Updates to the Petrilli Chronology

I'll be updating the Peggy Petrilli Chronology over the next week or so.

Here are some of the new items:

Aug 22, 2007 – Superintendent Stu Silberman meets BTWA parents

Aug 27, 2007 – Petrilli’s resignation letter states, in its entirety, “I hereby resign my position in the Fayette County Schools.” with no effective date.

Handwritten, with Walther and Allen’s initials – “(3) Ms Petrilli will not apply or employment with Fayette County Schools at any time in the future.”

Aug 28, 2007 Email from Petrilli’s original attorney Jeff Walther to Brenda Allen contains Petrilli’s public statement and this:
“Given that Peggy is still an employee, consider whether the statement ought to be released by the district.”

Dec 19 – Petrilli and attorney Jeff Walther meet with Silberman

Feb 8- Verified Complaint filed

Feb 8 – Judge James D Ishmael randomly assigned to the case

Mar 3 – Answer to Plaintiff’s Complaint
“…Plaintiff was never discharged, or threatened with disciplinary actions, nor forced to resign…”
“Plaintiff made admissions of fact contrary to the legal position she has taken in this litigation on the issue of race discrimination, constructive discharge and/or retaliation…”

Mar 7 – Plaintiff requests production of documents

Mar 21 – Plaintiff served Responses to Requests for admissions

Mar 26 – Letter from McNeill to Golden

Apr 1 – Letter from Thompson to McNeill

Apr 2 – Letter from McNeill to attorney Melissa Thompson (of Golden & Walters)

Apr 22 – Plaintiff Peggy Petrilli’s Answers to Interrogatories and Responses to Requests for Production of Documents

Apr 29 – Plaintiff served Answers to Interrogatories and Requests for Production of documents

Apr 29 – Plaintiff served Supplemental Request for Documents

Apr 30 – Plaintiff asks Defense for Response to Interrogatories…Documents

May 12 – Plaintiff files Motion to Compel

May 12 – Plaintiff asks Leave to File Amended Complaint and “permissive joinder” of Brenda Allen (allege civil conspiracy)

May 14 – Defendants Oppose Motion to Amend
“The plaintiff is attempting to gerrymand history by connecting activities concluding after her resignation from her post in August 2007 as a causal basis for her suit filed in February.”

May 14 – Defendants Reply to Motion to Compel – given volume of requests, requests 30 days after May 16th hearing to comply.

May 15 – Defendants Response in Opposition to Motion to Amend Complaint

May 16- Hearing on Motions

May 19 – Orders issued on Court hearing

Plaintiff’s Motion to Compel SUSTAINED – 30 days after May 16th

Plaintiff’s Motion for Leave to File Amended Complaint SUSTAINED over objection

May 19 - Plaintiff’s First Amended Complaint Filed
“The Defendant [Brenda Allen]’s investigative report, dated April 23, 2008, is evidence of practice, custom and habit of the Fayette County Board of Education.”
“The investigative report…was an attempt by the defendants to manufacture evidence…”

May 20 - Plaintiff served First set of Interrogatories and Requests for Production of Documents on Brenda Allen

May 30 Letter from Thompson to McNeill – Plaintiff’s plan to depose: Stu Silberman, Carmen Coleman, Brenda Allen, Jock Gum, Jessica Berry, Alva Clark, Bob McLaughlin and Alice Weinberg.

June 2 – Defendant’s Motion to Dismiss Claims Raised in Amended Complaint and to Dismiss Brenda Allen as a Defendant

June 2 – Defendant’s Memorandum in Support of Motion to Dismiss Claims Raised in Amended Complaint and to Dismiss Brenda Allen as a Defendant.
“…Brenda Allen…is entitled to immunity in both her official and individual capacities…”

June 5 – Plaintiff’s Response to Defendant’s Motion to Dismiss Claims Raised in Amended Complaint and to Dismiss Brenda Allen as a Defendant

June 6 Hearing

June 9 - Defendant’s Answer to First Amended Complaint

June 9 – Defendant’s Motion to Compel Complete Responses to Requests for Admissions

June 9 – Defendant’s Motion to Compel Full answers to Interrogatories and Request for Production of Documents

June 12 – Plaintiff’s Response to Defendant’s Motion to Compel Full answers to Interrogatories and Request for Production of Documents and Defendant’s Motion to Compel Complete Responses to Requests for Admissions

June 12 - Reply to Plaintiff’s Response to Motion to Compel Full answers to Interrogatories and Request for Production of Documents and Production of Documents and Requests for Admissions

June 13 – Hearing

June 16 – Plaintiff served Supplemental Response to Interrogatory

June 17 – Hearing

June 20 – Letter from Thompson to McNeill

June 26 – Plaintiff’s Second Motion to Compel

July 1 – Defendant, Stu Silberman’s Answers and Responses to Plaintiff’s First Set of Interrogatories and Request for Production of Documents. Responds to discovery

July 3 – Defendant, Carmen Coleman’s Answers and Responses to Plaintiff’s First Set of Interrogatories and Request for Production of Documents.

July 3 - Defendant, Board of Education, Answers and Responses to Plaintiff’s First Set of Interrogatories and Request for Production of Documents. Responds to discovery

July 7 – Motion to Limit Duration of the Plaintiff’s deposition Defendants proposed “an extremely long day.”
Plaintiff’s asked for limitations of “one day of seven hours.”

July 7 – Supplement to Plaintiff’s Second Motion to compel
“Defendant’s answers to this discovery provided the Plaintiff with little to no information about the key events.”
“Defendants have stated that there were threats to picket the school, call the media and report matters to the Kentucky Department of Education.”

July 9 – Defendant’s Response to Plaintiff’s Second Motion to compel

July 9 - Defendant’s Response to Plaintiff’s Motion to Limit Duration of her Discovery Deposition.

July 10 – Defendant’s Response to Plaintiff’s Supplemental Motion to Compel

July 10 - Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Second Motion to Compel
Defense made “no serious attempt to respond…”

July 18 – Plaintiff’s Notice of Cancellation of Videotape Depositions

July 21 – Defendant’s Clarification of Notice of Cancellation

July 23 – Defendant’s Reply and Objection to Plaintiff’s Second Motion and Supplemental to Second Motion and Supplemental to Second Motion to Compel Answers and Interrogatories and Request for Production of Documents.

