For more than eleven years, I represented public school employees, both at-will and contractual, in all manner of employment-related situations. As a staff attorney, and later the General Counsel of the Texas State Teachers Association (TSTA), I represented employees in every level of the grievance process, contract nonrenewal hearings before the boards of trustees, contract terminations before certified hearing examiners, certification cases before the Texas Education Agency (TEA), and state and federal litigation. In the past year, I have transitioned my practice to representing school districts. It has been an invigorating year of change and learning, which has broadened my practice considerably. While there are many differences in representing school districts, the lessons I learned from representing individuals has provided valuable experience to draw from to solve problems for my new clients.
Some of these lessons may be self-evident to the veteran attorney or school district administrator. Nonetheless, I hope they provide a fresh perspective that can help resolve problems for the parties involved.
Lesson 1: Representing individuals is very different than representing a school district.
Let’s start with the obvious. Representing individuals or employees is different than representing a school district or its administration. But the difference really is not related to the substance of the law. All attorneys are taught to analyze the facts and applicable law and make arguments that support our clients’ positions. So representing employees or parents is not all that different than representing the district when it comes to analyzing the law. What is different in many situations, however, is the emotional state of the parties. The attorney who represents school districts knows that some of the most emotionally-charged situations are those involving students or parents. Similarly, employees who are facing the end of their employment, or perhaps the end of their career, can be highly emotional. Consequently, it can be challenging for the administration’s or district’s counsel to deal with these individuals.
Most attorneys are familiar with the saying commonly attributed to Abraham Lincoln: “A man who is his own lawyer has a fool for a client.” This adage reminds us of two things: not only is the legal system technical and, at times difficult to successfully navigate for the non-lawyer, it is also very challenging to provide oneself an objective assessment of one’s own situation. Many times in my career I have had opposing counsel express their relief to find out that I was representing an employee that he or she was dealing with. In some circumstances an attorney can serve to diffuse or deescalate an emotional or volatile situation. An attorney can also provide his or her client an objective, and realistic, view of the case.
When representing individuals against organizations like a school district, the individual’s attorney is usually aware that the district may have some legal representation, whether it be in-house counsel, a retained attorney, or law firm. However, the attorney representing the district may not always assume the reverse is true. It is important for district counsel to keep in mind Texas Rules of DisciplinaRy pRofessional conDucT 4.02 and 4.03.
Rule 4.02 Communicating with One Represented by Counsel:
“(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person, organization or entity of government the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
Rule 4.03 Dealing with Unrepresented Person(s)
“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”
The Comment to Rule 4.03 reminds attorneys: “An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. During the course of a lawyer’s representation of a client, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.”
When representing a school district, it is important for the district’s lawyer to inquire into whether the individual is represented by counsel. Many employees are members of professional associations or unions and may be engaging an attorney to deal with a personnel matter. While I always advised my former clients to disclose the fact that they had an attorney, it is a good practice for a district lawyer to ask about representation and note the individual’s response. If an employee or parent indicates that he/she is not represented by counsel, the district’s counsel should be mindful of Rule 4.03 when dealing with that individual.
If the parent or employee is not represented by counsel, the district’s counsel should be prepared to deal with an individual who might be less objective than a representative would be. When dealing with parties who are less objective it is a good practice to meet with the individual with a witness and keep thorough notes regarding the interaction. Also, keep in mind that it is not beyond the realm of possibility that the unrepresented party may be recording your conversations without your knowledge or consent.
Lesson 2: Focus on interests instead of positions
Interest-based problem solving (IBPS) is the practice of focusing on the parties’ interests rather than positions. IBPS is a structured process that is a form of alternative dispute resolution.1
An analogy commonly used to explain the IBPS approach is one in which two people are fighting over a lemon. Both people want the lemon, which seems to set up a win-lose outcome. The position of each party is, “I want the lemon.” One reasonable solution would be to cut the lemon in half and give each party half of what they want—compromise. However, compromise is often described as neither party getting what they really want.
IBPS suggests that the parties should consider each other’s interests before compromising. Assume Party A’s interest is in the juice of the lemon to make lemonade, and Party B’s interest is in the zest of the lemon for baking. Suddenly, it becomes apparent that each party’s interests can be met when the parties focus on interests rather than positions.
In many cases, conflicts that arise in the public school setting are between stakeholders that may be required to continue to work together for years, whether those stakeholders are employees, administrators, or parents. The “zero-sum” or “win-lose” approach to problem solving in these circumstances may be less effective because of the damage it can do to the ongoing relationship.
