White, BESE “Special Counsel” Subject to Attorney General Approval
If I learned anything from the July 01, 2014 BESE meeting, it is that Louisiana State Superintendent John White has latched onto the word clarity. Not that he offers any. Just that he spewed the word numerous times in the meeting.
What is “clear” is that White is situating a lawsuit against Governor Bobby Jindal. To do that, he will need to retain special counsel.
On July 02, 2014, the Times-Picayune published an article stating that White might need to get Jindal’s approval to “hire” special counsel.
In this post, I would like to offer a little–ahem–clarity on the Times-Picayune article.
If White, Louisiana State Board of Elementary and Secondary Education (BESE) President Chas Roemer, and their BESE-majority entourage want to “retain special counsel” as per BESE member James Garvey’s motion at the July 01, 2014, BESE meeting, based upon the Louisiana Code RS 42:263, the attorney general will need to approve such action even if the retained counsel offers to do so pro bono:
§263. Resolution requesting special counsel
A. No parish governing authority, levee board except as provided in Subsection B hereof, parish school board, city school board, or other local or state board shall retain or employ any special attorney or counsel to represent it in any special matter or pay any compensation for any legal services whatever unless a real necessity exists, made to appear by a resolution thereof stating fully the reasons for the action and the compensation to be paid. The resolution then shall be subject to the approval of the attorney general and, if approved by him, shall be spread upon the minutes of the body and published in the official journal of the parish.
It seems that the BESE board was aware of this; BESE member Jane Smith reported as much to me when we spoke on the evening of July 01, 2014, regarding Garvey’s motion. According to the “services” as defined in the Louisiana Procurement Code (LPC), BESE’s retaining special counsel does not fall under the jurisdiction of contract procurement:
“Services” means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end product other than reports which are merely incidental to the required performance. This term shall not include:
Employment agreements or collective bargaining agreements.
Personal, professional, consultant, or social services as provided by R.S. 39:1481 through R.S. 39:1526.
Services performed by lawyers as provided by R.S. 42:261 through R.S. 42:264.
Services performed by an architect, engineer, or landscape architect as provided by R.S. 38:2310 through R.S. 38:2314. [Emphasis added.]
Thus, the Division of Administration– which is currently auditing LDOE’s testing contracts with Data Recognition Corp (DRC) and has suspended LDOE’s contract(s) with DRC in the meantime– is not the agency from which BESE must gain approval in order to contract with special counsel.
The Louisiana Code does have another statute that could require governor approval as well as attorney general approval. However, that statute reads as though the governor and state agency are on the same side as the state agency “protects the public interest,” RS 42:262:
§262. Special attorneys
In the event it should be necessary to protect the public interest, for any state board or commission to retain or employ any special attorney or counsel to represent it in any special matter for which services any compensation is to be paid by it, the board or commission may retain or employ such special attorney or counsel solely on written approval of the governor and the Attorney General and pay only such compensation as the governor and the Attorney General may designate in the written approval. The approval shall be given in their discretion upon the application of the board or commission by a resolution thereof setting forth fully the reasons for the proposed retention or employment of the special attorney or counsel and the amount of the proposed compensation.
The governor and Attorney General shall not ratify or approve any action of a board in employing any special attorney or counsel or paying any compensation for special service rendered, unless all the formalities as provided by this Part as to resolutions and the like, have been complied with.
I think it is safe to assume that Governor Jindal would not agree to sign for BESE and White to hire a special attorney to sue him for not “protecting the public interest” in his attempts to remove Louisiana from both the Common Core State Standards (CCSS) and the Partnership for Assessment of Readiness for College and Careers (PARCC) consortium (and its tests).
So, a BESE suit under the guise of RS 42:262 is hardly likely.
However, Jindal is not a party to RS 42:263 approval– only the attorney general is.
Just thought I’d *clear* that up.
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