My thoughts on the School Board Attorney situation

Posted on November 27, 2010. Filed under: School Board |

The School Board is holding a workshop on Monday, November 29, 2010, regarding the General Counsel’s position. School Board Attorney Marko has asked the Board to renew his contract for another year, to expire in December 2011, while they conduct a new search for a new attorney.

Marko is graciously offering his continued services as General Counsel through December 2011, which he says would allow time for the Board to commence another search for a new General Counsel, which he anticipates will take another nine months.

The Board thus has the opportunity at this workshop to address the issue of Marko’s contract.  Will they extend it for another year? Will they extend it while they conduct another search? Or will they abandon the idea of searching for a new counsel, and simply keep Marko on indefinitely? Or, best case scenario, will they tell Marko enough is enough, and not extend his contract, appoint one of the Deputy Counsels as interim, and do another quick search?

I hope before they decide to extend his contract again, they will look at several issues. I sent them an email pointing these issues out to them, which I have reprinted here. I embedded the links that I had attached to the email:

Dear Board members:

In advance of your workshop next Monday, November 29, 2010, I have taken the liberty of sending you a timeline that I created and which was distributed at the November 2, 2009, workshop, updated to reflect the events of this past year.  I have cross-referenced it with links to items that can be found in the eAgenda, for ease in providing you the actual source material. [Note: I will post timeline separately]

I note that Mr. Marko is offering his continued services as General Counsel through December 2011, which would allow time for the Board to commence another search for a new General Counsel, which he anticipates will take another nine months.

If the Board is inclined to accept Mr. Marko’s offer, I have a few suggestions, and would like to point out a few facts.

1.     Mr. Marko’s current contract

a)     Evaluation and Goals

Mr. Marko’s current contract, as written and accepted in March 2008, specifies, in paragraphs 6.1 – 6.3 on page 7, that the Board and Mr. Marko will develop an evaluation instrument; that there will be annual establishment of goals, and there shall be an annual evaluation every June.

While the Board and Mr. Marko did create an Evaluation and Performance Survey in October of 2007, I don’t believe we ever created a new evaluation instrument as contemplated in the March 2008 contract, nor do I recall conducting an evaluation of Mr. Marko since that time.  In fact, in the synopsis of the workshop on November 2, 2009, it was noted that “Board Members have not done an evaluation on the General Counsel since 2006 and request that one be done.”

When this issue came up for discussion last year, I reminded the Board of this, and it was decided, since Mr. Marko’s contract was up at the end of this year, that there was no need to do this, but the Board also indicated that should Mr. Marko’s contract be extended once again, an evaluation would be completed.  The Board may also want to revisit the issue of the Establishment of Goals, as was required in the 2008 contract. In fact, the minutes of the November 10, 2010 meeting, pages 70-74, state that the Legal Services Committee was to re-address these provisions in the contract, but we never did so.

b)    Annual Report

Mr. Marko’s contract also provides that there will be an annual report, provided to the Board by July 31 of each year.  I don’t recall if we received the annual report each year since the 2008 contract, or, if we did, whether it was timely. Someone may want to check this.

c)     Expectations

The 2008 contract includes some very specific short and long-term expectations, that Board members may want to review.  These were the results of extensive review and discussion with our consultant, Bill Mathis (see February 18, 2008, memo Broward County General Counsel Performance Expectations 200).

I would urge the Board members, especially those who have worked with Mr. Marko since 2008, to review the short and long term expectations to assess whether you are satisfied that progress has been made in attaining these goals.

d)    Emeritus Position

Finally, with respect to Mr. Marko’s current contract, his 2008 contract, paragraph 15 of the Employment Agreement states that Mr. Marko acknowledges that the School Board will issue a Request for Proposals for the position of General Counsel in June 2009, and the Board anticipates selecting a candidate for this position in September of 2009. Mr. Marko will then transition into an Emeritus position, the role, salary, duties and responsibilities to be further developed by the School Board and Mr. Marko.

If it is the will of the Board that there be an Emeritus position, but the current Board is unhappy with the job description, role, salary or duties as adopted by the former board last month, the Board can bring back that item to rescind it and start over again.

