Ethics by Allen

On Tuesday, I had the pleasure of meeting Brenda Allen for the first time.

As KSN&C readers know, Allen served as attorney to the Fayette County Board of Education until she was leveraged out in what was made to look like a simple reduction in force, supposedly to save the district as much as $350,000. It looked like something else to board member Amanda Ferguson who complained and asked KSN&C to look into it. Ultimately, Allen’s position was abolished, all legal services in the district were outsourced, and the district paid her $200,000 not to sue or talk ugly about them.

$200,000. That’s about 6 or 7 teachers salaries, isn’t it?

What does $200,000 buy these days?

I made my way to the capitol city Tuesday morning to find out.

Brenda Allen is the seventh of eight children in a military family that traveled around the United States and then to Germany where Dad served as a mess sergeant. The family came to Louisville where Allen attended Pleasure Ridge Park High School. An undergraduate degree in broadcasting led to the Courier-Journal where she worked in advertising. At 28, she decided to pursue a long-standing desire. Allen entered UK Law and became an attorney. Her first position was with Brooks & Fitzpatrick, where she worked with Jane Fitzpatrick, Ron Walker, and Ellen McComb (who clerked for Kentucky Chief Justice Robert Stephens during the drafting of the Rose decision).

Allen later worked Medicaid fraud cases for Attorney General Ben Chandler and tried cases in the civil division. When Kevin Noland became aware of an opening at EPSB, he encouraged Allen to apply and she was successful – ultimately rising through the ranks from 2002-2006 to Deputy and CFO.

She thought working in a large school district would be less stressful and accepted the board attorney’s position in Fayette County. Little did she know…

The public should, generally, feel good about the quality of school administration in Fayette County. Top line administrators are expected to work long hours and the board attorney was no exception. A week of work regularly ran to 60 hours; sometimes more. As in-house counsel, she wasn’t billing the district $125 an hour - which is (roughly) the least expensive deal the district gets when it outsources legal services. More typical hourly rates run above $250 an hour.
Allen’s time in Fayette County was full of phone calls, custody disputes, ARCs, personnel grievances and appeals, non-criminal investigations, issuing official letters such as suspension letters, working with law enforcement, due process hearings, student records issues, student medical issues, working with court appointed student advocates….

I always had the board attorney on speed dial, because, in a tricky situation, I wanted to know the law before I acted, rather than after something got messed up. I’m not sure who, if anyone, principals call for legal advice in Fayette County today.

Fayette County Superintendent Stu Silberman thought enough of her work that, in 2009, he took Allen under his wing, and working with her professor, helped Allen complete her school administration practicum as an "assistant superintendent" under the alternative certification program. By that means, she became eligible to serve as a superintendent in Kentucky.

But beyond all of her duties, the board attorney’s position is, apparently, a political one. Strong leadership wants certain outcomes and attaining those things is most easily done without opposition. I chatted with Allen about her experience as a school board attorney and wondered about how one navigates such choppy waters. Sometimes the law, and what someone wants to do, come into conflict. How does an attorney’s ethical commitment come into play?

KSN&C: As an attorney, if say, a board member asked you for advice, what was your thought process?

Allen: Well, I’m just very true to the law. So if a statute says we can do it, or if I can come up with a valid interpretation that I’m comfortable defending in front of parents, the press, or in court, then I’m going to say “Yes.” …Sometimes, if you think about it creatively, there’s a legal way to get done what you want to get done. You may have to tweak what you’re coming up with a little bit, you know. I felt like that was my role, to come up with what [the board] needed, to get the job done that they wanted to get done – if it was possible. If it was not possible then [I’d] say, there’s just no way we could do that.
KSN&C: There’s a body of thought out there that the best leaders are these hard-chargers, and they don’t let little things like procedures get in the way of doing what’s best for kids. You know, making sure that the program moves forward. I know as a KPIP trainer (for the now defunct Kentucky Principal’s Internship Program) for the state, Connie Evans and I were doing a training once in Fayette County. Unfortunatley, I had to leave the session for 40 minutes for something and when I came back, I learned that [then middle school director] Michael Ernst had been there. My partner called me over while the students were in an activity and expressed concern saying, ‘You won’t believe it, but he came in and told them they didn’t need to follow [whatever regulation Connie had been teaching about] because the district wants them to proceed in a different kind of fashion.’ And aside from the fact that it undermined what we were teaching, which was basically here’s what the law says you’ve got to do and you should follow that… it seemed to expose a way of thinking from the top, or pretty darn near the top. Did you run into much of that kind of thing?

Allen: I probably shouldn’t answer that.

KSN&C: OK. Ummm. OK, fair enough. But you have to, I mean, those are the kinds of things you have to make a decision about as an attorney, and you look to the law to be your guide, basically?

Allen: Right. It’s incredibly important to me being an attorney, to be a good attorney and an ethical attorney.

KSN&C: Good. I’m glad you said that. What are the ethics? Let’s say you are advising me, as a principal, or a board member – somebody who’s your boss – and let’s say your boss wants to do something that; well, you have reason to believe the law would argue against that. Are you obliged to - do what? Say something? Say nothing?
Allen: Well, there’s a lot of rules that govern attorneys and we have a duty of loyalty to our client.

KSN&C: So what’s that mean?

Allen: In the role that I was in, the client was the board. The board was my client.

KSN&C: OK.

Allen: Now, the client is an organization. And it can be fairly large. But when the interests diverge, and someone wants to do X, and it’s not in the interest of the client, then I felt like my role was to try to reason with this person and say, ‘Hey, we can’t do this,’ blah blah blah, and this is why.