July 23 – Plaintiff, Peggy Petrilli’s Supplemental Answers to Interrogatories and Responses to Requests for Production of Documents

July 24 – Hearing

July 25 – Notice of Statements Filed Under Seal for In Camera Review

July 30 – Defendant’s Notice of Videotape Deposition and Subpoena Duces Tecum
Petrilli Deposition set for Aug 18, 9 am at Golden’s office

Aug 1 – Notice of videotape Deposition for Stu Silberman with Request for Production of Documents
Silberman deposition set for Aug 28, 9 am, at Golden’s office

Aug 1 - Notice of videotape Deposition for Carmen Coleman with Request for Production of Documents
Coleman deposition set for Aug 27, 9 am, at Golden’s office

Aug 1 - Notice of videotape Deposition for Bob McLaughiln with Request for Production of Documents
Mclaughlin deposition set for Aug 27, 9 am, at Golden’s office

Aug 1 – Notice of videotape Deposition for Jock Gum with Request for Production of Documents
Gum deposition set for Aug 26, 9 am, at Golden’s office

Aug 4 – Plaintiff’s Motion for Reconsideration or, in the Alternative, Motion for Clarification

Aug 5 – Production of Documents Pursuant to Court’s Order

Aug 14 – Defendant’s Response to Plaintiff’s Motion for Reconsideration or, in the Alternative, Motion for Clarification

Aug 14 – Defendant’s Response to Plaintiff’s Production of Documents Pursuant to Court Order Regarding Brenda Allen in her Individual Capacity to dismiss Allen as a Defendant

Aug 15 Hearing

Aug 20 – Defendant’s Notice of completion of Videotape Deposition, Plaintiff, Peggy Petrilli

Aug 21 – Notices of Deposition for Jessica Berry, Alva Clark, Buddy Clark

Aug 22 – Amended Notices of Videotape Deposition and Subpoena Duces Tecum
Alva Clark, Sep 10, 9 am, at Golden’s office
Buddy Clark, Sep 9, 9 am, at Golden’s office
Jessica Berry, Sep 9, 9 am, at Golden’s office

Aug 29 – Defendant’s Notice of Completion of Videotape Deposition of Plaintiff, Peggy Petrilli
Began Aug 18; Continued Aug 26, scheduled to resume Sep 10

Sep 2 – Plaintiff’s Motion for Order, Pursuant to CR 30.04 and CR 37.01 (d), Stopping Any further harassment During Depositions and Motion for Costs.

Sep 2 - Defendant’s Renewed Motion for Summary Judgment on Defamation Claims Against All Defendants
“Petrilli herself also requested the investigation”

Sep 2 – Motion for Summary Judgment on Behalf of Defendant Carmen Coleman in Her Official and Individual CapacitiesSep 4 – Defendant’s Response to Plaintiff’s Motion for Order, Pursuant to CR 30.04 and CR 37.

Sep 5 - Hearing
Judge tells attorneys to behave - gives them five bucks and sends them to get a milk shake.

Silberman Withholds Documents in Open Records Request over Legal Services in Fayette County

Urges board to Act in Secrecy
in Removal of Legal Services

Links to Petrilli Case

Silberman Claims Harassment
at the Hands of a Board Member

In the aftermath of the Fayette County Board of Education's decision to outsource all of its legal services this past March, KSN&C was contacted by FCPS Board member Amanda Ferguson.

Ferguson wondered why KSN&C hadn't stated an opinion on the issue. I explained to Ferguson - who many will recall defeated me in the last school board election, now making her "my" neighborhood board member (indeed, we live on the same street) - that I was simply too busy with other matters at work to look into it. She asked me to take a look at the Hanna Resource Group report, and let her know what I thought.

I thought the report reeked of bias.

The Hanna Group was apparently selected by Superintendent Stu Silberman -not the board - to provide an opinion on the value of outsourcing legal services for the Fayette County schools. Silberman was the main contributor of information to that report. The "researchers" never talked to their clients nor the existing legal services team - a condition that might be deemed unethical in other business circumstances. From the outset it was clear that Hanna is predisposed to outsourcing and evidence suggests they are invested in making recommendations in one direction only. This, of course, is a huge bias.

Side Note: Did anyone else notice in the Herald-Leader article this week about the Lexington Urban County Government and the Kentucky League of Cities, the ethical question raised when one party bids for services while hiding that fact from the existing provider - therefore failing to consider all pertinent information. Apparently in the insurance world, that's unethical. Why wouldn't the same be true of the Hanna Resource Group's study which was deliberately hidden from Brenda Allen? Aren't they the same ethical questions related to under-the-table dealings?

After reading the largely unsubstantiated material in the report, I formed the opinion that there must be another motivation for this effort. It all smelled to me like someone went out and bought themselves a report that would say what they wanted it to say. I suspected it had more to do with getting rid of someone in a way that would not come back to haunt the district. Specifically, I imagined that it was really an effort to eliminate "a position" because that's easier than attempting to dismiss the "person" of the Board Attorney Brenda Allen. That requires cause and it was not at all clear that the Board had cause. The district would have been better off to save the money it spent on the Hanna Report and just make the decision, except that board needed cover. Attorney's usually know when they have been wronged and some react.

After reviewing the material that follows, I remain unconvinced that the School Board's decision to outsource al legal services was really all about saving the district money, the best interest of children, or anything other than a personnel matter. Perhaps it is about supporting one's superintendent. At least one board member believes it's really about a "thin-skinned" superintendent and what happens when an employee gets on Silberman's bad list. Owing to my personal regard for her, I would like to think that Board Chair Becky Sagan was trying to make something better, but I'm just not sure. From her position as chair, she drove the process. And at one point, apparently saw the matter as a personnel issue, while treating it publicly as a reorganization of legal services.

In an effort to separate fact from speculation in Silberman's (or was it Sagan's) hurry-up effort to outsource all FCPS legal services, KSN&C submitted an open records request:

Under the provisions of Kentucky Revised Statute (KRS) 61.870 and the Open Records Act (ORA) I respectfully request inspection and copies of the following public documents:

Any and all email or other written or recorded materials

• from or to Superintendent Stu Silberman and/or any Fayette County Board of Education member or members
• from or to Superintendent Stu Silberman and Lyle Hanna and/or any representative of Hanna Resource Group
• from or to Superintendent Stu Silberman and Brenda Allen

between the dates of January 1, 2010 and April 7, 2010 pertaining to legal actions or legal services in the Fayette County schools.

Included in this request is a keyword search of district email servers including the terms, "Brenda Allen," "legal," "lawyer," "outsource," "Lyle Hanna," "Hanna Resource Group," "Amanda (Main) Ferguson," and "Peggy Petrilli."

In response, KSN&C received about 150 pages of documents, including emails, the very sketchy Hanna Resource Group report, a supplementary Hanna report intended to fill in gaps left out of the original report (and for which Hanna charged extra), and billing statements.

