The School Administrative District 6 school board bucked the conventional wisdom – and its own past practice – when it decided to use its own legal counsel to investigate whether the superintendent, the board chair and the vice chair violated the district’s nepotism policy in hiring the superintendent’s son.
Several lawyers said Wednesday that it’s not uncommon for school boards to hire outside counsel to avoid potential conflicts of interest, and there are some situations that clearly call for it.
SUMMARY OF SAD 6 INVESTIGATION
“There are all kinds of legal conflicts of interest which can develop,” said Stephen Langsdorf of the Preti Flaherty law firm. “It may be that (the board) simply believes that because the attorney works very closely with the superintendent they might not be the best person” to handle an investigation.
SAD 6 officials are under fire after a series of revelations about the hiring of Superintendent Frank Sherburne’s son as an education technician.
Zachariah Sherburne’s hiring came to light after he was charged with sexually assaulting a student in another district. Sherburne, 23, also lacks the required state approval to work with students. The board has met repeatedly in executive session with legal counsel from Drummond Woodsum on the matter.
Parents have called on the board to fire Sherburne, and several parents reacted with shock late Tuesday night when they learned that the top officers of the 14-member board – which alone has the power to discipline or fire Sherburne – were involved in the breach of policy.
Langsdorf said those top officers, Chairwoman Rebecca Bowley and Vice Chair Jacob T. Stoddard, need to recuse themselves from discussions about the superintendent’s employment at this point.
“In my view, they should not participate in any personnel decisions going forward” on this matter, Langsdorf said. Since they were involved in the hiring, it would be hard for them to objectively participate in a discussion on whether the board should take personnel action against Sherburne, he said.
“That represents a conflict of interest. They are involved,” Langsdorf said.
In general, he said, school boards should consider independent investigators or outside counsel when they are addressing or investigating the conduct of a senior administrator, since they would want a neutral investigator who can serve as a witness in the event of any formal proceeding later. That also leaves the board’s legal counsel free to advise the board on the findings.
“It would be difficult for that attorney to be giving advice after doing the investigation and having relationships with both the superintendent and the board members,” Langsdorf said. “It makes it difficult to give objective advice to the board.”
HIRING WITH NO FULL BOARD VOTE
One SAD 6 board member, Daniel Kasprzyk, repeatedly tried to stop the board from using its regular counsel, but was voted down.
“I have seen memos that indicate and suggest that there are certain individuals on the board that are potentially implicated in discussions that may ensue,” Kasprzyk said at a meeting Monday. “I think there is a conflict of interest.”
A summary of findings from a report prepared by an attorney for Drummond Woodsum and two board members detailed how Sherburne discussed his son’s interest in a job in SAD 6 with Bowley and Stoddard. The three of them discussed the nepotism policy and Bowley and Stoddard said they were “OK” with hiring the superintendent’s son. But they did not bring the issue to a full board vote, which is required before hiring a relative as an exception to the nepotism policy.
Minutes before the board went into executive session Tuesday night, Kasprzyk again asked the board to cancel the session and said two board members needed to recuse themselves from participating, although he did not identify those members. The motion failed, and Bowley and Stoddard participated in the closed-door session discussing the report that showed they had failed to follow the district’s nepotism policy.
After the meeting, Kasprzyk said he was “disappointed” that the board didn’t support his efforts. “As I remind everyone, I am only one of 14 individuals,” he said in an email.
The SAD 6 school board had previously used outside counsel to investigate allegations against Frank Sherburne three years ago.
In 2013, the board hired an independent investigator to look into allegations by the Sacopee Valley Teachers’ Association that Sherburne had improper communications with a student.
A letter from the union that May said Sherburne communicated directly with a troubled student and interfered with the staff’s ability to “respond to the student’s significant mental health needs.” The Pierce Atwood law firm investigated the allegations for the board and found they were without merit.
NOT COUNSEL FOR SUPERINTENDENTS
An attorney with Drummond Woodsum, which handles much of the legal work for school boards in the state, said there are times when using outside counsel is a good idea. It would be “awkward,” lawyer Bruce Smith said Tuesday, for the same attorney to compile an investigative report, present it to a school board, then turn around and advise that board on the legal issues in the same report.
“For due-process reasons, sometimes it’s prudent to have separate counsel to assist the administration in presenting the case,” Smith said. “We are very alert to those issues about who should be represented by whom.”
He emphasized that Drummond Woodsum attorneys who work for school districts always represent the board and the district, not the superintendents.
“We interact with them because it’s like they’re the CEO of an organization, but the board is the governing body,” he said. “The ethical obligation of the lawyer is to protect and advocate for the interests of the entity, and in cases of schools, it’s the school district and what’s in the best interest of the school district.”
Under state law, a superintendent can only be fired by a board after due notice, an investigation, for cause, and with a majority vote of the full membership of the board. A superintendent can appeal the board’s decision to the state education commissioner, who would hold a hearing.
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