School Board

Marko’s Resignation Official–Emeritus Position rescinded

Posted on December 7, 2010. Filed under: School Board |

Interesting activities at the Board meeting today.

The Board heard the item recognizing retirements and resignations, and Mr. Marko’s name was on that item, formally retiring. Interesting that this was added to the item this morning. Why wouldn’t this have been placed on the agenda when Marko sent his one-line memo advising he was not seeking the extension?

The Board heard this item before they considered Ben William’s item, requesting the extension to the Employment Agreement for Marko, so the Board formally approved Mr. Marko’s retirement, then turned around and heard the item requesting the extension.

Maureen Dinnen asked whether the extension was moot at this point, and the Board members appeared confused as to what to do with the item. Interestingly, Marko chose not to give them any direction at that point, so Notter suggested that perhaps Mr. Williams should open the agenda and withdraw the item.

I wonder why Ben didn’t withdraw the item prior to today? Could it be that he hoped that Marko would change his mind about leaving? Why didn’t Notter put Marko’s retirement on the agenda before today? I’m guessing there were a lot of behind the scenes conversations between Ben, Notter and Marko.

In any event, they ultimately re-opened the agenda and withdrew the item seeking the extension, since Marko’s retirement was just approved.

The other interesting thing is that the item asking the Board to rescind the job description for the Emeritus position passed without any discussion on the consent agenda.  At the workshop, it did not appear that there was unanimous agreement to reconsider the job description. The board members advise what items they wish to consider on the consent agenda at the beginning of the meeting. Thus, this item passed on consent before Marko’s retirement and before Ben Williams withdrew the employment agreement.

I assume, based on the discussion at the workshop, it was obvious that Marko was leaving, but the Board has had no discussion about the status of the Emeritus position, nor has Marko indicated that he will not pursue this. In fact, at the workshop, he clearly stated his intention of pursuing his right  to the Emeritus position.

Thus, what can be assumed by this item being passed on consent? Does that mean Marko has given up his “right” to being appointed Emeritus and thus, the job description is not needed? Or does this mean that the Board is in agreement that they need to re-define the position so they will be re-writing it and awarding it to Marko on different terms?

While I’m glad the item did pass, it would have been helpful had someone pulled the item to clarify where the Board is now with regard to the Emeritus position.

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What will the School Board do tomorrow about Marko?

Posted on December 6, 2010. Filed under: School Board |

Interesting issues at tomorrow’s School Board meeting.

Marko sent a one-line memo, stating that he no longer intends to seek an extension of his contract. Obviously, he counted heads at the workshop last week and realized that he did not have the votes for an extension, so he’d rather go out on his own than face a rejection by the Board.

But, interestingly enough, the item asking for the extension is still on the agenda. Since it was an item brought by Board Chair Ben Williams, obviously at Marko’s request, will Ben withdraw the item before the meeting?  Or will it be left on so the Board members can then discuss where do they go from here?

But where does this leave the Board? A board member should have immediately put an item on the agenda to appoint an Interim General Counsel. There are no other board meetings between now and January. Will a board member (Maureen or Ben?) use this to suggest a one month extension until the Board can appoint an interim? Will the Board hold an emergency meeting to do this prior to December 31st? The Board is on break after December 17th, and meetings require advance notice.

And what is the status of the Emeritus? Marko’s current contract states that he will transition into an Emeritus role after the Board hires a new General Counsel. The language of that contract, however, contains some time frames that were not met. Specifically, that contract stated,

MARKO acknowledges that THE SCHOOL BOARD will issue a Request for Proposals (RFP) in June 2009 for the position of General Counsel and that THE SCHOOL BOARD anticipates selecting a candidate for this position in September 2009. The selected candidate will work in collaboration with MARKO until the expiration of this Employment Agreement on January 1, 2010.

Upon the expiration of this Employment Agreement, MARKO will transition into an Emeritus position. The role, salaries, duties and responsibilities of this position will be further developed by THE SCHOOL BOARD and MARKO.

Obviously, those time lines were not adhered to. That contract was amended in November 2009, and while the agenda item stated that “The First Amendment to Employment Agreement contains an acknowledgment of the School Board’s desire to develop a succession plan and issue a request for letters of interest,” the actual Amendment to the Employment Agreement simply extended the term of his contract through December 31, 2010.

