Wanted: Public counsel

The Washoe County School Board’s next lawyer should be a deputy district attorney. The board should not hire another in-house counsel. It should certainly not sign up a law firm.

Over the last year or so, the board has gotten into several disputes in which it checked with its lawyer, Randy Drake, and he told them, “Uh-huh, you’re doing fine.” And then the state attorney general’s office ruled that, no, they weren’t doing fine, that, in fact, they were breaking the open meeting law.

In fact, Attorney General Catherine Cortez Masto last year broke with all previous state policy and set a new precedent—that public officials will be held at fault when they follow their lawyer’s advice. That being so, the choice of a new lawyer becomes all the more important.

The school board is made up not of professional politicians, but everyday folks from around town—a management consultant, a restaurant owner, a teacher, a retiree, and so on. That’s one of the board’s strengths, but it also leaves its members vulnerable to office politics.

In the course of unloading Drake as their in-house counsel, for instance, the board members seemed not to realize that they needed to instruct their lawyers—members of a private law firm hired to work out an agreement with Drake. He accepted a demotion to a non-legal position on condition that the board agree not to explain to the public any of the negative reasons he was departing as board counsel, thus leaving the board members at the mercy of public criticism. They would be unable to explain the situation to members of the public.

In our opinion, they should have told their lawyers, “Randy Drake doesn’t get to set conditions. His incompetence has led us to this point. Go back to the negotiations and tell him his gag-order is a non-starter.”

The law firm the board hired should have known not to put board members in that position. Their concern was the board members, not the public, which has a right to information. The school board needs legal counsel that is independent, free to advise in ways that aid both the board and the public. A deputy district attorney works for an independently elected official accountable to voters.

The school board also needs legal counsel that is independent from the board itself, so she or he will feel free to tell the board members what they may not want to hear but need to hear.

Finally, the school board needs legal counsel that enjoys as much insulation as possible from the camaraderie of the legal community, so one law firm will not be getting too cozy with other law firms.

All of these, in fact, should be public policy affecting all boards and agencies. Non-public counsel is out of hand.

As a nice bonus, if the school board uses a deputy district attorney instead of a law firm, it will save money. Not just a little money, a lot of money. As we noted in May, when the Washoe Airport Authority switched in 1989 from a deputy D.A. costing five figures to a law firm, within seven years it had legal bills in six figures—dollars paid to nine law firms (“Drake demoted,” May 21).

It won’t be easy. District Attorney Chris Hicks informs us he does not have the budget for it. “It’s a heavy lift,” he said. But the school board has money budgeted for legal counsel, and having competent counsel for the last year would have saved a couple of lawsuit settlements.

The district attorney’s office has provided fine counsel to the Washoe County Commission for years. It should do the same for the Washoe County School Board.