The district withheld an unknown number of documents, and redacted others, claiming attorney-client privilege under KRS 61.878 (1) (a), (j), & (l), and that some information "is of an extremely personal nature." Silberman wrote that the bulk of the withheld and redacted documents "reveal the identity of certain employees and their medical and mental health issues" but also "reflect legal advice." As the record will show, much of the withheld material is not about employee medical issues. It just plain embarassing.

I would not normally argue with the district's right to withhold the kinds of documents described if I was not already in possession of some documents - obtained elsewhere - and therefore know that they clearly do not involve personally identifiable medical information, but were withheld none-the-less. The paperwork showing that it was Becky Sagan who engaged the Hanna Resource Group, if it exists, was withheld by the district. The withheld material that I am aware of makes some elected officials and the superintendent look bad, but that's about it. I wondered if this was all about appearances.

KSN&C wrote back and asked Silberman to read 08-ORD-146 - where the Attorney General overuled EKU's heavy redaction of documents requested by the Eastern Progress - and asked him to reconsider his redactions and whitholdings. Silberman decided instead to stand by his original decision.

KSN&C has no quarrel with the attorney-client exception in the Open Records law, but that particular exception does make it difficult to investigate district issues involving attorneys or legal services. Silberman suggested that I should "provide specific information" about the withheld documents so that he might "confirm the adequacy" of the district's search.

That's not a bad idea.

KSN&C asked Brenda Allen to comment on the story, but as she is (technically) still employed by the FCPS Board until June 30th, she declined, citing her ethical obligations.

KSN&C learned that connections to the Petrilli case do exist but run deeper than originally suspected. Whatever fissure occurred between Silberman and soon-to-be-former Board Attorney Allen apparently goes all the way back to that infamous August 23, 2007 meeting Silberman and then Director Carmen Coleman held with former Booker T Washington Academy Principal Peggy Petrilli -without counsel present - which ultimately led to a costly and embarrassing lawsuit. KSN&C Backstory.

Sources tell KSN&C that apparently Allen let it be known that the meeting might have gone a lot better, and not resulted in legal action at all, if it had been handled more competently by an attorney.

Ouch. Some think that's where Allen ended up on the "bad list."

To make matters worse, Allen raised questions about the legality of Silberman's contract in June 2009. Apparently his contract contains what attorneys call an "evergreen clause." An evergreen clause allows for an automatic one-year extension of his contract unless the board specifically votes to the contrary. Evergreen clauses are contrary to state statutes requiring a majority of the board to actually vote to extend a superintendent's contract. In the business world, evergreen clauses are used by vendors to capture "easy money" from customers who are not paying attention. Legal opinions may differ on whether that could invalidate a superintendent's contract. But Silberman's contract also contains a "savings clause." That would permit the rest of his contract to remain in force should the evergreen clause ever be challenged and thrown out.
One KSN&C reader claimed that Silberman rejected some of Allen's legal advice pertaining to the implementation of student immunization policy in Fayette County, an issue KSN&C did not explore.

Here's what we know so far:

At some point, there was a concern on the board that some members had access to legal information that others did not have. In an attempt to remedy the situation, the Board wrote into Allen's performance evaluation that she was only to deal with the board as a body. This would become an issue later when Silberman and Sagan met with Allen without other members present or even aware of the meeting.

The board supposedly acts under their own code of conduct called Ground Rules. I'm not at all sure they are enforceable upon an elected official but its how the Board commits itself to act. The ground rules purport to encourage Amanda Ferguson to ask her "tough questions." This has been her MO. Indeed, “She always does her homework and isn’t afraid to ask questions,” according to Mary Browning Wright, the district’s chief operating officer. But in this case, her questions only got her marginalized and acccused of harassment by the superintendent. The ground rules seem to have been skirted by Silberman and Becky Sagan as well.

FCPS BOARD OPERATING PRINCIPLES
/GROUND RULES

Ø We will, as a board team, be asking tough questions on behalf of students and community, in anticipation of thorough answers that enable us to continue our forward progress.
Ø We will show respect for fellow board members, superintendent, staff and public; we will not name individuals for any reason other than positive public recognition.
Ø There will be no surprises from the board to the superintendent or from the superintendent to the board; further, there will be timely sharing of information from the superintendent prior to any board meetings to reduce any element of surprise
or lack of time for sufficient preparation.
Ø It will be okay for our board team to disagree as long as it is done respectfully; however, the decision reached by the team is the one that moves us forward.
Ø The ONLY agenda to be brought to the table is the one that is about student
achievement and success. IAK
Ø Committee input on key topics, with board representation on such, is crucial to
our ability to operate effectively on behalf of students and community.
Ø Everybody on the board will have an opportunity to give input on all topics, while at the same time recognizing the need of others to also give input.
Ø Information that is shared with one member of the board team will be shared
with all members of the board team.
Ø Questions from the board (whether at meetings or in daily operations) will be
directed through the superintendent for appropriate follow through.
Ø Confidential information is just that: confidential information.

The following timeline of events is constructed from official documents, emails and other information gained from Ferguson and other confidential sources close to the Board. Readers are encouraged to review the material in light of what you already know about the district and its operations to form your own opinions of what the facts really mean.

Ask yourself -

• Do these ground rules describe how the FCPS Board of Education really operates?
• What was the true motivation for the quick study and quick decision on legal services?
• Was it a sober consideration of what's best for the district, or was it a rush to meet an April deadline for the non-renewal of employees?
• Is the Petrilli case still casting shadows over district operations?
• Was the Hanna Report reflective of solid scholarship, or a biased hack-job intended for a specific purpose?
• Was this truly a reorganization of legal services or just a way to fire a disfavored employee?
• Did Ferguson's frustrations rise to the level of harassment, or is Silberman just thin-skinned?
• Does this event reflect, as Ferguson suggests, that this is just what happens to employees who get on Silberman's bad list?
• Did Sagan have some grievance against Allen that we don't know about?
• Is this all just politics? ..the unsightly underbelly of local decision-making, which like sausage-making, one never wants to have to watch?

You decide. [Note: KSN&C comments in bracketts.]

Jan 22-24: KSBA Conference in Louisville.

Jan 24: FCPS Board Chair Becky Sagan asks Silberman "Can we explore the concept of outsourcing our legal work instead of having an in-house attorney?"

Jan 24: Stu says he'll look into it.

At some point: Silberman and Sagan discuss the use of an outside consultant.

Feb 4: Silberman learns that FCPS had lost the KDE review of Brenda Allen's report on Peggy Petrilli. FCPS participated in the KDE process, Petrilli did not.

Feb 8 Silberman to Sagan: "We have done the analysis of our legal costs and will be getting some additional information to you after consultation with an outside group as per our discussion."

