• On Target September 2017

  • Legal Corner ML

  • NJASA Can Help Active Members Utilize Outside Legal Services More Efficiently

    Most NJASA members are aware that in May 2017, the New Jersey Department of Education (DOE) adopted changes to the Fiscal Accountability and Budget Regulations. Some of the provisions received a great deal of attention, particularly those related to the changes in public school superintendent salaries. However, the regulations also amended and re-authorized numerous other provisions designed to control district spending. One such section relates to the use of professional services such as legal services.1 Spending on legal fees by school districts is frequently the focus of public discussion and, in fact, was the focus of a 2013 report by the New Jersey State Comptroller. That report outlined deficiencies in the management of legal bills by a small sample of public entities, including two school districts, and included a “Best Practices Checklist for Engaging and Managing Legal Counsel.”2 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 board if the maximum will be exceeded.3  By policy, the board must also establish procedures to ensure prudent use of legal services and a way to track the use of these services.4 

    To comply with this regulation, school districts with high legal expenditures must limit the number of contact persons with authority to request services or advice from legal counsel.5  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.6 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.7

    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 . . ..”8 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 understand the legal issues your district faces, and help you comply with these regulations by utilizing your board’s legal counsel in a more efficient way. First and foremost, NJASA has always provided active members with the ability to call an NJASA attorney to receive 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 or email every business day to discuss pressing matters with members.

    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 decisions by the School Ethics Commission, Programs Policies, and Procedures for the Intervention and Prevention of Student Abuse of Alcohol, Tobacco, and Other Harmful Drugs, the Anti-Bullying Bill of Rights Act, and the Nonrenewal of Nontenured Employees. Subscribers also receive the School News Briefs, which summarize recent cases in education law, monthly. As part of this program, the Impact on Negotiations, which summarizes PERC cases and court decisions, 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. 

    Last year, NJASA also released a substantially updated and revised Legal Handbook for New Jersey School Administrators (7th Edition). The Handbook is another professional resource that provides quick, easy to follow reference information about the most common legal issues faced by school administrators. This Handbook is currently available in an electronic format, as well as a new printed format.

    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.


    1  N.J.A.C. 6A:23A-5.2.

    2  The report may be found at http://www.nj.gov/comptroller/news/docs/report_local_government_legal_fees.pdf.

    3  N.J.A.C. 6A:23A-5.2(a)(1).

    4  N.J.A.C. 6A:23A-5.2(a)(2).

    5  N.J.A.C. 6A:23A-5.2(a)(3)(i).

    6  N.J.A.C. 6A:23A-5.2(a)(3)(iv).

    7  N.J.A.C. 6A:23A-5.2(a)(4).

    8  N.J.A.C. 6A:23A-5.2(a)(3)(ii)(emphasis added).