For example, Parent requests to have her child removed from Ms. Jones’s class and placed in Mr. Smith’s class. The administration does not want to move the child from one classroom to another because the other class is at capacity and would require the District to either move another child or exceed the class-size ratio cap and seek a waiver. By focusing on the parent’s interest, the district or its counsel asks, “why does this parent want her child moved from one classroom to another.” Asking that question may reveal that the child is being bullied or that the parent feels that the current teacher does not communicate well with the parent. Once the interest is identified, the district can address the real issue which may result in the child staying in the current classroom. This is a simple example of how focusing on interests can result in a win-win outcome rather than a win-lose outcome, which hopefully will lead to a more harmonious relationship in the future.
Committing to a formal IBPS model requires training of decision-makers. Formal IBPS has many steps and can be more time-consuming than traditional problem-solving methods. Considering the interests of parties—the “why” of the issue—takes nothing more than a different view of the problem. Also, by asking “why,” the school district may learn of issues for which they have mutual interests. In the example above, certainly a school district would have a mutual interest in addressing student bullying or the failure of an educator to effectively communicate with a parent. Asking “why” when presented with a position gives the opposing party a better understanding of the issues in the organization.
Lesson 3: Just because something may be “legal” does not mean the issue will go away.
It may be tempting to dismiss a problem if there does not appear to be a violation of law or district policy. School districts make decisions every day that affect personnel, students and parents, or the community. Even when a school acts within its legal authority, however, change can upset people.
State law and local policy protect a citizen’s right to file a grievance. Both the state and federal constitutions require governmental entities such as school districts to address citizen complaints.2 Other state laws specifically address the rights of employees to seek redress of their employment complaints. Section 617.005 of the Texas Government Code protects an employee’s right to seek redress of issues “concerning their wages, hours of work, or conditions of work.” It is well-established that Section 617.005 should be construed broadly.3 The Attorney General has ruled that the phrase “conditions of work” should “include any area of wages, hours or condition of employment, and any other matter which is appropriate for communications from employees to employer concerning an aspect of their relationship.”4 Further, the Texas Education Code requires a school district’s employment policy to permit employees to present grievances to the board.5
A related point to this lesson is that when individuals have a problem, they want to be heard by someone who has the authority to do something about the issue. It may not matter to the individual if he can articulate a specific violation of law or policy or not. I represented many employees who believed that they had experienced a continuing pattern of harassment by their supervisors. While the harassment may not have constituted a violation of Title VII, the employees still felt that they were being treated unfairly and wanted someone to know about it. In some of these situations, the administration would dismiss my client’s grievance for being untimely under the local grievance policy. While there is a legitimate purpose for establishing deadlines for employees to assert their claims, it is important for the district to realize that employees who feel that they are being dismissed, ignored, or silenced will find a find a way to air those grievances. It may be through an informal social media campaign or it may be a costly charge of discrimination with EEOC, regardless of the strength of the claim.
The grievance process allows for less formal resolution at the lowest possible level. It also gives a school district the opportunity to address more problematic issues before they turn into costly litigation. In my experience, an effective way of handling issues like these is to simply allow the employee the opportunity to be heard, while reserving the district’s right to rule on the issue of timeliness. As the Texas Supreme Court has ruled, “[h]earing the merits of a party’s complaint while reserving a ruling on its timeliness is not unequivocally inconsistent with later denying the complaint on the latter ground.”6 Of course, not every employee or parent will be satisfied by simply getting the opportunity to present their issues to the Board or a high-level administrator, but it is my experience that allowing the employee to present their complaint diffuses the situation more often than not.
Lesson 4: Good employees can be an administrator’s ally
I have represented all types of employees. Many of them were “good employees.” Some were not. They may have been bad employees, or they may just have wound up in a field for which they were not suited. When an attorney represents an employee who is being terminated or nonrenewed, the attorney needs witnesses to corroborate the client’s argument that the District does not have legal grounds to end the employment relationship. If the employee I represented had legitimate problems that led to his or her employment difficulties, it was very difficult to find witnesses to support that employee. There were times that I talked to colleagues of my clients who candidly informed me if my client was not doing a good job.
I have also represented veteran educators who mentored new educators. When it became apparent that a new educator was not cut out for the rigors of teaching, it was not uncommon for a well-respected, veteran educator to be involved in “counseling” the educator “out of the field.”