Feb 8 Sagan to Silberman: ""...let me know about the legal department follow up as soon as possible."

Feb 8 Silberman to Sagan: "You and I are set up to meet with Lyle Hanna next Tuesday, February 16th at 12:30 p. m. Please let me know if this is ok."

Feb 8 Sagan to Silberman (Sensitivity = Private): "Yes this is fine. At your office?" [The meeting is ultimately moved to noon.]

Feb 24 Silberman to FCPS Board (Subject = CONFIDENTIAL) Silberman asks board members to keep discussions of legal services "COMPLETELY CONFIDENTIAL" because he does not want "to create any issues or anxiety..." Silberman told the board that he already authorized the Hanna Resource Group to get started but "wanted to make sure I ran it by you." He tells the board to hold March 15th open for a possible board meeting.

Feb 24 FCPS board member Amanda Ferguson responds to Silberman: "I think you know I feel this is the wrong thing to do." [Ferguson told KSN&C that this was "the initial e-mail I received about possible outsourcing and the first I has heard anything about it. I responded it was the wrong thing to do, and Stu knew it, because there are always legal issues that come up and I often consult the board attorney myself about the legality of programs, procedures, etc. I never supported hiring a consultant and a board vote was never taken. Stu signed the contract."]

Feb 24 Silberman to Ferguson: "I think we have a fiscal responsibility to check into this. It may come out that we need to leave things as they are."

FEB 24 REDACTED DOCUMENT in the same string as above. Silberman to Ferguson: "I have answered everyone's questions and issues from the KSBA conference. - redaction - I am very sorry you feel this way." [This is a confidential exchange between the superintendent and a board member only. There is no attorney-client privilege and it's hard to imagine that in mid dispute over legal services Silberman suddenly discussed an employees private medical information. Yet, it is suspiciously redacted.]

Feb 24 FCPS Board member John Price to Silberman: " I am OK with moving forward with this study. How long before we know if we will be meeting on 3-15. I have already scheduled some appointments on that day that I might need to move."

Feb 24 Silberman to Price: "It looks like we will have to do it on this day at 4 or 4:30. I could check with [Board member] Kirk [Tinsley] to see if he could do it later in the evening. Is there one time better than another for you? I really appreciate the support on this John." [He really appreciates his support...? Why?]

Feb 24 Price to Silberman: "I have an appointment @ 5, which I will see if I can move to another day."

Feb 24 FCPS Board member Melissa Bacon: "I am fine in exploring this further to see the feasibility of outsourcing our legal services."

Feb 25 Silberman to Tinsley: "...Hey, did you get my email about the study on legal services? You ok with that moving forward?"

Feb 25 Tinsley to Silberman: "Yes sir."

March 10 KEDC Ex Dir Stan Riggs to Silberman: Riggs outlines a reasonable way for in-house counsel to function and apparently supplied the Hanna Resource Group with anecdotal data which they used in their report.

Mar 11 Silberman to FCPS Board: "Remember to hold March 15th at 4 p.m. for a special board meeting work session in Conference Room A. I will confirm this with you tomorrow."

Mar 11 Ferguson to Silberman: "Has notice of this gone out to the media? Does one have to?"

Mar 11 Silberman to Ferguson: "No, one hasn't gone out yet. It will go out tomorrow if we end up having it."

Friday March 12 1:00 PM: Silberman and Sagan meet with Allen without other Board members being informed of the meeting, apparently in violation of the Board's own code of conduct. A blind-sided Allen is made aware for the first time that elimination of her position is under active consideration by the board.

Mar 12 at some point after 1PM, there was another meeting between Silberman and the legal staff. The staff reported to Allen that they were told they should "use up their leave" could "use [Allen] as a reference" and told Alen they had the clear impression they were being let go.

Mar 12 1:52 PM Silberman to FCPS Board: Confirming special board meeting for Monday. "I called Becky this morning to see if she would sit in with me and she and I met with Brenda to let her know about the study and that we would be having the special meeting on Monday. After that meeting I met with Carla and Ashley from that office to let them know too."

Mar 12 3:33 PM almost-former FCPS Board Attorney Brenda Allen to Silberman: WITHHELD DOCUMENT. Allen references her 1PM meeting with Silberman and Sagan and requests "all of the documents provided to the outside consultant...as quickly as possible..." so that the board can receive "complete and accurate information in order to make an informed decision on Monday." Allen states that "our costs this year are the lowest they have been in five years."

Mar 12 3:48 PM Ferguson to Silberman: "Has the notice gone out for the special meeting on Monday? It is open to the public, right?"

Mar 12 4:08 PM WITHHELD DOCUMENT. Ferguson to Allen and Silberman copied to FCPS Board. Ferguson asks for advice on "the proper procedure for abolishing the board attorney position." She expressed frustration that "the entire board was not able to attend...nor even advised that it was taking place."

Mar 12 4:52 PM FCPS Secretary Cheryl Neal to a distribution list including Brenda Allen: Attached notice of special meeting.

Mar 12 4:53 PM WITHHELD DOCUMENT. Allen responds to Ferguson. [KSN&C is omitting her legal advice to Ferguson.]

Mar 12 5:30 PM WITHHELD DOCUMENT Ferguson to Silberman and FCPS Board: "Stu, Please tell me why these employees were told they would not be renewed. Is Brenda supposed to perform her duties with no assistance in the future or is there already an assumption as to how the board will vote and that the board attorney position will be abolished?"

Mar 12 6:26 PM REDACTED DOCUMENT Silberman to FCPS Board: [Silberman redacted a paragraph that mentions Allen by name but has nothing to do with legal work product or privileged information so far as I can discern. In other documents he does not redact where Allen's name is mentioned. It made me wonder if there were some thing he wanted to reveal - and others he did not - more so than any consistent basis for redaction.] Below Silberman outlines the information he was providing to Allen.

The redacted paragraph states, "In terms of the documents that Brenda requested, she asked for two things. She wanted a copy of the numbers that showed the costs for the department and a copy of the report from the consultant. I still do not have the copy of the report as it is not yet finalized. I am to receive that tomorrow and will send it to the Board, with a copy to Brenda, as soon as I get it. I have hard copies of the numbers that summarized the costs in the department but have been in meetings all afternoon. I will try to send them to Brenda tonight as I have been in meetings all afternoon. "

Mar 12 6:39 PM WITHHELD DOCUMENT Ferguson to Silberman and FCPS Board: "Why is this confidential to board members?"