The question thus remains, if the Board did not adhere to the timelines in the original contract, is the Board still bound to transition Marko into an Emeritus position? And if so, are they bound to the job description that the former Board rushed through one week before the new Board was sworn in?

Another item on the agenda is to rescind the job description for the Emeritus. This has to be done for two reasons. First, if the Board is not bound to hire Marko as Emeritus, the position is not needed, and should be rescinded. If the Board is still bound to have an Emeritus, the new Board must be able to determine the role, responsibility and duties of this position themselves.

Perhaps the Board should hire an independent labor attorney from outside this county to evaluate Marko’s contract and provide an opinion as to whether the Board is contractually bound to hire him as Emeritus. If so, the Board could then opt to make the Emeritus a consultant position, to be used on an as-needed basis, and to pay this position the same hourly fee that the Board pays all of its other cadre counsel (I think they pay $145 an hour).

Either way, this will be an interesting meeting.  The item to approve the contract extension (B-2) is set for a time certain of 11:00 am. The item to rescind the job description (B-1) does not have a time certain, and the item to approve the new RLI (I-4) to start the job search over again has a time certain of 11:30.

Be sure to tune in to the meeting tomorrow! It can be heard on the radio, 88.5 FM, or live streamed on www.browardschools.com.

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(Revised) Proposed new Contract Extension for Marko Eliminates Emeritus Role!

Posted on December 1, 2010. Filed under: School Board |

Ben Williams, Chair of the Broward County School Board, put the proposed new Contract Extension item on the Board agenda for December 7, 2010 (Agenda Item B-2).  (Board agenda can be accessed at http://eagenda3.broward.k12.fl.us/cgi-bin/WebObjects/eAgenda.woa/wa/showMeeting).  I assume this was in conjunction with discussions and negotiations with Marko.

It contains some surprises. First, instead of a year extension, the contract extension is only for three months, through March 31, 2011.

Second, it eliminates paragraph 15 from the March 2008 contract and the amendment to that paragraph in the First Amended Contract.  Paragraph 15 was the paragraph that provided that Marko would transition into an Emeritus position and would work in collaboration with the new counsel.

Marko apparently saw the handwriting on the wall that was pretty clear that there was at least six votes not to extend his contract for a year and continue him as Emeritus.

The interesting thing is, what will the Board do now? Will they extend him three months, and go out for a new RLI immediately? Or will they be suspicious that if they extend him for three months, he will ask for another extension after that period? That has been his MO the last three years.  Of course, if they do approve this three month extension, that does get them out of their contractual obligation to have him transition into the Emeritus position, so this is an interesting dilemma.

Also on the agenda, a  request by Board Member Dave Thomas to rescind the Job Description for the Emeritus position (Agenda Item B-1).  Dave accurately points out that when the board item was approved, a week before the “new board” took office, the new board  did not have a chance to weigh in on the terms and responsibilities of that position.  Now, of course, if Marko is proposing eliminating the Emeritus position if the Board agrees to a three month extension, it makes even more sense to rescind the position, since it would not be needed.  Either way, this item should be approved by the Board. If the Board chooses to have an Emeritus position, they need to re-evaluate the terms, duties and responsibilities of this position. If they choose not to have this position, then this Job Description should be eliminated.

Finally, the RLI for the new General Counsel  is also on the agenda (Agenda item I-4). The RLI contains some suggested changes, and includes some critical questions the board must answer at their meeting.  This is an excellent opportunity for the Board to ascertain what they are looking for in a General Counsel.  Kudos to the Board for putting this on the agenda at their next meeting and holding their discussion on the make up of the RLI in a timely manner.  The timelines provided are also much more reasonable, and have the new counsel being approved by the Board by April 19, 2011.  Of course, that begs the question, if Mr. Marko’s contract is only extended until March 31, will the Board be without a General Counsel for three weeks? Why would they have suggested an extension to March 31, if the new General Counsel is not proposed to be appointed until April 19? Is this another ploy to keep Marko? Or simply an oversight in coordinating the dates? I suspect that this was set up to have a board member amend the item to extend Marko until April 30, 2011, if they are inclined to do the amendment.

