Board members question attorney’s performance and to whom his loyalty lies

If Beaufort County School District Superintendent Jeff Moss has an issue with his employer, the Beaufort County school board, or if the board finds itself at odds with the superintendent, how would the district’s lawyer represent both parties?

It’s a question recently inducted board member Cynthia Gregory-Smalls asked school district attorney Drew Davis at a Saturday board work session.

Her question encapsulates the sometimes inherent contradiction in Davis’ job description, which states in his contract that he “reports to the Superintendent and the Board of Education.”

The discussion came at the request of at least three board members, some of whom have questioned Davis’ performance and to whom his loyalty lies.

Some instances of when board members have contended Davis misinformed or failed to inform the board:

▪  When Davis and Moss presented the board with the hire of Moss’s wife to a $90,000 district job in 2015, board member JoAnn Orischak said board members asked whether the hire would violate district rules and were told no by both. She also maintains that neither mentioned that Moss changed the nepotism policy shortly before the hire. Moss later pleaded guilty to two ethics violations.

▪  Last August, board member David Striebinger said the board “never got a solid answer” on what specific exemption board Davis cited to justify a closed session under the Freedom of Information Act.

▪  At the April 4 board meeting, Orischak said Davis misinformed Striebinger during a policy committee meeting that Striebinger, as committee chairman, cannot second a motion. The motion died.

At the work session, Davis noted how hiring him as the in-house attorney instead of relying on outside counsel has saved the district hundreds of thousands of dollars. For example, the district spent close to $520,000 in the 2010 fiscal year. With Davis’ salary of $125,000 and $90,000 in outside legal fees, the district spent close to half of what average legal fees accounted for before his hire, he said.

On Saturday, he answered Gregory-Smalls’ question of whom he would represent if the board and superintendent are at odds.

“There are two ways that can be handled,” he said. “One is I don’t represent either side. I don’t represent the superintendent. I don’t represent the board. The other, and I’m a little uncomfortable with that situation sometimes, is I go with the higher authority.”

In that case, he said he would represent the board, adding that, “This, what you’re describing, comes up very, very rarely.”

University of Central Florida education professor Dr. Kenneth Murray disagreed.

“Conflicts are common with the superintendent and board,” he said.

Based on his experience as a former teacher, principal and superintendent, Murray said having an attorney beholden only to the board is preferable.

Board member Christina Gwozdz echoed Gregory-Smalls’ concern for potential conflicts of interest.

“I find it very uncomfortable ... that he can be representing the employer — the school board — and the employee — the superintendent,” Gwozdz said.

“And never can I do that,” Davis said. “I can’t. As long as the interests are the same, meaning they’re the district’s interests, there’s no separate representation.”

He said Saturday that the board has, and should, seek outside counsel for issues involving discipline, evaluation of the superintendent and the superintendent’s contract. He also noted that he has never sat in on Moss’ evaluations.

Striebinger asked the board if they’re relying on their outside counsel — typically Duff and Childs, a Columbia law firm — enough.

“Do we use (Duff) as much as we should?” he asked. “And do we go there first instead of turning to Drew for board issues?”

Davis pointed out that when the board calls Duff, they will be charged for his time. But when Davis does, he said that’s not the case.

The increased cost of using outside counsel more often worried some board members, such as Geri Kinton and Evva Anderson.

“I don’t want to be calling another attorney,” Kinton said.

The board’s annual budget for outside counsel is $97,600, district spokesman Jim Foster said. As of Friday, with a little more than two months left in the fiscal year, the board has spent $57,622.

Immediate accounting for past years was unavailable, Foster said, so it is unclear whether the board has historically stayed under budget.

Chairwoman Patricia Felton-Montgomery, a former New Jersey superintendent who was elected to the board in November and immediately installed as its leader, repeatedly stated her position Saturday that the board use outside counsel as frequently as possible. She voiced that same opinion to Hilton Head Monthly in December, shortly before her induction.

At least three board members — Orischak, Striebinger and Gwozdz — requested the Saturday discussion of the board seeking separate counsel.

Orischak, who was unavailable to attend the Saturday discussion, initiated the request through email in early February, she said.

Felton-Montgomery waited more than two months to fulfill Orischak’s request for discussion. Asked to explain the delay, she said the reason the item had not appeared on a regular meeting agenda is because it will be added to the work session agenda.

“You have work sessions so you can discuss things more in-depth,” she said earlier this month.

The discussion on separate counsel had no motions and ended without a vote. Instead, the board agreed to another discussion of the issue when all 11 members are present, likely at the next regular board meeting.

This story was originally published April 23, 2017 at 2:05 PM with the headline "Board members question attorney’s performance and to whom his loyalty lies."