School Board delegates records lawsuit representation hiring

During a special meeting on Sept. 3, the Douglas County School Board voted 4-3 to delegate Superintendent Frankie Alvarado the power to pick a lawyer to represent the district in a records lawsuit that has dragged on for the past year.

“It does not delegate the superintendent the power to act as legal counsel on behalf of the district,” said attorney Kendra Jepsen. “What this action item is calling for is to delegate the power to the superintendent to act on behalf of the district while engaging with legal counsel to move forward in this matter.”

Jepsen explained that the district lost representation in the lawsuit after an effort to settle was denied. A hearing on the lawsuit claiming that four trustees withheld emails is scheduled for Sept. 17 in Douglas County District Court.

“There’s a true conflict between the different factions on this board, so our independent counsel felt the need to withdrawal,” said Jepsen. “As counsel for the district, it is our job to represent the district as a whole and to try to determine what is the best interest of the district.”

Under the action, the superintendent would act on behalf of the district and work with counsel.

“At this point, the best interest of the district would be to delegate the authority to the superintendent to move forward with this matter with new counsel,” said Jepsen. “We hired him as the superintendent, and I think this board needs to trust him as the superintendent to move forward in this matter and act in the best interest of the district.”

While the action allows the superintendent to act on behalf of the district, it does not take away the right of the four trustees named in the litigation to retain their representation, nor does it take away the right of the remaining three board members to have access to their own legal counsel.

“The district is its own entity,” said Jepsen. “Yes, the three trustees (Wagstaff, Gilkerson, and Kangas) will have the ability to vote on the settlement, if there is a settlement that comes before the board, but council will be representing the district as an entity, not the three trustees as the district.”

Jepsen said the point is to avoid similar conflict that came up in May.

During the school board meeting on May 21, the board took action to authorize the superintendent to retain legal counsel to represent the district related to the lawsuit.

At the time Jeannie Dwyer was acting superintendent and the board approved 6-1 to authorize her to find outside representation.

“Upon certain testimony there may have been perceived conflict between the district and the trustees,” said Jepsen during the May 21 meeting. “We attempted to get conflict council with the Pool Pact, who declined representation, and now we are left with no representation.”

Jepsen said a public body may delegate authority to the chair or the superintendent to make any decision regarding litigation concerning any action or proceeding in which the public body or any member or employee of the public body is a party in an official capacity or participated or intervenes in an official capacity.

School Board Chairman David Burns explained during the May 21 meeting that the action is taking the board out of it and giving power to the superintendent.

“All it’s doing is taking legal counsel and us out of it and giving the superintendent the right to take care of the district and protect the district by what the superintendent sees is needed,” said Burns.

During the Sept. 3 meeting, Jepsen said delegating this power to the superintendent would not take away the board’s ability to vote on any settlement in the open records lawsuit.

“It would come before the board but may have to appeal to the ethics commission for an opinion on how any of the trustees should move forward,” she said.

Trustee Yvonne Wagstaff sought an amendment requiring Alvarado to bring any settlement back to the board, which was approved  4-3 with Gilkerson, Wagstaff, Kangas and Englekirk in favor. The motion as a whole passed 4-3 with Dickerson, Jansen, Burns, and Enlgekirk in favor.