By tying the amendment in to the elimination of the Emeritus position, Marko appears to have the Board where he wants them.  He wants an extension, and the Board does not want to be tied into the March 2008 contract guaranteeing him the Emeritus position.  Interesting posturing by Marko. It should be an interesting meeting next week!

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Updates and My Evaluation of Marko in 2007

Posted on November 29, 2010. Filed under: School Board |

In my initial report, I noted that the minutes of the November 2, 2009 workshop indicated that there was no evaluation done of Mr. Marko since 2006.  I did some additional research, and found that while the Board did do an evaluation in 2006, only 5 of 9 members completed that evaluation. You can see the results here. Darla Carter and Bob Parks reported that Marko “exceeds expectations” while Maureen Dinnen, Marty Rubinstein and Ben Williams found that Marko “met expectations.”  No evaluations appeared to be completed by Robin Bartleman; Bev Gallagher; Al Jones; or Stephanie Kraft. I don’t recall why I did not complete the evaluation, it could be I just did not meet the deadline. .  The timing of the evaluation was also interesting.  The Board approved the Evaluation Instrument at its October 17, 2006, meeting, the same meeting where a majority of the Board fired Superintendent Till.  The evaluations of Marko were due to be returned by October 31st.

It also appears that contrary to what was in the minutes of the November 2, 2009, workshop, there was an evaluation conducted in 2007.  I do not have the matrix showing all of Mr. Marko’s evaluation results, but I do have mine, which you can see here. I also attached a comprehensive explanation of my scores, which were “unsatisfactory.”

Finally, I located a Board “follow-up” from the October 30, 2007, workshop, which sets forth items discussed in that workshop and what Board members seek to accomplish.  It will be interesting if the Board chooses to look back and this and include this in the discussion of whether to keep Marko or not.

That workshop is taking place this morning at 11:00 am and can be viewed at www.browardschools.com. I know I will be listening!

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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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Marko’s (Uncompleted) Goals and Expectations

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

Marko’s March 2008 contract, under which he is currently operating, states that contains various “goals and expectations” that he was supposed to have attained. These were the results of extensive review and discussion with our consultant, Bill Mathis. (Mathis memo)

16.1 SHORT AND LONG TERM EXPECTATIONS

MARKO acknowledges that the following short and long-term expectations will be developed into identifiable performance objectives and measurable goals. Until those performance objectives and measurable goals are established, MARKO will strive to fulfill these short and long-term expectations:

Compliance with Contract?

The short and long term expectations contained in Marko’s 2008 contract were never developed into identifiable performance objectives or measurable goals. I also don’t believe that Marko managed to fulfill most of these expectations:

Short term expectations:

(a)   Annually report progress on the School Board’s expectations at a Board Workshop with identifiable action steps (This has not been done);

(b)  Continually review best practices comparisons with other quality districts. Present ideas to the School Board with recommendations for legal services (This has not been done);

(c)   Hire and train new attorney(s) and support staff including experienced paralegal, as necessary and directed by the School Board and the Legal Services Committee and reduce the amount of outside attorneys as much as possible by hiring more attorneys in-house. (While Marko hired a few new attorneys; don’t believe he hired any paralegals; job description for Counsel Emeritus suggests that Marko will work on risk management issues-why not hire a risk management attorney instead?);

(d)  Improve response time to requests from the School Board, Superintendent and staff (board members and staff still complain that his responses are not timely, but, then, again, he hasn’t had an evaluation since 2006);

(e)   Provide input and expedites services to the School Board’s Agenda items where appropriate on content and not merely form. (Board members have complained that Marko’s input is on form, not content; Marko repeatedly states that it is not his job to flyspeck contracts or items from other departments);

(f)   Continue to be active with current Executive Leadership Team in retreats, meetings and training workshops. (If Marko is active here, why does he always appear unprepared at board meetings where these items are being discussed?);

(g)  Provide quarterly reports to the School Board on pending litigation, legislation, budget and activities of the Attorney’s Office (I don’t believe this is provided quarterly);

(h)  Provide a needed link to risk prevention planing with Third Party Administrator and a combined risk reduction effort/plan. (This is one item that Marko put in the job description for the Emeritus position–has he been doing this now?);

