Who's Watching the Lawyers?

One of the few attorneys we didn't pay.

"On the advice of counsel ...." seems to have been the standard preface to many answers over the past few years.  But given recent history, you have to wonder exactly what advice we've been paying for.

During the recent Johnson vs. School Committee fiasco, I counted the following legal eagles on the public payroll:

• School Counsel
• Town Counsel
• Insurance Company counsel to litigate Johnson vs. School Committee
• Special Outside Counsel to investigate Caulkins - Johnson fiasco
• Special Outside Counsel to investigate Johnson - Caulkins fiasco
• Insurance Company counsel to litigate Minkoff vs. School Committee
• Counsel to the Superintendent
• The Assistant District Attorney for Barnstable County
• Associate Justice of the Superior Court
• Three Senior Justices of the Massachusetts Court of Appeals

(I have no idea if Marshall, Kangas, Linehan and Crossman hired personal counsel -- yet.)

Insurance company counsel was used for the litigation because the Town carries litigation insurance to protect it from legal costs --- BUT not legal settlements.  Insurance carriers want their own counsel because they (allegedly) want the most cost-effective counsel possible.

This situation was "complicated" because different counsel had to be used for different cases -- the counsel that was defending Johnson and the School Committee in the Minkoff case needed to be different than the counsel that was defending the School Committee in the Johnson case. 

So, with all this legal talent, why did it take two years before we heard somebody (other than a deranged blogger and some Johnson supporters) say "Hey, read the damn law -- regardless of whether there really was an OML violation,  you had 21 days to file a complaint and you didn't do it.  You Lose"  That was paraphrasing -- but I'm not paraphrasing  Judge Brown when he said, "You snooze, You Lose!".

So if the law is as clear as the Appeals Court says, what took so long?  Why was so much public money wasted effectively selling ice to the Eskimoes?  Maybe because the legal eagles were giving the "Eskimoes" what they wanted  -- so they would keep paying the rent?  Is it too cynical to suggest that some folks were benefiting and lining their pockets based on the ignorance of some School Committee members?

Here's some specific questions:

1)   Why didn't School Counsel raise stronger objections to the concept of eliminating the Assistant Superintendent's position?  He was in on all the meetings and drafted all the letters.  Couldn't he have yelled "Iceberg!" a little louder to prevent the legal collision?  Did he not want to contradict the Superintendent who may have already made up her mind?  Was there confusion as to who his client was -- The Superintendent, the School Committee or the Sandwich Taxpayers ?

2)  When School Counsel was told the following morning that the April 28th meeting had been continued until April 30, shouldn't he have warned his client about a potential technical conflict between meeting continuances and the OML's 48 hour notice requirement -- regardless of how open or well-published the meeting was?

3)  On May 13th (13 days into the 21 day period) the former School Committee Chairman sent  School Counsel the relevant excerpts from Mass General Law along with a strong warning that it did not appear a DA could "nullify" a meeting and that judicial action was required -- and (in a non-lawyer's opinion) to act otherwise would put the Town in danger of a Breach of Contract suit.  Why didn't counsel advise his client to pursue judicial review in order to resolve the situation immediately and avoid an extended legal battle?  Did he not want to prevent a potential pitfall for his REAL clients -- the Sandwich taxpayers, just because the new majority that was now paying the bills felt strongly otherwise?  

4)  Once the Johnson lawsuit was filed, did School Counsel point out to his client (who appears now very clearly to be the School Committee majority) that very publicly banning the Superintendent over a staffing issue, after she filed suit against them,  opened them up to a serious retaliation claim -- along with making the District look foolish.

5)  Couldn't Town Counsel, who reports to the Selectmen, have weighed in more heavily on the issue?  Granted, the BOS has no authority over the School Committee, but the BOS is responsible for the Town as a whole -- and they would undoubtedly be involved in potentially providing the funding to eventually clean up the mess.  There was an obvious attempt by the BOS to "play nice".  Unfortunately, this was a situation where they could have justified delivering a "dope slap"!

6)  Couldn't Insurance Company's counsel have said, "Hey, I read the law ... you got no case!  I would feel bad taking your money for a case that can't be won!"  Well, I guess that question answers itself!

7)  What about the Barnstable Judge?  As a former Assistant DA, did he think all Assistant DA's had magical authority to void meetings at will?  While he is obviously a well-educated guy and an experienced prosecutor, why didn't he read the law in the same manner as the Judges in the Appeals Court -- which was exactly the same way as many mere mortals who never took the Bar exam did.

The most frustrating part of this whole fiasco is that we have now ended up exactly where we were predicted to be over two years ago. The only difference is that we have done our part to aid the economic recovery by pumping  many thousands of tax dollars into the pockets of private attorneys -- and undoubtedly increased the size of the likely settlement.

I'm certainly not holding my breathe, but maybe some of that money can get pumped back out of those pockets to help fund the likely settlement.

Maybe now is the time to discuss adding an in-house counsel at Town Hall?  We could probably fund the position on savings from frivolous lawsuits and decreased litigation insurance premiums.  We could certainly use SOMEBODY to objectively review claims and prevent the next group of amateur statesmen from picking our pockets.