KSN&C: Is there an ethical obligation that attorneys do that, or is it discretionary?

Allen: No, there is an ethical obligation.

KSN&C: In other words, if I’m obliged to be loyal…

Allen: Right.

KSN&C: …but at the same time I’m obliged to follow the law…how does that get parsed out?

Allen: Well, you have a duty of loyalty to your client but that duty of loyalty encompasses being candid. You have a duty of candor, to give sound legal advice; all those things are encompassed in that duty of loyalty. It’s not that I’m going to be loyal to you no matter what you do. Within the scope of my responsibilities to you, I’m going to be loyal, but as your attorney, I’m going to tell you this.

KSN&C: Could you be loyal and not tell me that?

Allen: Umm.
KSN&C: I want to do something and it’s questionable. You think it’s questionable on legal grounds. I could get in trouble later, but I really want to do it. I really want to do it and I’m a board member and I’m your boss. Can you be loyal and just say, my way of being loyal is that I’m not going to say anything.

Allen: No. I think your duty is to actually say something. They can take your advice or not, but I think the attorney’s duty is to just tell them what the law is, and take the advice or not. Not everybody follows their attorney’s advice…

KSN&C: Exactly.

Allen: …and so, the duty is to just put it out there. That’s the way I thought. It’s a tough predicament to be in.

KSN&C: Sure.

Allen: When you’re trying to please; when your client is more than one person.

KSN&C: And of course, principals and school administrators run into that all the time. We’re not really sure who our boss is. There seems to be a thousand of them.

Allen: Right. You’re hired by the site-based council, the superintendent completes the process…

KSN&C: Neither of whom are really our client. Our client is the children and their best interests, even in the face of adults who may disagree about what their best interest is…

Allen: And I think attorneys, in general, who represent organizations are in a tough position because…you know, if someone in the school district doesn’t do what they’re supposed to do, they can keep working. They may get a slap on the hand, and whatever. But if an attorney doesn’t, their livelihood is at stake. And it may be that way, to some degree, for teachers, because they can get their certificates revoked. But the only person who is legally obligated to report an educator for misconduct is the superintendent. So there probably aren’t that many reports of teacher misconduct that don’t come from the top. There’s always things against attorneys; anyone can make [a complaint] against an attorney.
KSN&C: So, I want to do something, as a board member. You don’t think it’s in my best interest. You don’t advise me against it. I go ahead and do it anyway. It doesn’t turn out good for me. Can I then, take you to the Bar Association, and get you in trouble for not telling me the bad news.

Allen: Yeah…that would go to the Bar Association and they would have a disciplinary hearing

KSN&C: And they could take your…

Allen: License. Probably not for something…

KSN&C: Yeah.

Allen: …but they do. They list those things…

KSN&C: And if you get two or three of those, they could take your license, I suppose.

Allen: Sure. So, I’ve always looked at it that way. This is my livelihood. Teachers can go from place to place, but if I can’t practice, I can’t practice at all…
When she was working for the Educational Professional Standards Board, Allen became an expert on teacher ethics and taught the topic nationally over the past decade. In her view it would be a big problem for her to have taught others how to behave and then not behave ethically herself.
I asked Allen to imagine that Fayette County had not outsourced legal services and that she was advising a successor in Fayette County. I asked her what she would tell them.

Allen: Wow. It’s such a big job. I think the thing I would advise a successor would be to work on establishing a relationship with the board [as their counsel]. And, you know, I did that initially. It was a little difficult, but I did... And keep a straight dialogue open between the board and the attorney. Find out what they are wanting; what they see as your role as their attorney; defining those parameters beyond what’s in the job description.

KSN&C: How do you build a relationship with a board that maybe doesn’t look to you for leadership?

Allen: I think, yeah. I think that may be a problem. And I think that they really have to look at their board attorney as a legal leader. That’s why they have them there with a doctorate and some expertise…

KSN&C: Uh huh.

Allen: You know, with my experience, Amanda Ferguson is a really inquisitive – she really has a good keen mind that reasons through issues and poses questions. And she would like to have those things looked at. That was her way of doing things, though that was different for a board member, I think, and…

KSN&C: You didn’t find that to be the norm?

Allen: No. No. But I think it’s a good healthy way to utilize your board attorney. I don’t think they only need to deal with the superintendent and then the superintendent pass that information along. I don’t think you should deal with them in a closed session only. I think there should really be a dialogue…
But $200,000 has bought Allen a new career – one where she’s the boss and can call her own shots. Also her office space atop a historic downtown Frankfort building is just too picturesque to work in. I think I would spend all my time looking out of the windows.

But that’s not all.

Allen is also opening a restaurant called Bistro 241, in March. This is an old itch of Allen’s from her days in the kitchen with her father who was a mess sergeant in Germany and was always teaching her something new to cook. The Bistro 241 concept is fine dining in the upscale southern tradition with live jazz. She is teaming up with a classically-trained local chef to create a menu that includes chicken and waffles – which, she tells this Midwestern boy, is eaten with syrup. Home-made pastas are part of the deal, and of course, grits. Allen considers herself to be a grits connoisseur. On Main Street, Bistro 241 will seat about 50 for dinner in 1,900 square feet and a courtyard. The restaurant will feature monthly displays of art from local artists.
It came as no shock whatsoever to learn that the Allen Resource Group also does Human Resource consulting and investigations. Allen believes the quality of consultation available to school districts sets the bar so low it “will give you the Willies.”