Good educators care deeply for their students and their schools. Good educators work hard and expect others to work hard, too. Good teachers don’t want bad teachers in their schools. But as they are trained to do, good teachers can teach other educators. Wise administrators rely on teachers who are campus leaders to help improve the overall educational climate of the school. If a teacher is struggling with classroom management, for example, consider assigning the struggling teacher to shadow a more successful teacher. If the struggling teacher doesn’t care or is simply not cut out for teaching, the successful teacher will likely be the first to acknowledge it.
Lesson 5: Being heavy handed just because you can isn’t always the best way to resolve a situation for your client.
I once represented a well-respected teacher who made a dumb mistake. In an error of judgment, she jokingly placed Scotch tape on two or three students’ mouths in her second grade classroom. By all accounts, the incident was light-hearted and short-lived and no parents raised serious complaints. Regardless, the issue did get reported to the administration who then elevated the severity of the situation and called law enforcement. Upon questioning by law enforcement, my client misrepresented the facts. We argued she was scared out of her mind, but the damage was done.
Although the incident occurred in February, the district moved for termination. As such, the parties engaged in full written and oral discovery. Depositions of my client and several district employees were taken, including the district police officer who investigated the matter.
At the eleventh hour, the attorney representing the district realized that it would be easier to pursue a nonrenewal of the teacher’s contract rather than a termination. As such, on the 46th day before the last day of instruction, my client was notified of the proposed nonrenewal of her contract and the termination proceeding was dismissed. We requested a nonrenewal hearing before the board on fifteenth day after receiving notice of the proposed nonrenewal, a Friday. The District unilaterally scheduled the nonrenewal hearing on the following Monday against my objection.
A pre-hearing conference was held and the Board president informed me and the Administration’s counsel the rules of the proceeding. Evidence presented would be limited to three things: whether the teacher placed tape on the students’ mouths; whether that conduct violated district policy; and whether the teacher misrepresented the facts in the investigation. Additionally, only witnesses with “first-hand knowledge” of the incident would be allowed to testify at the hearing. Prior testimony recorded in the depositions during the termination case would not be allowed. Lastly, each party would have thirty minutes to present its case-in-chief. I preserved error by raising objections to the procedures and arguing that the procedures did not conform to the Board’s own policy for nonrenewal hearings. My objection was noted and overruled. I was also informed that if I attempted to call witnesses such as parents or became disruptive, the Administration’s counsel would have me handcuffed and arrested.
At the hearing, the Administration’s counsel called my client as a witness and she truthfully acknowledged that she placed tape on the students’ mouths; that the act probably violated district policy; and that she initially misrepresented her role in the incident. The principal of the campus was also presented to confirm the facts. The administration rested its case in approximately 20 minutes without admitting any documentation.
I sought to call parental witnesses which was prohibited by the Board president. As such, an offer of proof as to their testimony was given. I sought to introduce evidence of my client’s past performance as an educator. The Board president refused to allow the evidence. I attempted to offer evidence of general support of the contention that the contract be renewed, but that was also prohibited. Both orally at the hearing, and in writing before the hearing, I sought to call the district police officer who investigated the matter. The officer was not made available and testimony from his deposition was not allowed. I preserved error on my objections and sat down. I was not arrested.
Without discussion, the Board voted to nonrenew my client.
On appeal to the Commissioner of Education, I noted the aforementioned limitation on my client’s ability to present her case. However, the Commissioner of Education did not reach any of those points. Instead, the district’s decision to nonrenew my client was overturned because the Administration’s counsel failed to admit the notice of proposed nonrenewal or Board Policy DFBB (Local) which provides the grounds for nonrenewal. As such, the Commissioner could not determine whether the reasons provided for nonrenewal were those contained in board policy.
The point of this story is that, because the district’s procedures so strictly limited the evidence in the hearing, no testimony or evidence was presented to establish the grounds for the nonrenewal. Also, even if the proper documentation was admitted, I believe that the district would have had a problem because it did not follow its nonrenewal policy. I will note that I had never encountered this lawyer in a school case before or since, and this type of conduct is rare for attorneys who normally practice in the school law section. See Lesson 7, below.
Lesson 6: Don’t be afraid to think outside the box to solve problems.
Lawyers who represent public school employees in Texas do not have many weapons in their arsenal. There are very few statutory or policy provisions that give employees the upper-hand. Consequently, representing employees requires attorneys to be creative and collaborative when trying to solve problems for their clients.
