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."