(i)    Provide an annual written report to the School Board (January) on budget and activities of the Attorney’s Office (I dont believe this was done, either);

(j)    Prepare an annual training plan for the School Board, Department Directors and Schools as necessary (Marko provides some training for staff in August, very rarely does any training for the Board and when it was done this year, Marko did not provide it, he brought in the Ethics person from Tallahassee only after Gallagher was arrested in September of 2009) (Other than that training, I recall no ethics, public records or Sunshine Law training done by Marko);

(k)  Implement latest technology for attorneys and the legal office (I don’t know if this was done. The attorney that the Board was going to hire, during his interview, mentioned how he had a computerized case management program in his office and Marko seemed to not know that these things existed); and

(l)    Initiate bi-annual legislative updates on laws and procedures affecting the School Board (this has not occurred; also he does not provide updates to Board members on school law issues that could have effect on policies).

Long term expectations:

(a)   Prepare the Legal Department for transition and change in the next two years. Continue to create a positive atmosphere that enhances delivery of services, promotes collegiality and service to the School Board and ELT; (Marko’s preparation for change was to repeatedly ask for contract extensions and delay the hiring of the new counsel)

(b)  Recruitment of quality, experienced attorneys in necessary areas and hiring of new staff to decrease the use of outside attorneys and shift to the use of more in-house attorneys; (still could hire more in-house attorneys and eliminate need for Emeritus)

(c)   Transition to managing and supervision rather than carrying heavy caseload; (I don’t know if he has done this)

(d)  Restructure the office by developing annual goals and clear division of expertise and workload within the office structure; (I don’t believe he has developed annual goals yet);

(e)   Be supportive of the School Board’s request for General Counsel transition to a new Counsel in September of 2009. Develop emeritus role; (again, his support for the Board’s request for new General Counsel consisted of repeatedly asking to have his contract extended, delaying the search process, and sabotaging the negotiations with the new counsel)

and

(f)   Work with Superintendent’s staff to expand office space and facilities to appropriately support the expanded legal responsibilities. (I don’t think this has occurred, either.)

If the Board is inclined to extend his contract, I hope they hold his feet to the fire and require completion of those items that were contained in his 2008 contract!
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Marko Timeline 1996-2010

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

MARKO TIMELINE 1996 – 2010

July 16, 1996:

  • Mr. Marko enters into five-year contract with School Board for the period of October 1, 1996 to September 30, 2001, to become in-house General Counsel.  Prior to that time, he was outside counsel to the School Board through his firm, Marko and Stephany. Mr. Marko has represented the School Board since 1958.

September 11, 2001

April 20, 2004:

  • Mr. Marko’s contract expires September 30, 2005, so School Board approves a two year contract extension, ending on September 30, 2007. See agenda item:
  • Amendment includes an increase of $8,194.68, reflecting a 5% increase, effective April 20, 2004 as the compensation for the General Counsel has not been adjusted since October 1, 2001. Mr. Marko’s new salary is $172,088.28 per year commencing April 20, 2004.
  • Contract amended to include a provision in the Employment Agreement which provides that the General Counsel’s salary be increased by the percentage of salary increase provided to other 12-month administrative employees as of the date The School Board approves the increase applicable to its 12-month administrative employees.

February 24, 2006:

May 4, 2006:

  • Audit Committee reviewed the Audit report.

June 6, 2006:

Some interesting findings:

  • Spent $ 747,325 on in-house legal  services in FY 2004.
  • Spent $ 831,265 on in-house legal  services in FY 2005.
  • Spent $907,309 on in-house legal  services in FY 2006.
  • Spent $1,696,430 million on cadre counsel in FY 2004
  • Spent $1,322,304 million on cadre counsel in FY 2005
  • Spent 1,303,446 million on cadre counsel in FY 2006.
  • Spent a total of $2,443,755 on legal services for FY 2004.
  • Spent a total of $2,153,569 on legal services for FY 2005.
  • Spent a total of $2,210,755 on legal services for FY 2006.

