NJASA Can Help Active MembersUtilize Outside Legal ServicesMore Efficiently
In an effort to control legal costs paid by school districts, the Commissioner of Education included limitations on the use of school board attorneys in the Fiscal Accountability Regulations, which were adopted in 2008 and amended and reauthorized in 2009. This section has taken on new import in light of the June 25, 2013 report by the New Jersey State Comptroller, which outlined deficiencies in the management of legal bills by a small sample of public entities, including two school districts. That report also included a “Best Practices Checklist for Engaging and Managing Legal Counsel.” This Checklist includes some of the mandates set forth in the regulation.
Under N.J.A.C. 6A:23A-5.2, each school district is required to adopt, by policy, strategies to minimize the cost of public relations and professional services, including legal services. These strategies must include a maximum dollar limit for these services, and notification to the district if the maximum will be exceeded. By policy, the district must also establish procedures to ensure prudent use of legal services and a way to track the use of these services.
To comply with this regulation, every board of education must limit the number of contact persons with authority to request services or advice from legal counsel. NJASA recommends that the superintendent be one of the persons authorized to contact legal counsel in accordance with the board’s policies. A log of all contact with legal counsel must be maintained, and must include the name of the counsel contacted, the date of the contact, the issue discussed, and the length of the contact. The legal bills must then be compared to the log, and discrepancies must be investigated and resolved. The regulation also prohibits advanced payment, and requires that the contract with the legal counsel provide details as to the services to be provided. Invoices must be itemized to services provided for the billing period, and payment may only be made for services actually provided.
In addition, the policies must include “[c]riteria or guidance to prevent the use of legal counsel unnecessarily for management decisions or readily available information contained in district materials such as policies, administrative regulations or guidance available through professional source materials . . ..” Obviously, the intent of these regulations is to place the onus on district administrators to do their own leg-work and legal research, to determine if a question can be resolved prior to contacting outside legal counsel.
With the advent of the new school year, it is imperative that all superintendents review their districts’ policies to ensure that they comply with the mandates of this regulation. This is particularly true for superintendents and interim superintendents who are beginning the school year in a new school district.
I would also like to take this opportunity to remind all NJASA active members that your NJASA membership and subscriptions can help you pinpoint the legal issues your district faces, and help you comply with these regulations by using your board’s legal counsel in a more efficient way. First and foremost, NJASA has always provided members with the ability to call a NJASA attorney to get assistance with general legal questions. NJASA attorneys can provide research assistance and help members to have the relevant authority at their fingertips prior to engaging board counsel. NJASA attorneys are available by phone every business day, as a resource to NJASA active members, to provide this assistance.
In addition, NJASA also provides, as a “professional source material” through subscription, the NJASA Legal Research Publication Program. Through this program, subscribers receive the NJASA Administrative Guide which provides an in-depth analysis of one legal topic on a monthly basis. Recently, members who subscribe to the publications received information on new laws affecting student safety and privacy, updates to student residency laws, analysis of the “child find” requirements under the Individuals with Disabilities Education Act, analysis and updates to the Anti-Bullying Bill of Rights Act, and information and analysis on multiple other topics. Subscribers also receive the School News Briefs, which summarize recent cases in the area of education law, monthly. As part of this program, the Impact on Negotiations, which summarizes PERC cases, and the Special Education Bulletin, which summarizes special education cases, are published on alternating months. These publications serve as reference guides and resources for future legal issues that may present themselves, and subscribers are able to log on to the NJASA web site and view past issues.
Due to numerous and extensive changes to New Jersey Law on issues related to tenure, evaluations, bullying, and other topics, NJASA is also planning to release an updated edition of the Legal Handbook for New Jersey School Administrators in the coming year. The Handbook is another professional resource that provides quick, easy to follow reference information about the most common legal issues faced by school administrators. NJASA will notify all members when the latest edition of the Handbook becomes available.
NJASA continues to work to assist members in complying with the limitations on legal costs as well as all other sections of the Accountability Regulations. NJASA recommends that all active members take advantage of their NJASA membership, and utilize the services and subscriptions available from NJASA, to assist their boards in complying with these regulations.
 N.J.A.C. 6A:23A-5.2
 The report may be found at http://www.nj.gov/comptroller/news/docs/report_local_government_legal_fees.pdf. Specific analysis of that report is beyond the scope of this Legal Corner.
 N.J.A.C. 6A:23A-5.2(a)(1).
 N.J.A.C. 6A:23A-5.2(a)(3)(i).
 N.J.A.C. 6A:23A-5.2(a)(3)(iv).
 N.J.A.C. 6A:23A-5.2(a)(4).
 N.J.A.C. 6A:23A-5.2(a)(3)(ii)(emphasis added).