Legal Brief
Who Pays When the Superintendent Needs Legal Counsel?
BY V. WAYNE YOUNG/School Administrator, November 2020

A SUPERINTENDENT and board of education were having informal discussions regarding some provisions of the superintendent’s contract. One board member began strongly advocating for an interpretation of language that was financially punitive to the superintendent.

Normally, the school board attorney could help resolve this kind of dispute, but she had worked with both parties in drafting the contract and had an ethical duty to recuse herself from the conversation. In the end, the matter was resolved, but the superintendent paid thousands of dollars to private counsel to assist him.

Whose Counsel?

The school board attorney’s client is identified in the job title — it is the board. Certainly, that does not preclude advising the superintendent as well. In Kentucky, the superintendent is described in statute as the “executive agent” of the board. This is a term of law and carries with it the authority to act on behalf of another. It is not improper for the board attorney to routinely advise the superintendent as the superintendent, in a sense, is an extension of the board.

But, inevitably, occasions arise when the respective interests of the superintendent and the board, while not adversarial, may not be congruent. And, in my experience providing legal assistance to superintendents over 37 years, some board attorneys — especially in smaller, more rural districts — do not have a thorough understanding of some of the more complex or highly technical, specialized areas of school law. In these situations, it is often advisable for the superintendent to seek legal counsel from another source.

Because the superintendent’s occasional need for additional personal legal counsel or expertise can be anticipated, it is a sound practice to imbed this option as a routine element of the board-superintendent relationship.

One approach would be to include a provision for counsel for the superintendent as part of the employment contract. Like any other fringe benefit, the scope and financial limits of the benefit can be agreed to by the parties.

The board and certainly the board attorney may view a reference in the superintendent’s contract to private legal counsel as awkward or distasteful. If so, the contract could simply describe it more generically as a benefit consisting of a specified amount of money to be used at the superintendent’s discretion to obtain professional services related to his or her job duties.

Mitigating Situations

It is in no way an affront to the role of the board attorney for boards and superintendents to discuss when and under what circumstances the superintendent may obtain private counsel at the board’s expense. This arrangement actually serves to mitigate and resolve situations that might otherwise become impediments to the management of the district.

When two lawyers talk, things sometimes get better for their clients rather than worse. A superintendent could understandably have a concern or question about a provision in his or her contract or need for specific expertise in a situation presenting complex legal issues.

In such cases, creating a structure in advance to provide for a resolution could be financially advantageous to both parties and contribute to a continued smooth working relationship between the board and the superintendent. Allowing two attorneys to collaborate on a solution or mediate a dispute may prevent hard feelings and unintended consequences that could result from board members and the superintendent having discussions that may become unnecessarily adversarial.

In many ways, board financial support for legal counsel for the superintendent is akin to insurance policies that boards routinely fund as part of a well-designed compensation package for the superintendent. It can assure both parties that minor issues do not get blown out of proportion or become an impediment to the working relationship that must exist between the board and superintendent to move the school district forward.