Mar 12 7:18 PM REDACTED DOCUMENT Ferguson to Silberman and FCPS Board. [Here's what the district redacted:] "I don't understand at all why this would be confidential to board members. If Brenda, who, as board attorney, handles personnel matters for the district, has been misinformed by 2 employees about their employment status, why wouldn't you want to clarify that information for her?"

"I also don't understand why the board attorney and her staff were only given a day's notice of this meeting and proposal, and why it was not done with the entire board's presence, much less approval. Again, the board attorney is employed by the board, not the superintendent. It was my understanding as well that any discussions by board members with the board attorney were to be done as a whole. Furthernmore, it is in the board's own "code of conduct" that any information known by an individual board member should be known to all board members. As has happened before, the board chair was the only one privy to specific information. I find this inappropriate."

Mar 12 7:35 PM WITHHELD DOCUMENT Silberman to Allen and FCPS Board: KSN&C is omitting Silberman's response regarding Allen's advice. Silberman told Allen that he had hard copies of documents she had requested and he put them in the mail slot of her office door.

Mar 12 7:36 PM REDACTED DOCUMENT Silberman to Allen and FCPS Board: Silberman confirms that Allen was sent the special meeting notice at 4:52 PM along with everyone else. Then he states, "No one was trying to keep anything from you." [...which Silberman's February 24th confidential memo belies.] After the redaction he adds, "I can assure you that no decisions have been made at this point and to indicate differently would be totally incorrect and I hope this helps clear that up."

Mar 12 7:36 PM Hanna Resource Group's Nancy Skiba to Silberman and Lyle Hanna: Attached, final version of report, "Fayette County Public Schools Report on Feasibility of Outsourcing Legal Services."

Mar 12 9:01 PM WITHHELD DOCUMENT Allen to Silberman and FCPS Board: [KSN&C is omitting discussion of legal issue regarding whether the Board could take a vote on Monday night.] Later, Allen drives back to the office to pick up the documents.

Mar 12 9:15 PM WITHHELD DOCUMENT responding to 6:39PM Silberman to Ferguson: "It is in my best judgment to keep this information confidential among our board members at this time."

Stu

O O

>

\/..........

Mar 12 9:32 PM WITHHELD DOCUMENT Ferguson to Silberman: "No, you still did not really answer my questions. There is nothing in this e-mail that could be privileged information and I disagree with your "best judgment."I'm sure you are not pleased with my opinions on this matter and I fully expect the same treatment that others who disagree with or challenge you have received. It is such a shame that you are so thin-skinned and unable to be told you are wrong. You'll be glad to know I am seriously considering withdrawing from this year's race, if not resigning before then. But rest assured if I do, everyone will know exactly why."

[Emphasis added. Ferguson subsequently told KSN&C that this was not her best moment. She said, "I do regret my somewhat threatening statement...but I was very ticked off." Similar frustrations were reportedly expressed by Silberman who allegedly said to board members that if they were unhappy with his work he could go be Commissioner. If true, that statement must have come much earlier than March 2010. While his frustrations may be seen by some as petty, his considerations were real. Silberman was courted by KBE Chair Joe Brothers and others including me, to consider the Commissioner's position on at least two occasions.]

Mar 12 10:18 PM Silberman forwards the Hanna Report to the Board and copies Allen. "Please know that we will not be asking you to make any decisions Monday afternoon."

Mar 13 REDACTED DOCUMENT Sagan to Allen regarding the Employee Assistance Program.

Mar 14 REDACTED DOCUMENT Silberman to Allen: After a substantial redaction, Silberman is apparently responding to Allen's earlier questions about his meeting with her staff and whether an improper decision was made before the vote was taken. Silberman seems to verify the claims made by Allen's staff that they believed they were being let go. "The bottom line on all of this is that it is about the Board hearing a report about the potential for outsourcing legal services and depending on what the Board decides to do it could mean that your staff will need to be applying for other positions in our district. It has been my experience that employees in these types of situations want and need to know about these types of possibilities as early as possible along with having their questions answered."

Mar 14 10:19 PM Silberman sends the Board and Allen a revised final report from Hanna.

Mar 14 10:53 PM REDACTED DOCUMENT Silberman to Ferguson and FCPS Board. After a redaction..."I also have to tell you that I am feeling harassed by you ever since the matter of the potential of outsourcing legal services has arisen and I am asking that you please stop doing this to me." ?!!!

Mar 15 6:04 AM WITHHELD DOCUMENT Silberman to Ferguson: "Please know that I completely understand that you are totally entitled to your opinions and that we will not always agree. I do not have a problem with that and will always continue to treat you with dignity and respect. I understand that you have to do whatever it is you feel you need to do with your membership on the Board but I am once again asking you to please not harass me."

March 15: WITHHELD DOCUMENT Allen responds to Hanna Report. Points out flaws and says it was "conducted in secret" and that some of Hanna's recommendations could not be accomplished legally.

Mar 15 Ferguson to ...let's say lots of folks: The Board, the cabinet, FCEA, the Prichard Commiteee, the Herald-leader... "I hope you will make every effort to attend this special meeting today. It pertains to something I consider a very important decision for our district, whether or not to abolish the position of board attorney." It is rumored that Silberman subsequently told principals that there was no need to attend the meeting but that is not confirmed.

Mar 16 - a month and a half after the fact - from Silberman to FCPS Board: "Here is the letter that we got from Terry Holliday regarding the Petrilli investigation for your review. There is an article in the newspaper about this today." Attached letter stamped received Feb 4.

Mar 17 Ferguson to FCPS Board and Silberman: "Please tell me if I am correct that no board members spoke with Mr Hanna during his study of the board attorney position."

Mar 17 WITHHELD DOCUMENT Sagan to Allen: Sagan moves to keep Allen out of the board's upcoming closed session writing to Allen, “…I want to mention some serious concerns I have. Specifically, it is clear, as I mentioned at the meeting, that you have a personal interest in the outcome of the Board’s consideration of this issue and your personal interest necessarily prevents you from giving us unbiased advice about this issue.”

Mar 17 REDACTED DOCUMENT Allen to FCPS Board and Silberman: After redaction... Allen states that she feels "incredibly at peace that I have met my obligation" and said "it is time to move to a new [legal services] model because it was your decision to make."

March 18: KSN&C breaks news that Peggy Petrilli was cleared of testing allegations due to insufficient evidence by KDE. Asked if the dismissal of charges for lack of evidence lent support to Peggy Petrilli's argument - that the charges were trumped up by FCPS to begin with - KDE spokeswoman Lisa Gross declined to speculate. "It would be inappropriate for me to speculate on the veracity of the charges," she said.

Mar 18 Ferguson to Silberman: Renewing her request to know if any board members participated in the study and asking about the cost of the report.

