Updated–Marko Sabotaged Choice for New General Counsel

Posted on November 28, 2010. Filed under: School Board |

UPDATED—(Thanks to Robert Mayersohn for sending this)

The Orange County School Board was replaced last May after serving 30 years. Who did they replace him with? The attorney for the Orange County Supervisor of Elections, an attorney with NO EDUCATIONAL LAW experience! See article here:

The replacement, Diego “Woody” Rodriguez, was formerly an assistant count attorney with the Orange County Attorney’s office. Orange County Board members said that “even without that experience, they believed he would serve the board and public well.”

So there is precedence for replacing a long-time School Board Attorney with a qualified governmental law attorney!

—End of update—-

The School Board sent out an RLI (Request for Letter of Interest) for a new General Counsel in February of 2010. The due-date for receipt of resumes was May 15th. They didn’t short list or interview candidates until September 2010. That was a ridiculous amount of time to expect an attorney candidate to wait to get a new position.

The RLI specified that the Board was seeking someone with “significant experience in educational, governmental and/or administrative law.” Note that this is an “and/or” not a requirement specific to educational law experience.  It is important to note that this requirement was unanimously agreed to by all the members of the Legal Services Committee, and specifically written by Mr. Marko as well as by Bob Soloff, the cadre counsel hired by Jim Notter to write the RLI and handle the negotiations for the new attorney.

The rationale for seeking someone with not just educational law experience, but with governmental law experience, is that a School Board attorney, like a County Attorney or a City Attorney, has to have governmental and/or administrative law experience first and foremost, even more importantly than having educational law experience.  As Mr. Marko himself pointed out in our Legal Service Committee meetings, it would be more likely that we would find someone qualified in administrative or governmental law than educational law.

Governmental law encompasses what a School Board attorney needs to know.  Principles of governmental law include knowledge of Sunshine and Public Records laws, ethics, policy making, contracts, personnel issues, labor and bargaining issues, administrative law, purchasing laws, etc.  Issues such as free speech for employees and students; separation of church and state and other constitutional issues are also identical for a governmental attorney. Thus, there is little difference between the knowledge that a City Attorney or County Attorney would have versus a School Board attorney on general governmental law issues.

Subjects particular to educational law would include the IDEA laws, Race to the Top issues, NCLB, and so forth.  Inasmuch as the School Board has attorneys on staff who are experts in ESE issues and other “educational” issues, it is apparent that most of the work that a General Counsel would concentrate on would be administrative (running the office) as well as general governmental law issues.

Having gone through the nine-month process, the Legal Services Committee ultimately chose two candidates, one of whom then dropped out, so the School Board was left with one candidate, Jim Stokes, who was the Legal Services Committee’s first choice.

Mr. Stokes ultimately withdrew his application, and sent a very well written letter explaining his position.

Mr. Stokes points out that while the RLI sought a person with governmental experience, when Mr. Stokes went to negotiate his contract with Mr. Marko, he was told that due to his lack of experience with educational law, he would not receive the same benefits or salary as Mr. Marko. In fact, he was insulted that the Board was planning on paying Mr. Marko, in his Emeritus position, more than they offered Mr. Stokes, as General Counsel.

Mr. Stokes also pointed out that it is apparent that “the School District is anticipating the General Counsel Emeritus to be some sort of “training officer,” rather than a mere resource to the Office (and, in fact, intends to pay the Emeritus more than the new General Counsel).”  This is disappointing. When we conceived of the Emeritus position, we saw it as a resource to the General Counsel, and anticipated that the General Counsel would seek the services of the Emeritus, not vice versa. It appears that Mr. Marko is anticipating that the Emeritus position will be leading the General Counsel. That was not the original plan for that position.

Mr. Stokes points out that the RLI sought “an individual with a minimum of ten (10) years in education law or local government law.” He also points out, “I have been an attorney representing local government for nearly fifteen years. I am Board Certified as a Specialist in City, County and Local Government Law (in addition to being dual-Certified as a Specialist in Labor & Employment Law). I have written and spoken at statewide and national conferences of government attorneys and I am regularly consulted by other local government attorneys for advice and counsel.”

Mr. Stokes was exactly the type of candidate we were seeking. Being Board Certified in two different specialties is very notable. Yet, as Mr. Stokes points out, he was made to feel inferior because he did not have educational law experience, even though that was not specifically required for the position.

It is  also apparent that having Mr. Marko do the negotiations with the General Counsel candidates was not a good idea. Mr. Stokes had the qualifications that the Board sought, yet he was made to look like he was less than qualified by the current General Counsel who obviously does not want to leave.

Mr. Stokes suggests in his letter of withdrawal, that if the Board is truly looking for a General Counsel with educational law experience, the RLI should be limited to seeking only those candidates.  In my opinion, this would be a big mistake. As I pointed out, the Board needs a General Counsel with broad governmental law experience.  Having a candidate like Mr. Stokes, who is Board certified in both Governmental Law as well as Labor and Employment Law, would provide a better base for someone to run the School Board attorney’s office.  I should also point out that until recently, there was no separate certification in School Law (I think they are working on this, not sure if it exists as of right now or not), nor is there a separate section for School Law as part of the Florida Bar.  School law attorneys join the “City, County and Local Government Law” section, which is the section in which  Mr. Stokes received his certification.

It was also a huge mistake to have the current School Board attorney, who obviously does not want to leave, do the negotiations with the potential new incoming School Board attorney.  What motivation does Marko have to ensure a satisfactory negotiations process? If the board goes out for a new RLI, they should ensure that Marko has no role in the search or selection or negotiation process. The board has cadre Labor Law counsel that can serve this role.

The Board also needs to decide what role they want the Emeritus to play.  Is the Emeritus going to be someone who “trains” or “guides” the new attorney, as Marko anticipates? Or is the Emeritus going to be someone who serves as a resource for the attorney’s office and the Board, as the role was originally conceived. Or do they want an Emeritus at all? They could just as easily hire Marko as a consultant on an as-needed basis.

My recommendations, which I sent to the Board today in an email, are as follows:

  • I would urge the Board to keep the current RLI, or limit it to just the in-house attorney and eliminate the law firm option, but keep the qualifications as written.
  • I would also urge the Board to have the selection and negotiation process independent of the current General Counsel.  If Mr. Soloff is no longer an option to participate (originally, he was to be on the screening and evaluation committee), then cadre counsel Carmen Rodriguez, who is our Labor counsel, would be appropriate to handle the negotiations.
  • The Board may also want to reconsider the discrepancy between the salary for the Emeritus and the General Counsel, as well as the job description for the Emeritus, should the Board want to keep Mr. Marko as Emeritus.
  • If you truly want a new General Counsel, the new General Counsel should direct the Emeritus, not vice versa.
  • Finally, I think it is counter-productive to have an attorney who clearly does not want to leave to do the negotiations for the prospective new attorneys.

Let’s hope the Board does the right thing and keeps Marko out of the search for the new attorney!

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