If it is the will of the Board that there not be an Emeritus position, the time to re-negotiate this is now, if you are going to extend his contract.

e) Support for hiring new Counsel

Paragraph 16.3 (e) of the Employment Agreement states that Mr. Marko will be “supportive of the School Board’s request for General Counsel transition to a new Counsel. . .”

The Board indicated a desire to go out for a new General Counsel in 2008.  In June of 2009, when the Board was about to begin the process of drafting an RLI, Mr. Marko sent a memo requesting to be kept on as General Counsel through December 2011.  In November of 2009, Mr. Marko also indicated he wished to remain until December 2011.  Mr. Marko is again asking for this to be his exit date.  Based on the comments of Mr. Stokes in his letter to Board members, attached, one has to wonder how supportive Mr. Marko has been to this process.  This should be reiterated in any contract extension.

2.     New search:

a)     RLI

The RLI was written by cadre counsel Robert Soloff during the summer of 2009.  The Legal Services Committee, then comprised of Jennifer Gottlieb, Bob Parks and myself, along with Mr. Notter and Mr. Marko, reviewed and fine-tuned the RLI.  I would suggest, inasmuch as we had cadre counsel as well as Mr. Marko providing input into writing the RLI, you not throw the baby out with the bathwater.  If the Board wants to revisit the RLI, that would certainly be appropriate, but realize that this was a four month process, with the assistance of outside counsel as well as Mr. Marko. I would implore you not to take another four months to develop a new RLI.

b)    Timeline for search:

I would respectfully submit that nine months is way too long. If the Board wants to tweak the RLI, that can be done fairly quickly.  We are now pretty much exactly where we were one year ago. Last year, the Board said we wanted the RLI to go out after the holidays; it did not go out until February.  The RLI should be ready to go out right after the holidays when you return in January. While it takes one month to publish it in the Bar publications and FSBA or NSBA publications, there should be a much shorter turn-around time.  Having the ad go out in February of last year, with the due date of May 15, and then not even short list or interview until September is unrealistic for candidates.  Someone who sees an ad in February is not going to necessarily be waiting around to be hired almost nine months later.

I recently received an email from the Florida Bar, advising of a search that Lee County is doing for a County Attorney.  Apparently, they did not receive enough qualified candidates, since they were re-opening their process, but their original timeline is of note (see Revised Recruitment Schedule).  They calendared one month to develop the job profile and receive approval from the commission to advertise; the ad went out on September 21 and closed on October 5; they allowed one week for the screening and selection process, and had completed the initial interviews by October 22 and the final interviews by October 28th.  While this is an aggressive time frame, it does show that five weeks instead of five months can be done! In our case, our ad closed May 15, and we did not even short list until September. That is way too long a time.

3.     Legal Services Committee

To conclude, I would like to make some comments about the Legal Services Committee.  I found a draft of a set of By-Laws for the Legal Services Committee (4-LEGAL SERVICES COMMITTEE BY LAWS-DRAFT-3-13-08), but do not recall if we ever adopted these.  The Board may want to review, tweak and adopt these by-laws.  I don’t believe we ever elected a Chair of that committee.  I might also suggest that the General Counsel should be a non-voting member of the Committee. Since the Legal Services Committee meets, on occasion, to recommend contract extensions, terms, and salaries or raises, it seems inappropriate to have the General Counsel voting on items that inure to his benefit.  Certainly, Board members are made to abstain from voting on an item that inures directly to their financial benefit, yet, the General Counsel has voted as part of the Legal Services Committee, on his contract extensions and raises.

Final thoughts

One final recommendation: If the Board is serious about hiring a new General Counsel, it may behoove you to let Mr. Marko’s contract expire on December 31, 2010 and appoint one of the Deputy Counsel as Interim. I fear, given what I had heard in the community, that as long as Mr. Marko remains in his current position, you will not receive serious candidates, as the word on the street is that Mr. Marko is not leaving, and this is not a real position. In addition, if the Board is concerned about the budgetary value of having a full time General Counsel and a full time Emeritus counsel, the Emeritus role could certainly be one of a consultant, as needed, as opposed to full time.  I think the Board should take the comments of our only applicant, Jim Stokes, to heart. (see Stokes letter (withdrawing)). He raises some very good points.

Thank you for reviewing my thoughts on this important issue and good luck with this challenging situation.

Stephanie Kraft


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