Mar 18 Silberman to Ferguson: Outlined cost estimates of "$9K, no more than $10k." "Amanda, you would have to get the information from each individual" regarding the study.

Mar 18 Ferguson to Silberman: "Do you mean you don't know or you won't tell me?"

Mar 18 Silberman to Ferguson: "I don't know...."

Mar 18 Silberman to Ferguson: "It just hit me that Becky and I did call Lyle after the meeting Monday where we heard his report. Since there were questions raised we told him that we wanted him to review all of the feeedback received and asked him whether or not he had enough time to complete that by our next regular board meeting. I am not sure if this is what you were asking about or not."

Mar 18 Silberman to FCPS Board: Silberman reported Lyle Hanna would have a final copy tomorrow.

Mar 18 Sagan to Ferguson: "I was not interviewed by Mr Hanna..."

Mar 18 4 PM Silberman calls Allen: According to Allen, Silberman informed her that a closed session would be added to the Mar 22 agenda to discuss the disciplining of an individual employee, per the request of Becky Sagan. [!!!????]

Mar 18 Allen calls Silberman: According to Allen, she asks Silberman if she is the employee to be disciplined. Silberman tells her "Yes." [The disciplining of an employee requires cause. This is very different from the way the board portrayed its decision to outsource FCPS legal services as merely being for the good of the district, saving money...and all that. If that were true, it's hard to understand why Sagan was seeking disciplinary measures against Allen. ]

Mar 19 Lyle Hanna to Silberman: Copy of responses to questions raised by the board. Silberman forwarded to the FCPS Board.

Mar 21 Bacon to Ferguson: "I did not speak to Mr Hanna..."

Mar 21 Silberman to FCPS Board: This is a brief summary of tomorrow's meeting which included consideration of outsourcing legal services and a potential vote on the issue.

Mar 22 WITHHELD DOCUMENT Allen to All [Board members]:

Thus, Allen goes on medical leave and warns the district to keep their personnel off her property. [Remember, during the Petrilli trial, testimony was given that Carmen Coleman and Fabio Zuluaga were dispatched to talk to Peggy. Sounds like Allen was done talking.]

Mar 22 Board Meeting Lyle Hanna reports (with my initial reaction to the report in parentheses):

• Lots of folks outsource counsel
• FCPS spends $500,000 to 600,000 per year [Don't miss the fact that this is hugely imprecise!!!??? and leads me to believe they barely looked at actual numbers. This is a red flag for sloppy research. ...and what you get when you order a three-week study. Watch where he says the counsel "spends numerous hours." What does that mean? Ten or a million?]
• Hanna enumerates a long list of important responsibilities of counsel, many of which, if handled improperly, can cost the district much more money.
• Says in house costs FCPS $253,000
• FCPS spends more per year for outsource counsel right now - $284,000
  Reports methodology as interviews with "representatives" from Boone, Daviess, Jefferson, Kenton, Oldham and Warren Cos. [Who are these unnamed representatives? Reports that only Fayette, Jefferson and Oldham presently have in house counsel and they all outsource as well...but get this. Then he says Owensboro recently went in house too, but he didn't include them because it's too soon to have meaningful data on them. So what? Where does he present meaningful data on any of them? Another tip off for bias. Call 'em up. I'll bet a nickel they did it to save money. I wonder if Hanna called them but didn't like the answer they got...and wrote them off.]
• Reports those districts are "largely satisfied" [Ha! Again...absolutely no data! But he adds, they report higher legal fees!]
• Reports JCPS = $6 per kid; Oldham = $15; Fayette = $17. [Allen says Hanna included expenses in Fayette Co that were not included elsewhere - invalidating the findings. If true, she's right.]
• [Reports more meaningless BS without substantiation, and pulls average expenditures of $7 per child from the ether. AND although I'm sure he didn't mean to, made a fairly persuasive argunment that Jefferson County's operation is much more effecient, better serving the much larger district, utililizing a larger percentage of in house counsel. Using 31% outsourced and 69% in house, Jefferson County serves the greater population at roughly the same cost as Fayette County's smaller population - perhaps because - FCPS's 53% outsource / 47% in house model appears less efficient. Bring more inside.]
• Reports that is is possible to get services from lots of different sources.
• Then lists advantages....as being cost savings - which the report utterly fails to substantiate...and higher quality legal service - again, based on no data at all.
• Disadvantages...[because they had to find something, one supposes...] "some temporary loss of general knowledge"... [What a crock.]
• Recommendations...Outsource all legal services!? [Allen says some of the work Hanna recommended be done by in-house clerical staff must, in fact, be done by a lawyer.]

Mar 22 meeting excerpt as per Minutes:

Approval to Outsource Legal Services - Becky Sagan:

Last summer Board decided to look at the current evaluation for the Board Attorney – contacted KSBA to get sample evaluation documents – only three districts in Kentucky with an in- house attorney

KSBA Conference in January – director of KSBA talked about revamping their legal services After the KSBA Conference, proposed to the superintendent to look at the feasibility of FCPS outsourcing legal services

Lyle Hannah, Hannah Resource Group - employed to conduct a study on the feasibility of outsourcing legal services Board heard report during work
session

Lyle Hannah, Hannah Resource Group, gave a review of the report on the feasibility of outsourcing legal services. Hard copy of report included with the permanent minutes.

Amanda Ferguson - Concerns presented:

• Board Attorney and two staff members not contacted for the research project
• Board Attorney employed by the Board
• No discussions with Board members about the Board Attorney’s job duties
• Research project not put to a Board vote – never gave her approval

Lyle Hannah:

• Engaged by the Board Chair to do the study

Stu Silberman:

• Authority given by Board to enter into contracts up to $20,000.00 – both Ms. Sagan and I met with Mr. Hannah. 44 April 26, 2010

Lyle Hannah:

• Standard practice in a study like this not to talk to people in the positions – don’t know what the result of the study will be

Amanda Ferguson:

• My opinion - not practical

Melissa Bacon:

• This is a feasibility study.

Amanda Ferguson:

• Concerned about the method of calculating legal expenses – total cost of legal expenses of other districts – number of lawsuits filed

Lyle Hannah:

• Did not look at number of lawsuits

Amanda Ferguson:

• No way to know if your numbers for Fayette County are a result of the greater number of law suits filed against us

Lyle Hannah:

• Most likely the high cost is related to those law suits.