September 18, 2007:

  • School Board was presented with a proposal for a two year contract extension, but Board members wanted more time to complete an evaluation of Mr. Marko prior to doing the contract extension. See pages 17-20 of minutes of meeting:
  • The School Board approved as amended the Fifth Amended Employment Agreement of Edward J. Marko, as General Counsel, extending the term of the agreement only two months, in order to readdress further continuation of the contract. through November 30, 2007.

October 2, 2007:

  • Board approved the Evaluation Instrument and Performance Survey for the Board Attorney.
  • The Board agreed to approve the Evaluation Instrument at this meeting, extend the General Counsel’s contract to the end of January at the next meeting, and hold a workshop to discuss the evaluation and expectations for the Board attorney. See pages 22-25 of minutes:

October 16, 2007:

October 30, 2007:

  • School Board workshop on Review of the General Counsel. Back up for the workshop can be found here: http://eagenda3.broward.k12.fl.us/cgi-bin/WebObjects/eAgenda.woa/wo/37.0.7.1.3.0.1.7.2.0.40.0.0.19.3.0.1.1.5.1.1.0.0.3.1
  • Among other things, the following was requested:
  • When the organizational chart comes up for discussion in the spring of 2008, staff is requested to add a full-time staff person to the General Counsel’s office, whose responsibility will be to review construction and land purchase contracts.
  • To assure a check and balance and more accountability, the General Counsel’s office is requested to add a sign off form to the construction or land purchase contracts and board items stating the documents have been reviewed, there is consistency between the contract and the board item, showing which policy the items references, and that it meets the requirements of the five-year plan.
  • General Counsel is requested to advise the Board when it is thought that a board item is not legally sound.
  • The Board has requested that there be better communication between General Counsel and the Offices of Operations, Facilities and other Executive Leaders.  Board items need to be discussed before they come to the Board so they are consistent, with no discrepancies, between contracts and board items.
  • Board Members requested that General Counsel be more proactive and have a broader view of legal implications regarding issues affecting the school district, such as Ben Gamla Charter School.  To advise the Board of possible legal ramifications, raise a red flag and if needed give the board a summary to keep them better informed.
  • Board Members gave the following requests for the General Counsel office:
  • -Be more-timely responding to the Board Members and staffs’ questions.
  • -Increase in-service presentations.
  • -Summaries about different legal issues at school districts across the country, which may apply to this school district.
  • -Increase attention, evaluation, supervision, and implementing a system of tracking assignments of the Cadre of Attorneys.
  • -Annual reports of legal services should be provided on a timely basis.
  • Board Member would like a cost analysis on how much is spent on the Cadre of Attorneys per year and how much it would cost to hire a full time attorney.  Inform the Board with this information by memo.
  • Staff is requested to supply the Board with last year’s budget including legal services the General Counsel office has paid for.  Also, include the number of cases this office has handled in the last year.
  • There is not a specific policy that outlines the selection of a General Counsel.  The Board Chair suggested, at some point, this needs to be addressed.
  • Board Member requested seeing the evaluations of the Cadre of Attorneys, once completed.
  • Staff is requested to inform Board Members of the current status of the audit of the General Counsel including a review of the attorneys’ fees for workers’ comp and risk management cases.
  • Here was the status as of October 2007:
  • http://eagenda3.broward.k12.fl.us/eAgenda/1319/32635/Files/5-matrix_102007-update.pdf
  • Synopsis of the meeting can be found here:

December 18, 2007:

  • The Legal Services Committee met and recommended extending the term of the agreement through March 31, 2008 to allow the committee to seek input and develop certain language pertaining to the evaluation of the General Counsel and the development of goals and objectives.
  • It is anticipated that the proposed employment agreement would be brought to The School Board at its March 18, 2008 meeting for its consideration.

January 15, 2008:

  • School Board approves the Seventh Amended Employment Agreement, extending term of contract to March 31, 2008, to allow the committee to seek input and develop certain language pertaining to the evaluation of the General Counsel and the development of goals and objectives. It is anticipated that the proposed employment agreement would be brought to The School Board at its March 18, 2008 meeting for its consideration.

