LAS VEGAS — Four months ago, the Clark County School District hired state Sen. Mark Hutchison to defend its school board president, Carolyn Edwards, before the state ethics commission.
CCSD General Counsel Carlos McDade on July 24 “acknowledged and agreed to” terms proposed by Hutchison — a contract specifying hourly rates of $330 for himself and $175 for an assisting attorney.
Since then, the school district has amassed over $21,000 in legal fees and costs with the Hutchison & Steffen law firm.
However, Nevada law states that when such a special counsel is hired by the chief legal officer of a political subdivision — such as a school district — the compensation rate for that special counsel “must be fixed by the governing body of the political subdivision.”
So tomorrow, school trustees are scheduled to decide whether they will, in fact, give after-the-fact approval to the terms agreed to by Hutchison and McDade four months ago.
That agreement was introduced publicly in an article by Nevada Journal last week. It states, in part:
We base our fees on the hourly rate of those working on your behalf. My current hourly rate is $330.00 an hour. Michael S. Kelley will be the primary assisting attorney on this matter, and his hourly rate is $175.00. The Firm periodically reviews staffing decisions for cases and other attorneys may be assigned to your case as determined by the Firm. The hourly rate of other attorneys in our Film ranges from $240 to $550. The Firm’s rates are adjusted periodically.
By Oct. 4, the law firm had already invoiced the district $19,666 for legal services rendered through Sept. 30. The firm had also invoiced $1,420.96 for costs and $13.71 in late fees.
Although school district officials are just now getting around to asking trustees to “fix” Hutchison’s compensation rate, the topic of Hutchison’s hire had been broached with the board on Sept. 12, by local resident Melanie Thomas.
An attorney herself, Thomas knows how expensive legal fees and costs can run in representation in such proceedings. Accordingly, during public comment, she asked the board whether it had ratified McDade’s action and why Edwards was not being represented, instead, by McDade, who was already on the district’s payroll.
At the time, however, neither school board trustees nor staff responded to Thomas.
Thomas told Nevada Journal that her understanding is that, at the school board, “this is the only forum” where, when you “put your comments out there, … no one is going to respond.”
“I don’t believe they responded to anyone all evening,” she observed.
Ironically, it was the district’s former attorney, Donald Haight, who in 1991 beseeched legislators to allow trustees to respond directly at board meetings to the voters who elect them.
“[W]hat we are asking for,” testified Haight, “is the ability to allow the public to come forward, express their concerns, and get feedback from the board without taking any official action.”
State lawmakers then passed a new state law allowing the more-open lines of communication.
Thomas isn’t surprised that Edwards wants the best legal representation. “Who wouldn’t?” she asks.
The problem, she says, is that Edwards retained an expensive private attorney with high-profile name recognition — on the public’s dime — in an attempt to avoid accountability and responsibility for her actions.
“It does not seem likely that a firm of this magnitude would represent you,” said Thomas to Edwards in the board meeting, “for as much as you make in this position.”
Hutchison was hired by CCSD shortly after announcing he would be seeking the lieutenant governor’s post in the 2014 election and after Gov. Brian Sandoval had effusively endorsed him — tweeting that Hutchison “will make a tremendous Lt. Governor and I look forward to campaigning with him.”
He is also a former chairman of Nevada’s Ethics Commission; a current state senator and a primary sponsor of recently enacted provisions in the state’s ethics laws which will have significant impact in Edwards’ case.
Thomas says what she finds especially shocking in all this, “is that no one would have known” that the district hired Hutchison “unless they read the [ethics commission] pleadings or watched the hearing” of the ethics commission Sept. 18.
Under Nevada statute, it is the district attorney’s office which represents the board of school trustees — not the school district’s attorney.
So, the question is: Why isn’t the district attorney’s office representing Edwards in her ethics proceedings?
According to Mary Ann Peterson, the deputy district attorney assigned to the school board, the board of trustees is not required to use the district attorney for any of its legal needs and may hire other counsel to do any number of legal activities on its behalf.
“In this case,” explained Peterson in an email earlier today, “CCSD’s General Counsel was asked to represent Carolyn Edwards.”
Had Edwards chosen to be defended by some other counsel retained by the board, board action in a public meeting would have been required.
Choosing to be defended by the district counsel, however, did not require public action by the school board.
However, NRS 41.344, the statute under which the school district now says it hired Hutchison & Steffen, requires that it either be “impracticable” or constitute a possible “conflict of interest for the legal services to be rendered by the chief legal officer or attorney of the political subdivision.”
McDade, whose job is to represent the school district, could have faced a conflict of interest in representing Edwards, whose interest may diverge from that of the school district. He then, under the statute, hired the Hutchison & Steffens firm to represent the district in the proceedings.
Peterson tells Nevada Journal she does not know why she was not requested to represent Edwards in these ethics proceeding.
Since that September hearing — with Hutchison at her side, arguing her case — Edwards has entered into settlement negotiations with the ethics commission.
A stipulation agreement may be proposed to commissioners as early as next week’s Nov. 20 meeting, according to commission Executive Director Caren Cafferata-Jenkins.
Commissioners will address the proposed stipulation in an open session, says Cafferata-Jenkins, adding that the public is welcome to speak on the matter during public comment.
The Clark County school board will consider the employment of and compensation rate for the Hutchison and Steffen law firm at tomorrow night’s regular meeting of the board of school trustees, located in the board room at 2832 E. Flamingo Rd.
The meeting begins at 4 p.m.
UPDATE (11/14/2013 4:55 pm): Kirsten Searer, chief of staff and external relations for CCSD, contacted Nevada Journal to respond to the Nov. 13 story. "The district keeps an internal staff of nine attorneys to handle legal matters related to the district," and "when it is impractical to handle certain lawsuits or when we need outside expertise, we hire outside legal counsel to represent the District."
“From time to time, outside counsel request an increase in their legal fees and we consider those requests on a case-by-case basis.”
“The complaint concerns one email that Mrs. Edwards had sent while carrying out her duties in the course and scope of district business to raise funds to build and repair school buildings for our students, as approved by district counsel. The district defended Mrs. Edwards in the inquiry as authorized in Nevada law, specifically NRS Chapter 41."