Amanda Ferguson:

• Superintendent praised and credited for success in Daviess County Only trial in this district last year direct result of Superintendent’s conduct

Becky Sagan:

• Nothing to do with the feasibility study

Amanda Ferguson:

• To me it does - Superintendent exactly why we need an in-house attorney

Becky Sagan:

• Talking about the feasibility of outsourcing legal services

Stu Silberman:

• Community has opportunity to save between $250,000 and $350,000 a year – need to be good stewards of community’s money

Amanda Ferguson:

• Definitely based on potential annual savings - points have been made regarding incorrect numbers and annual expenses


• Employee listed as part of Board attorney’s office, actually performing most of duties in another offices

Stu Silberman:

• Don’t think in question for this year – 100% this year

Amanda Ferguson:

• Board Attorney available 24 hours a day, seven days a week


• Concerns heard from administrators


• People less likely to seek legal guidance from outside counsel


• Greater legal expenses – minor matters not addressed


• Don’t want to spend one more penny than necessary – value of full time attorney can’t be quantified

John Price:

• Possibility of negotiating with KEDC


• Board members have to make very difficult decisions


• Focus - what and how to best spend resources


• Difficult decision - right decision to outsource legal services

Kirk Tinsley:

• Always about the kids


• Agree – outsourcing best business sense

Melissa Bacon:

• Echo what John Price said

Becky Sagan:

• In-house attorney a luxury

A motion was made by Kirk Tinsley and seconded by John Price to approve outsourcing legal services beginning July 1, 2010. The motion carried with a vote of 4 to 1 with Amanda Ferguson voting no.

Mar 23 Certified Letter from Silberman and Sagan to Allen: Written notice of non-renewal of her contract.

Mar 23 Herald-Leader reports

"The Fayette County Board of Education voted 4-1 Monday night to start out sourcing its legal needs in hope of saving $250,000 to $360,000 a year on attorney expenses. Board member Amanda Ferguson, who cast the lone dissenting vote, said that while outsourcing would save money, the district also would lose the advantage of having an in-house attorney available whenever needed."

Mar 23 Ferguson to H-L reporter Jim Warren: Clarifying..."I did not say that I think outsourcing legal services would save the district money. In fact, I fear that it will end up costing us more in the long run..."

Mar 24 Silberman to FCPS Board: Notifying Board of the non-renewal letter to Allen.

Mar 24 Silberman to Sagan and Price: Sent a scanned copy of the Allen nonrenewal letter for their files.

Mar 29 Invoice from Hanna Resource Group to FCPS for $9,900.

Mar 29 Second Invoice from Hanna for $1,675 "resulting from questions raised at board planning sesion." (What a racket.)

Apr 5 Silberman to FCPS Board: Informing the board of Hanna's final cost: $11,575.oo. (It may have been a low quality report but it certainly did the trick.)

Apr 5 KSN&C Q & A with FCPS spokeswoman Lisa Deffindall:

KSN&C: Has the superintendent made any comments about the report?

FCPS: I know that Stu talked with Jim Warren about the report, but the only comment that Jim quoted him on was "The board is looking for ways that we could best provide services most efficiently," Silberman said. "Some major private companies have done this same thing."

KSN&C: Is he satisfied with the quality?

FCPS: I don’t think the quality of the report was ever in dispute. Hannah’s firm is widely respected in Lexington and Louisville and has recently done similar studies for major Kentucky companies.

KSN&C: What did the district end up paying for it?

FCPS: $11,575

KSN&C: Also, is Stu concerned about how the timing of this looks in the wake of his request for Allen to produce a report on Petrilli, and KDE's recent exoneration?

FCPS: There is no link between these issues. The study was initiated in response to questions by the board chair. Apparently, when the board was looking at revamping the attorney evaluation process, she began calling other districts and found that very few school districts in Kentucky have in-house legal services. Then at the KSBA conference, KSBA was making a presentation about how they’re changing their legal services department at a cost savings and she began asking if the district’s existing model was the most cost effective. It was unrelated to the Petrilli situation.

June 30: Last day of Allen's contract with FCPS.

As my mother always taught her kids: "It's easier to stay on the good list, than it is to get off the bad list."

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.”

Troublesome Timeline

Inferring causality is a fundamental feature of human cognition that allows us to theorize about and predict future states of the world, or in some cases, reveal the motivations of the past. One of the ways humans do this is by the association of events in time, as links in a causal chain. A causal chain is a sequence of events leading up to some final effect, where each member of the sequence causes its succeeding member to come about.

So, the stumble causes the fall, that causes the fracture, that causes the visit to hospital.

And while it is not always clear that causation can be derived from linear chains of discrete events, maybe it can be if the facts are verifiable.

So, KSN&C asked FCPS spokeswoman Lisa Deffendall:

Is [Fayette County Superintendent] Stu [Silberman] concerned about how the timing of this [outsourcing study] looks in the wake of his request for [Brenda] Allen to produce a report on Petrilli, and KDE's recent exoneration?

Deffendall told KSN&C, "There is no link between these issues. The study was initiated in response to questions by the board chair. Apparently, when the board was looking at revamping the attorney evaluation process, she began calling other districts and found that very few school districts in Kentucky have in-house legal services. Then at the KSBA conference, KSBA was making a presentation about how they’re changing their legal services department at a cost savings and she began asking if the district’s existing model was the most cost effective. It was unrelated to the Petrilli situation.

Still, a rudimentary timeline might cause some to wonder if the public got the full story.

Jan 22-24: KSBA Conference in Louisville.

Feb 1: The latest date that Silberman would have learned that FCPS had lost the KDE review of Brenda Allen's report on Peggy Petrilli. It is unknown if he learned of the outcome earlier, but FCPS did participate in the KDE process and it seems very unlikely they would not have known well before the rest of us did.

??? : At some point Silberman (not the Board) selects Hanna Resource Group to submit a proposal to study outsourcing legal services for Fayette County. They did - and presented it to Silberman by Feb 24.

Mid to late February: FCPS Board members become aware of Becky Sagan's request for a study. Silberman hurries the Hanna study, reportedly without board consent. Amanda Ferguson objects to the study. Silberman presses ahead.

Why the hurry?

The only reason I can think of for a hurry-up study is if Silberman intended to fire the legal staff, an act that would require notification by April 15th. Is there direct evidence that Silberman wanted the study to be a secret? ...or done quickly? ...or to have a particular outcome? Did Silberman know beofre the study was done what it was going to say?

We already know that Silberman the primary source of information for the study.

Hanna did not solicit information from his clients (the board members) or the parties most closely involved (the legal staff) an apparent effort to keep the study a secret.

Silberman planned for a March 15th BOE mtg.

Friday March 12 at 10:30PM - Brenda Allen was blindsided when Silberman informs her of the existence of the Hanna Report, which it appears the board had in its possession for a week or more.