Harkening back to Lesson 2, it is important to always understand your client’s interest and the other party’s. I represented an employee who was proposed for nonrenewal. I advised the employee that the nonrenewal process was not very favorable for employees and that the likelihood of success was limited. My client quickly informed me that she had no interest in continuing to work for a school district that did not want her there. Puzzled, I asked why we had requested a hearing. She explained that she simply wanted to “set the record straight” for the Board. In other words, while she did not want to work at the District any longer, she did not want the Board left with an opinion of her that she believed was unfair and inaccurate. Instead of holding the nonrenewal hearing, the district agreed to accept her resignation (and release of claims) in exchange for an opportunity to meet in the closed session with the Board to tell them her side of the story.
Taking the time to examine the opposing party’s interest or just giving the party the opportunity to express her concerns can lead to simple resolutions. I have represented employees who have withdrawn their grievances in exchange for an apology. While some may feel that it is petty for an adult to file a complaint over nothing more substantive than hurt feelings, the reality is that employees and parents often pursue complaints over equitable concerns. Regardless of how counsel may feel about the merits of such complaints, resolving an issue with a simple apology or dialogue between the parties is usually better, and certainly less costly, than proceeding through multiple levels of the grievance process.
Lesson 7: Don’t cut off your nose to spite your face.
Although Lesson 1 is that individuals are less objective than management clients, we must remember that administrators and board members are still people—and not immune to emotional reactions. I have represented clients who have been proposed for nonrenewal even after the employee submitted her unilateral resignation at the end of her contract. I’ve represented employees who were proposed for termination in order to “save” less than ten days on the contract. I’ve argued with district counsel whose client refused to accept the resignation of an educator that his client proposed for termination.
I have plenty of experience in dealing with emotional clients. I’ve represented clients who fought tooth and nail through a nonrenewal, only to turn around and resign after they have prevailed. Once a client asked me to file a grievance regarding her involuntary transfer which actually resulted in her moving from a campus and supervisor she hated to a campus and supervisor she loved. I asked that client to provide to me, in writing, a request to fight as hard as I could to get her returned to the campus she hated. After that discussion, the client declined to pursue a grievance.
I understand that a lawyer can give advice, make recommendations, and even plead with a client to change their mind, but ultimately, some decisions are the client’s to make. Nonetheless, it is important when dealing with clients to remember the Texas Lawyer’s Creed. It is the lawyer’s obligation to advise the client not to pursue a course of action that is without merit, or one that is intended to primarily harass or drain the financial resources of the opposing party.
More importantly, lawyers must advise their clients when the action the client wants to take will likely harm the client as much or more than the opposing party. In the situations presented above, most probably ended up costing the district much more than was necessary to achieve the outcome that the district wanted. It is the lawyer’s responsibility to be sure that the client understands the negative impact of the client’s choice. As the Creed states, “I will be loyal and committed to my client’s lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.” 7
Lesson 8: Attorneys can be fierce professional adversaries with people they consider colleagues and friends.
When I describe my experience of the practice of school law to other attorneys who do not practice school law, I frequently use the illustration of the Wile E. Coyote and the Sam Sheepdog. In that Warner Bros. cartoon, Wile E. and Sam clock-in, battle all day, clock-out, and then walk home together, seemingly as friends. Then they do it all over the next day. In my experience, the attorneys in the school law section are a lot like that. I zealously represented employees, and attorneys on the other side of the bar did the same for their employer clients. Although our clients might be involved in very contentious situations, the attorneys do not have to be antagonistic to be good advocates.
When attorneys respect each other professionally and work collaboratively, many times their clients are better served. Attorneys who get caught up in winning or beating another attorney can lose sight of their clients’ interests. In short, having good working relationships with opposing counsel usually benefits your client, and makes for a more harmonious work life. Besides, what goes around, usually comes around.
ENDNOTES
1. “Interest-Based Problem Solving Process and Techniques,” Community Ventures: Partnerships in Education and Research, WREP 134, Gray, Kelsey (1996).
2. U.S. Const. Amend. I, XIV; Tex. Const. art. I, § 27.
3. Op. Tex. Att’y Gen. No. JM-177 at 3 (1984).
4. Id.
5. Tex. Educ. Code § 11.1513(i) (Vernon’s 2014).
6. Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351 (Tex. 2005).
7. Texas Lawyer’s Creed.
