Linger: Using outside lawyer avoids conflict of interest in superintendent search

CHARLESTON, W.Va. -- The West Virginia Board of Education is making an unprecedented move by hiring an extra attorney to oversee its process for selecting a new superintendent, and former board president Wade Linger -- who spearheaded the task -- says "you can't put a price on ensuring something's done properly."The state Department of Education already employs two fulltime attorneys: Heather Hutchens-Deskins, who made $100,228 in 2012, and Sherri Goodman, who makes about $85,000.In addition, the Board of Education had to hire a private attorney to represent it in a lawsuit stemming from former state superintendent Jorea Marple's termination, paying more than $42,500 to the Charleston-based firm Pullin, Fowler, Flanagan, Brown & Poe.Now, the school board wants an additional attorney to provide guidance while it conducts a nationwide search for a new superintendent.When a public-interest group filed a petition in November alleging that the board violated open-meetings laws when it fired Marple, the defense was not covered by insurance, forcing the board to look to the Attorney General's Office, which assists all state agencies in legal matters, according to Hutchens-Deskins.However, there was a glaring conflict of interest: Marple's husband, Darrell McGraw, was still serving as attorney general at the time.McGraw lost the election to current Attorney General Patrick Morrisey on Nov. 6 -- just a week before Marple was abruptly fired, but Morrisey wasn't officially sworn in until January. That meant money from the state Department of Education budget would have to go to a private lawyer.Money from the education budget also will front the costs of additional counsel now being appointed to the board during its search for a new superintendent, Hutchens-Deskins said.The petition was later dropped and Marple is suing the board for wrongful termination. The school board plans to hire a consulting firm to conduct the nationwide superintendent search as soon as September. Jim Phares of Randolph County holds the spot in the interim.Linger recently reached out to Morrisey seeking additional counsel, saying the board needs help through the hiring process "to ensure compliance with all applicable state laws, as well as the proper drafting of any and all employment documents associated with the hiring of a new superintendent."Because the Attorney General's Office has decided instead to appoint outside counsel for the matter, the school board must pay an as yet underdetermined per-hour rate for services."Generally, when we use the services of the Attorney General's Office for these kinds of things, those are usually attorneys he [Morrisey] has on staff anyway, so it doesn't cost the taxpayers more money," Linger said. "In this case, he's going to go for some outside help, but that's not my call. That's his call."I certainly applaud it if he thinks this is what needs to be done to get it right," he said.
When asked why the Department of Education's current counsel is not sufficient for overseeing the process, Linger said "people don't understand there's a difference between the board and the department," and said he's worried about a potential conflict of interest.
"Given the fact that the subject is a search for a superintendent, I felt that it might put the legal people that work for the department, who report to Phares, in an awkward situation," Linger said. "In these kinds of situations, when we're dealing with high-level executives within the department -- specifically the superintendent -- it just seems like it would be more appropriate not to put employees in that kind of a conflict position.""I thought it was only fair to them and the system," he said.Linger has long voiced a concern for a clearer distinction between the state school board and the Department of Education, saying it's an issue he "was concerned about the entire time I was president."That push for more autonomy was the thrust of his argument when the board hired its first-ever director of operations in March, at $104,000-a-year. Then, the state's teachers unions protested, complaining of too much bureaucracy in the public school system.Linger recently finished his two-year presidential term and has been replaced by Gayle Manchin, wife of Sen. Joe Manchin, D-W.Va. Linger will continue to serve as a board member through 2017.Morrisey's office said it is seeking outside counsel because it does not have specific expertise in education and employment law, and the decision is "both cost-effective and in the interest of the public."
Other reasons cited in Morrisey's Request for Proposal for legal services, dated July 23, include not enough resources and impending deadlines."Seeking outside counsel for a complex issue -- including ensuring that a nationwide search is done in accordance with all West Virginia laws, ethical regulations and policies -- is not uncommon, if that is what the agency and its general counsel believe to be best for the state as a whole," Morrisey spokeswoman Beth Ryan wrote in an email Wednesday.The deadline for law firms to bid for the job is Friday.Linger said, because the state's past school boards have made mistakes in searching for a superintendent, it's better to be safe than sorry, pointing to when the board bungled its search for a new superintendent in 2000.After paying a search firm $30,000 to find a replacement for former superintendent Hank Marockie, the results came back with unqualified prospects."They spent all that money," Linger said, "and all that money was wasted."Reach Mackenzie Mays at or 304-348-4814.
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