February 18, 2008:

March 18, 2008:

  • School Board and General Counsel enter into new Employment Agreement with term of contract from April 1, 2008 to January 1, 2010.
  • The contract provides that Mr. Marko will be evaluated on an annual basis beginning with his initial evaluation which shall be conducted on or before June 2009, and annual evaluations will be conducted in subsequent years on or before June 30th.
  • The contract sets forth specific short and long term expectations of Mr. Marko.
  • The contract also provides that Mr. Marko acknowledges that the School Board will issue a Request for Proposals in June 2009 for the position of General Counsel, with the expectation that a candidate will be selected by June 2009 and that candidate will work with Mr. Marko until the termination of his contract on January 1, 2010.
  • Further, the agreement states that Mr. Marko will be supportive of the Board’s request to transition to a new counsel in September of 2009.
  • Finally, the Agreement states that following the termination his contract in January 2010, Mr. Marko will transition into an emeritus role.

June 18, 2009:

  • Email from Board member Kraft to Superintendent Notter inquiring as to what steps will be taken to follow the board’s directive to issue an RFP for the position of General Counsel.  Paragraph 15 of the Employment Agreement for Mr. Marko, which the Board approved on March 18, 2008, states that the board will issue an RFP for the position of General Counsel in June of 2009.

June 22, 2009

  • Memo from Ed Marko to Board offering his services through December 2011. (See page 1 of attached)

June 23, 2009:

  • Email from Superintendent Notter to Board members advising that he has retained Robert Soloff to write the RFP and provide input on the job description with the intent to also seek SBM input in this process and have the RFP ready for the July 23rd Legal Services Committee meeting.

July 30, 2009:

  • Legal Services Committee met to review proposed RLIs including
  • Option 1-General Counsel, in-house position
  • Option 2-General Counsel-outside attorney, part time position
  • Option 3-General Counsel-outside firm, with specified attorney(s) as General Counsel, part time position and additional firm representation as determined by the School Board.

August 11, 2009:

  • Legal Services Committee met to discuss RFPs for General Counsel. A single RFP providing for either a full time employee or a full time contractor who would remain a member of a law firm but would devote 100% of his or her time to the School Board was presented.

August 18, 2009:

  • Legal Services Committee met to discuss RFPs for General Counsel. One RFP for an in-House General Counsel which would be a full-time employee or full time contractor was proposed.

September 1, 2009

  • Memo from School Board Chair Maureen Dinnen requesting a workshop prior to going forward with the RFP for a new general counsel.  Memo is found on page 2-3 of backup from November 2, 2009 workshop, here:

September 10, 2009

  • Legal Services Committee met to discuss RFP for General Counsel and draft revised Job Description.
  • Legal Services Committee reviewed one RLI which would ask for an In-House Full Time Employee or an outside attorney who would be a specified attorney from a law firm who would devote all of his/her time and efforts on behalf of the School Board as General Counsel. We also discussed proposed Job Description.

October 15, 2009:

  • Memo from Mr. Marko transmitting the final RLI and Job Description as agreed by the Legal Services Committee at our September 10th meeting.

November 2, 2009 workshop:

  • It was requested by the Board Members to have a discussion regarding the General Counsel’s Contract, which will end January 1, 2010. See back up materials:
  • It was discussed that two years ago, the General Counsel’s contract was to expire and at that time and it was extended with the agreement that an RFP would go out to identify someone for the position.
  • The Legal Services Committee has been developing an RFP (now an RLI), which would request applications for the General Counsel position. The RLI is requesting applications from outside firms and internal applicants to be an in house attorney, (employee of the School Board) or an outside attorney or firm, who would not be an employee of the School Board. This would bring in a large applicant pool.
  • The School Board Members had a good discussion regarding the RLI and the contract and agreed that because of the past turbulent year this Board has gone through, the RLI was not pursued as of June 2009.
  • The Board Members decided, because of the approaching date of the contract expiration, that at this time General Counsel’s contract should extended, so to not cause a lapse in the position, and to go forward with the RLI.
  • Board Members decided to extend the General Counsel’s contract for two years. This would allow ample time to receive applications for this position and also allow a transition-training period.
  • It was agreed that the General Counsel will design a Board Item for the Board’s approval to extend the existing contract for two years with the acknowledgement that the RLI will go out to find a new attorney for this position.
  • See synopsis:

November 10, 2009:

  • “First Amendment to Employment Agreement for General Counsel” bringing forth a two-year term which commences on January 2, 2009 and expires on December 31, 2011.  See Agenda item and executed document:
  • The First Amendment to Employment Agreement contains an acknowledgment of The School Board’s desire to develop a succession plan and issue a request for letters of interest (“RLI”).”
  • Motion to Amend term of contract to one year extension passed, with the Employment Agreement ending on December 31, 2010.
  • The new Employment Agreement also states that Mr. Marko acknowledges that the Board will issue a Request for Letters of Interest (RLI) for the position of General Counsel during the term of this First Amendment to Employment Agreement, and that the School Board anticipates selecting a candidate who will work in collaboration with Mr. Marko until the expiration of this First Amendment to the Employment Agreement.
  • The Agreement also states that “Upon the expiration of this Employment Agreement, Marko will transition into an emeritus position” the role, salary duties and responsibilities of which will be developed by the School Board and Marko prior to the end of the Agreement.
  • Minutes from the meeting (pages 70-74) indicate a consensus that the RLI be put out once the extension is granted, and that staff should meet with the Board members to ensure everyone is comfortable with the RLI. See minutes:

February 2, 2010:

  • Agenda Item passes authorizing the release of the Request for Letter of Interest for position of General Counsel.
  • Agenda item references the First Amendment to the General Counsel’s Employment Agreement, which acknowledged that the School Board will issue a RLI for the position of General Counsel and upon the expiration of this agreement Mr. Marko will transition into an emeritus position.
  • The RLI sought either an individual who would be a full time employee of the district, at an annual salary of $180,000 to $216,000, plus benefits, including pension contributions, health insurance, and other benefits as negotiated, or a law firm with a specified attorney providing full time services, with contract payment to the selected respondent law firm will be in the range of $234,000 to $270,000 annually. See RLI here:

February – May 2010:

  • Ads placed in newspapers and through Florida Bar and School Attorney’s Association with a response submittal due date of May 15, 2010.
  • Resumes received from candidates.

April 20, 2010:

  • Agenda item B-1 placed on agenda by Board member Bob Parks, asking to defer the selection process for a new General Counsel until March, 2011 and to approve the Second Amendment to Employment Agreement for General Counsel with Edward J. Marko extending his employment in that position through December 31, 2011. See explanation and background:
  • The item failed 2-8.
  • Revised Job Description for General Counsel approved by Board. The job description for the position of General Counsel was originally developed and adopted in 1996.  The Legal Services Committee recommended that the revised job description be adopted by The School Board to be in concert with the Request for Letter of Interest (RLI) for General Counsel Services, which was approved by The School Board on February 2, 2010.

September 7, 2010:

  • Legal Services Committee meeting to review job description for General Counsel Emeritus and short list candidates for General Counsel.

September 20, 2010:

  • Legal Services Committee meeting to interview short listed candidates.

September 21, 2010:

October 11, 2010:

November 9, 2010:

  • Second reading of policy creating General Counsel Emeritus.
  • Employment Agreement for General Counsel Emeritus (withdrawn)
  • Memo to Withdraw from Superintendent states: This is being requested as a result of the need to have the selected new Attorney’s contract completed and presented to the School Board for approval. The selected new Attorney’s contract is in the negotiations process, which is anticipated to be completed Monday, November 8, 2010. At that time, I will bring forward his and Mr. Marko’s contracts for approval by the School Board. In the event that we do not reach agreement with the new Attorney, the School Board will need to modify Mr. Marko’s existing agreement accordingly.”f

November 29, 21010:

Prepared by Stephanie Arma Kraft, Esq., Former School Board member and Former member Legal Services Committee, November 2009 and updated November 2010.

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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. http://eagenda3.broward.k12.fl.us/eAgenda/1653/44928/Files/generalcounsel.pdf 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, http://eagenda3.broward.k12.fl.us/eAgenda/1374/34082/Files/h-1x_031808.pdf 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.” http://eagenda3.broward.k12.fl.us/eAgenda/1538/41084/Files/110209.pdf

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.  http://eagenda3.broward.k12.fl.us/eAgenda/1545/Files/111-10-09_regular_meeting.pdf

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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