March 15: BOE meets. A biased Hanna Resource Group feeds the Board a bunch of unsubstantiated opinion, which the board swallows whole. Surprise, surprise; Hanna recommends outsourcing all legal services.

March 15: Brenda Allen responds to Hanna Report. Points out flaws and says it was "conducted in secret" and that some of Hanna's recommendations could not be accomplished legally .

March 18: Allen updates her response based on a request from board member Amanda Ferguson.

March 18: KSN&C breaks news that Peggy Petrilli was cleared of testing allegations due to insufficient evidence by KDE.

Asked if the dismissal of charges for lack of evidence lent support to Peggy Petrilli's argument - that the charges were trumped up by FCPS to begin with - KDE spokeswoman Lisa Gross declined to speculate. "It would be inappropriate for me to speculate on the veracity of the charges," she said.

April 6 - Allen on medical leave of absence

June 30: Last day of Allen's contract with FCPS

HE SAID, SHE SAID

This is a big case.
And I’m going to give the plaintiffs
an opportunity to put on their proof.

---Judge James Ishmael

Court documents reveal the strategies and legal theories that will take center stage in Petrilli v Silberman this week and next. In two installments, HE SAID, and SHE SAID, Kentucky School News & Commentary will outline each side’s arguments in upcoming posts.

In a June 23rd pretrial hearing in Judge James Ishmael’s Fayette County Circuit Courtroom plaintiff’s attorneys J Dale Golden and Melissa Thompson along with school board attorney John McNeill argued the conduct of the case and what kinds of information the court would allow, and what would not be allowed. In addition, Fayette County Schools Superintendent Stu Silberman was relieved of personal exposure on the discrimination and whistleblower charges in his individual capacity, while he remains on trial in his official capacity.During the hearing, Judge Ishmael focused the attorneys on the "magic date" of August 22, 2007.

This is the date that former Booker T Washington Academy principal Peggy Petrilli either quit or was forced out.

Following Petrilli’s departure as principal, Board Attorney Brenda Allen conducted a 9-month investigation. But the investigation was conducted after the fact. Is the information Allen collected germane to the case?

Previously, District Civil Rights Compliance Officer Barbara Conner had investigated complaints, as well, but those issues did not appear to result in any disciplinary action against Petrilli and were considered by her to be resolved.

Petrilli’s attorneys moved to have it stricken.

What information will Ishmael allow the jury to hear?

Ishmael: The Allen investigation...was conducted fall/winter 07-08. I did feel like, under the circumstances, whatever happened...regarding Ms Petrilli and her position with the board...whatever the investigation showed [after August 22, 2007]...was not part of our proceedings because whatever happened had happened. The investigation wasn't going to change that...

These alleged “bad acts” that were covered by [Barbara] Conner...in 2007 or maybe even before that - that, to me, is a little bit different because it goes into the background and the circumstances culminating, perhaps, in...the meeting with Superintendent Silberman; first with the parents, and so on, and next with Ms Petrilli... To me, before that magic date in August, and after that magic date in August are different...

I know [Petrilli's] argument is that whatever Conner's investigation was, it was basically concluded... [and] addressed...before our magic August time. And I understand that argument. I guess that I'm a little concerned that if we're trying this ...on several theories...how else are we going to put it in context of the reason the board and the superintendent were having these discussions with Ms Petrilli, other than to say that parents had come with their list of grievances?

Golden: 9 months later they came out with [the Allen report]. That report should be off limits...because we couldn't discover that.

Thompson: In fact... even mention of that post-August 2007 testimony by anyone should be wholly off limits because...that would be unduly prejudicial against her.

Ishmael: Well, I've seen some of the correspondence ... and it seemed to me a pretty plausible argument that ... [after] the Superintendent said something about an investigation ... Ms Petrilli said, 'Yeah, I welcome that investigation.' So the fact of an investigation was at the instance of both parties.

McNeill: There were attachments to the report that dealt with matters prior to the time...those things...those specific events...are specifically relevant.

Ishmael: I don't think that what Ms Allen wrote in her report, or concluded...has anything to do with our case.

Thompson: There is a ... 3 page document that was the parent's list of complaints. Those were the complaints that were taken to Stu Silberman and [Director] Carmen Coleman...that initiated the [Allen] investigation...that was not done until ...months later. All of the material stemming from Barbara Conner's [2006] investigation pre-dates that and...[has] nothing to do with the fact that [this] unknown group of parents took a... complaint ...to the [superintendent]. So anything that Barbara
Conner investigated was complete and... resolved and has no bearing, particularly in light of the fact that...Ms Petrilli's supervisors... Bob McLaughlin, Lisa Stone and Carmen Coleman, never put any of this information...in their statutorily mandated evaluation of Ms Petrilli.

McNeill: The evidence is...that even after Petrilli tells Ms Conners...I've taken care of this; the documents show...the same problems that those parents had, continued; from...her inception there at that school and continued on. So it is relevant...

Ishmael: I am going to overrule the plaintiff’s motion to exclude… prior circumstances involving Ms Petrilli, concerns raised by parents, investigations raised by Ms Conner, I think all of these are probative and relevant to the issues here. With this caveat…no new information or charges against Ms Petrilli that arose after August 22nd of 07. We’re not going to get into what Ms Allen said, did, recommended, concluded, or any of that.

[The fact that there was an investigation] may very well come out during the negotiations … between the superintendent and Ms Allen, on one hand, and Ms Petrilli and [her former attorney] Mr Walther on another, and it may come out in some of the emails and letters I’ve seen, or writing on the letters, that one side suggested an investigation and the other side agreed with it, or acquiesced in it, or also requested it. It may come out …that an investigation was conducted, if that comes out during the course of explaining the circumstances in the immediate time period of the separation, I will permit the fact…that the investigation was conducted, but nothing about the details…except as to before the August 22nd date.

Plaintiff’s Subpoenas Served:
Superintendent Stu Silberman
Director Carmen Coleman, now Supt in Danville
BTWA parent Alva Clark
BTWA parent Buddy Clark
BTWA parent Jessica Berry
District administrator Barbara Connor
Former Director Bob McLaughlin
Former BTWA principal, current Interim Director Jock Gum
Former BTWA teacher Alice Weinberg
District administrator Vince Mattox
District administrator Gary Wiseman
Former District Director Fabio Zuluaga, now Assist Supt Fairfax Co VA.
Former FCPS Board Attorney Brenda Allen
Cheryl Jones
Former BTW Counselor Doug Adams
BTWA Prof Staff Asst Margaret Gay
Former Director Lisa Stone
Dr Linda Brown Wright
Dora Hudson
Former BTWA teacher Leigh McCauley
Former Herald-Leader reporter Brandon Ortiz