does it? Special Education kids are not getting all they can from these inexperienced teachers. Kids have an IEP for a reason, yet, there is no accountability unless an astute parent complains. When staff complain, we are told, "You need to support them" and stern warnings are given to keep quiet. Year after year keeping quiet...ridiculous. Parents who are attorneys scare the district, and "their" child finally gets whatever accommodation put in place. Trust me, I know and I see. I no longer enjoy my job. Stu doesn't listen, the principals don't listen. Private school may be the way to go. But then again, the poor always get slighted.
Have there been any reports on cost savings by outsourcing other "in house" specialists? If not, this looks like a personal mission against Brenda Allen. I'd like to see the report on the district architect and look at outsourcing that position before getting rid of the legal counsel.
Richard,
I don't much about school law, but if Mr. Silberman is usurping his powers, if people feel they have been wronged by him what can they do? How does the grievance process work in Fayette County? If a teacher is suspended bythe superintendent, what recourse do they have? Is it just me or do you think teh tide is turning?
I recall that ultimately it was Mr. Peter Flynn who was let go when he did not inform the B.O.E. that a principal at Leestown had been found with a gun.
I desperately want new leadership in Fayette County Schools. Do you hols a superintendent's certificate?
April 13, 2010 12:31 PM: The most common refrain I hear with regard to Stu’s personnel management – and this comes from folks very close to him – is the sense that he truly does care for the students, but doesn’t give a damn about any of the adults involved in the process. Teachers complain that the effort to improve instruction has been discarded along with any teacher who does not measure up today…that there is no effort to make teachers more effective, rather just to get rid of them and bring on the next one. What constitutes “measuring up” is seen by teachers as capricious and many claim it has more to do with whether a teacher “goes along” than it does their actual competence, which we cannot fairly measure at this point.
Now, it’s probably important to point out that this approach is highly supported in education leadership circles these days. The Gates Plan; the Obama Plan; The Ed Trust plan; Michelle Rhie in DC...virtually all of the policy heavy weights support this approach. Folks grumble about it, but few oppose it. Diane Ravitch’s new book “The Death and Life…” is a broadside against the approach and explains where it came from very well.
April 13, 2010 1:10 PM: Sure. However, a lot of the recent literature is about organizations not just outsourcing legal services, but off-shoring them. I don’t imagine FCPS has that in mind.
There are other studies as well.
The way I’ve always understood outsourcing is as described in Quinn and Hillmer’s “Strategic Outsourcing” in The McKinsey Quarterly, No. 1, 1995.
Two strategic approaches, when properly combined, allow managers to leverage their organization’s skills and resources well beyond levels available with other strategies:
* Concentrate the organization's own resources on a set of "core competencies" or the central mission.
* Strategically outsource other activities for which the organization has neither a critical strategic need nor special capabilities.
Under that design, the superintendent would hold close those activities that are central to the schools’ mission including school reform issues related to curriculum, instruction, professional development and PD along with legal and budgetary matters. That is not to suggest that some of this couldn’t be outsourced effectively, but the management of such decisions ought to be held close to the superintendent, it seems to me.
For example, hiring someone from outside of the district to deliver training makes sense if the district is able to control that content and direction of that training. Maybe you outsource some accounting function, but not your budget manager. Same with legal; there ought to be an in-house attorney who manages whatever pieces are outsourced.
April 13, 2010 6:59 PM: There is a grievance process. It begins when you contact your board of education member and ends when you vote. I have no sense that a tide is turning. Aside from my own speculations and the commenters herein, I don’t see any groundswell. I hear grumbling, but that’s all. The Herald-Leader seems protective of Silberman and board members I have spoken to seem to say the same thing: ‘Stu’s great. He works hard and has done a lot of good. But about 5 – 10% of the time his ego gets in the way and presents problems for the district.’ …that kind of thing. Two have told me they would renew a (hypothetical) contract but at times disagree with his approach. There seems to be an "ends justify the means" philosophy at work on the board generally.
Yes, I do hold a certificate, but I’m not the guy.
When I asked about other reports on outsourcing, I meant has FCPS specifically requested reports like the Hanna one for other "in house" specialties? If not, this would seem more like a personal mission against Brenda Allen. As an outsider looking in, it doesn't make sense to start with outsourcing legal counsel when other things like the district architect make more sense. Am I missing something?
I wholeheartedly approve of focusing on the needs of the kids above all else. Unfortunately, the main focus seems to be on what's best in the short term (higher test scores) instead of the long term (developing children into autonomous, purposeful adults). Thanks for recommending the "Drive" book. I'm enjoying it.
Ahhh. Sorry. I misunderstood... but I don't know the answer for sure.
I certainly have not heard of any other such studies and would be surprised if there were any.
So, yes, my conclusion, like yours, was that the report seemed to be nothing more than "a service" Silberman purchased to convince the board that the district would save money by outsourcing legal services - thus removing a thorn from his side, or perhaps deflecting blame for KDE's rejection of Allen's (or was it really Silberman's) Petrilli report.
If the board truly believes that outsourcing is the way to save money and become more efficient, can we expect to see budget managment outsourced? What about curriculum leadership?
In fact, I didn't post a story on this when it happened because I was too busy to get into it. When a reader asked me to look into it a couple of weeks later, I was stunned by how badly the report was conceived and conducted. My initial suspicion came from the timing of certain events. I'll lay that out in a post - next chance I get.
When I asked FCPS if the superintendent was concerned about how the timing made all this look, of course, they said 'no.'
Glad you're enjoying the book.
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