Law Practice in Modern Educational Administration
An Expanded Perspective for
College and University Presidents and
and Superintendents of School Districts and Governing Boards
Ben Echeverria, M.A., J.D.
Chapter I Legal Counsel: Do Educators Need Counsel and How Can They Get It?
The author discusses twelve categories of legal work that education attorneys provide and that are integral to the effective functioning of the institution. The advantages of hiring general counsel either alone or combined with a vice president’s functions are emphasized.
Chapter II The Role of the Governing Board
The role of the governing board is detailed with emphasis on the board’s role in the selection of legal counsel and how to maintaining the attorney-client privilege.
Chapter III Some Basics about the Attorney-Client Relationship
Who is the client in an educational institution, what are the attorney-client and the attorney work product privileges and what is the best reporting relationship for the attorney and the board?
Chapter IV Attorney’s Fees and Fee Agreements
Attorney’s fees are often a budget challenge for an educational institution so the author discusses the various types of attorney’s fees and fee agreements clarifying many essential elements that should be included in these agreements.
Chapter V How Do Lawyers Think?
This chapter compares the scientific and business decision making methods used by a majority of educational administrators with the way attorneys approach solving problems containing legal issues. The goal here is to improve communication and understanding between the education attorney and the client.
Chapter VI Preventive Law — What is It?
Handling a legal problem before it becomes a law suit is called preventive law. The author describes an actual application of this concept to the disposing of tort claims before they were sent to the insurance company and became law suits against his client.
Chapter VII Open Meeting Laws — A Mine Field for You and Your Board
All states have laws governing how education boards shall notice and hold their public meetings. These laws also cover what are called executive (or closed to the public) meetings of governing boards. This chapter discusses some of the pitfalls of a board’s reaching a consensus without first giving proper notice of a board meeting. How to observe the requirements for executive or closed sessions is also discussed in some detail.
Chapter VII Public Records
An often overlooked area of executive responsibility is the maintenance, disclosure and destruction of public records. This chapter briefs the essential issues and provides pointers on compliance with federal and state public records laws.
Chapter IX Working With Your Attorney(s)
Senior administrators are often uncomfortable in their relationship with legal counsel for their institution. Valuable tips are offered on how to improve this relationship and build confidence between the CEO, the board and counsel.
Chapter X Audit/Review of Existing Legal Services
An annual audit or review of legal services is often overlooked by educational institutions that continue to employ the same contract legal counsel year after year with little or no accountability. Legal bills are paid and litigation moves forward but no one from the institution takes the time to look at such matters as the amount of money paid for legal counsel, the effectiveness of counsel and the results obtained for the dollars spent. The author urges outside review by others and periodic reporting to the institution regarding the delivery, effectiveness and cost of their legal services.
Chapter XI You are the Captain of Your Educational Ship
This closing chapter relies on the analogy that the CEO is the captain of the educational ship and as the captain it is the CEO’s responsibility to be in control of the institution’s legal matters through its legal counsel. It is the board’s role to monitor and evaluate both CEO and legal counsel making certain that the legal needs of the institution are well taken care of and the legal and administrative interests of the institution are preserved and protected.
In Chapter I, paragraph B, “Legal services anticipated when hiring counsel” there is a list of fourteen areas in which legal services to educational institutions are highly desirable and useful. In the Addendum that follows, I have given examples from my own practice of each of these areas to assist the reader in understanding how attorney services are applied to the wide variety of legal situations faced by CEOs and governing boards.A. Contracts
Construction contracts: ten elementary schools
Construction contracts: environmental law litigation
Purchasing contracts: the dump truck and the California Air Resources Board (CARB)
B. Human Resources
The gardener who couldn’t tell a weed from a plant
The home economic teacher who lost control but won
The First Amendment exercised by the outspoken teacher
Termination of employment of college chief of police and the Public Safety Officers’ Procedural Bill of Rights
C. Personal Injury and Property Damage
“Faces of Death”
The underground newspaper distributed at a high schoolCollapse of a light standard on a community college playing field
The bullet through the portable classroom wall
D. Risk Management and Government Claim
The falling fire extinguisher and the diving plaintiff
Grandfather’s claim for destruction of four tires
The falling easel in the art class
E. Facilities Compliance
Watchdog group for the disabled files claim
New construction must comply with ADA
F. Government Regulation ComplianceFiscal accountability for state and federal funding
Radio and TV station compliance with FCC
Individuals with Disabilities Act and Section 504 of Rehabilitation Act of 1973
Severely disturbed student and the aggressive principal
Graduating high school senior and the forgotten fishing knife
G. Emergency Preparedness Plans and Procedures
National Incident management System (NIMS) and National Integration Center (NIC)
Standardized Emergency Management System-California (CalEMA)
H. Intellectual Property (IP)
Home economics teacher and the copyrighted cookbook
Colleges and universities are fertile ground for intellectual property law matters and potential litigation
I. Student Services and Campus Police
Guns and violence on our campuses
J. Academic Matters Including Grade Change Requests
Grounds to change a grade are often when the grade is given in “bad faith, by mistake or fraud”
Graduating senior and his lost swim scholarship
K. Collective Bargaining and Strikes
San Diego Unified School District and the San Diego Teachers Association
L. Real Property Transactions
Land acquisition and the power to condemn
California earthquake standards and the Field Act
Balboa stadium unsafe and razed but not without a the fight to save it
M. Proactive Litigation
Lindberg International airport and noise damage to schools
Re-development agency and the unhappy college district
N. Legal Review of Policies and Procedures