Why the Montgomery County Board of Education Hired Outside Lawyers

This article first appeared in The Washington Post on September 28, 2014

By Phil Kauffman

The writer is president of the Montgomery County Board of Education.

When concerns were raised last spring about Montgomery County Board of Education member expenses and credit card usage, the board and I knew it was important that we undergo a swift and thorough process to understand the scope of the issue and look for ways to improve our procedures. We also knew that an external review would be needed to assure the community that the board was taking this matter seriously.

Some are questioning the cost of hiring lawyers to conduct this external review, but I believed then — and I believe now — that it was the right thing to do.

In April, even before public concerns were raised, I had created an ad hoc committee to develop recommended changes for how board members are reimbursed for expenses incurred during official business. Subsequently, when concerns were raised, I asked that we conduct an in-depth review of the past two years of expenses to inform the committee’s work.

If this review had been conducted only by Montgomery County Public Schools staff members — people who are employees of the district and who ultimately report to the board — the community could have rightfully questioned the findings and any action taken in response. Objectivity was an important part of this process, so we hired Venable LLP, a law firm with extensive experience in matters of public integrity, to conduct the review, provide a report of their findings, and make recommendations for next steps.

This is standard operating procedure when an organization is reviewing its own practices, whether it’s a business, a sports league or a government agency.

This review, and other legal matters associated with the board expenses since April, cost about $140,000. It was worth the expense. Venable’s independent review and expertise allowed the board to gain a full understanding of the issues surrounding its expenses and informed our unanimous decision in July to get rid of district-funded credit cards and make sweeping changes to expense procedures and protocols.

Outside counsel allowed us to respond in a timely, comprehensive way to an inquiry by the Office of the State Prosecutor. We were confident that its investigators would find no evidence of criminal action, which is what happened, but we took their requests for documents and information seriously. In the letter informing us that the investigation was closed, State Prosecutor Emmet Davitt said he appreciated our “responsiveness and cooperation.” Our outside lawyers also allowed the board to respond quickly to an Open Meetings Act complaint filed by a member of the community — again, a situation in which the board prevailed.

Hiring outside lawyers with taxpayer dollars is not always a popular decision but it is a part of doing business in the 21st century, especially for an organization as large and complex as Montgomery County Public Schools. We have a small, in-house legal staff. Issues, such as this one, arise in which we need the assistance of outside counsel. And while we would like everyone to be happy with the decisions we make, that simply is not possible in a district this size.

People have a right to question the decisions that we make and advocate for their beliefs. Certainly, Montgomery County residents have a tradition of such advocacy, which often finds its way into state and federal courts. We routinely face legal challenges over issues such as land use and the location of new schools; contracts and bids; personnel actions; curriculum; and decisions about student services, placement and discipline. These actions, regardless of their merit, require us to hire lawyers.

The board has an obligation to defend the decisions it makes. If that means we must go to court, we will hire legal counsel to represent us and make no apology for it. We certainly try to avoid litigation and almost always try to negotiate and mediate before spending valuable dollars on lawyers and legal costs. I’m pleased that in fiscal 2014, the amount of money we spent on outside legal counsel was down nearly 20 percent from the previous year.

It’s my hope we can continue that trend, but there are still going to be times when we must hire outside counsel. In this instance, we established better processes and protocols to guide our expenses and reaffirmed the board’s commitment to operating with integrity.