By LIZ BUTTON
A legal review commissioned by the Rye City Board of Education following accusations of a conflict of interest involving board president has, in the majority of the board’s view, exonerated her.
However, concerns over the integrity of the review have been brought forward by one board member who said the law firm hired to provide a legal opinion has its own conflict of interest and only interviewed the board president and vice president Katy Keohane Glassberg about the matter.
School board president Laura Slack came under fire from board member Edward Fox on Jan. 27 after a settlement was reached with Osborn School third grade teacher Gail Topol that paved the way for her to return to the classroom following a lengthy suspension over allegations of improper coaching on state tests that surfaced last May.
Controversy ensued after the Topol agreement was announced when Fox accused Slack of inappropriately being involved in negotiations with the suspended teacher. Topol was legally represented by Kerri Ann Law, wife of Mayor Joe Sack, who, along with the City Council, had recently appointed Richard Slack, husband of the school board president, to an open council seat.
Fox has maintained that the other six school board members were never made aware Slack’s husband was being considered for a City Council position by the mayor while negotiations were taking place.
At the special board meeting on Jan. 27 that was called to vote on the agreement, Fox also said the public might suspect the settlement, which requires the Osborn School teacher to pay $2,500 to the district but not to admit wrongdoing, was conceived as a “sweetheart deal.”
A legal opinion was drafted on Feb. 4 by attorney John Gross, a partner at Ingerman Smith, the district’s law firm on retainer. The letter states that anything that can be called an “interest” must be financial or material in nature, arguing that Laura Slack had no duty to recuse herself from the negotiations and that there was no conflict of interest or appearance of such.
The Rye City Review did not obtain the legal opinion until Feb. 26, when the school board voted to waive attorney/client privilege. The Rye City Review first submitted a FOIL request for the document on Feb. 4.
The opinion references New York General Municipal Law 800 and Rye School Board Policy 2160, titled “School Officers’ and Employees’ Ethics” to support its conclusion. The opinion states the agreement with Topol also does not qualify as a contract within the meaning of conflict of interest laws.
Fox said he was not satisfied with the findings of the review and argued the opinion addresses issues and reaches conclusions that are based, at best, on state law, rather than Board Policy 2160, which is broader than state law.
“Although New York General Municipal Law 800 limits ‘interest’ to a [financial] or material benefit accruing as a result of a contract, Policy 2160 contains no such ‘contract’ limitation,” in its prohibitions against conflicts of interest, Fox said.
Slack said state law always takes precedence over board policy and Gross used both in reaching his conclusions. She said Fox is well aware of the fact that technically, board policy refers to a different statute of conduct when it comes to students, board members and employees.
With school board policy, the district can go broader in defining what it classified as right and wrong, she said. For example, a child may do something harmful to another child that the district deems worthy of suspension but that does not rise to the level of a criminal act. Even so, the district cannot write a school board policy that contradicts state law, she said.
As he questions the substance of the opinion, Fox also contends the way the review was commissioned was itself inappropriate.
Since the district employs Ingerman Smith attorney Gus Mountanos as its regular lead counsel, Fox argued it was inappropriate for the district to have Gross, Mountanos’ colleagues, write the letter. The fact that Gross wrote it proves the review was not an unbiased undertaking, he said; Ingerman Smith is the equivalent of a “hired gun” with incentive to exonerate its client.
Fox also claims the opinion was not written based on an independent review since the only facts Gross used were provided to him via one source, the board, in a series of phone calls with Slack and vice president Katy Glassberg.
The decision to seek the opinion was done in an executive session at the board’s regular meeting on Jan. 28, according to Slack, on the night following Fox’s initial accusations regarding the settlement negotiations.
According to New York State Open Meetings Law, which is echoed in school board policy 2330, a public body may conduct an executive session for a set of enumerated purposes, provided that no action by formal vote shall be taken to appropriate public moneys.
While Fox said the decision to authorize the independent review wastes taxpayer money that was not authorized to be spent, Michael Conte of Syntax NY, the public relations firm retained by the district, said there is no additional cost associated with the lawyer’s written opinion since the letter was produced under the existing retainer agreement with the firm.
The manner in which the review was commissioned still remains somewhat of a gray area, however, with the administration stating that no vote was taken by the board during the closed door meeting on Jan. 28 and, instead, the board asked Superintendent Dr. Frank Alvarez to reach out to Mountanos to have Ingerman-Smith prepare a legal opinion.
This action by the superintendent is routine and appropriate and does not require a vote by the board before the public, according to Conte.
Since Alvarez requested the opinion in a conversation protected by attorney/client privilege, this makes the decision exempt from New York State’s Open Meetings Law, according to Committee on Open Government Assistant Director Camille Jobin-Davis.
Despite the district’s defenses, Fox maintains Slack should have at least disclosed to the board the circumstances under which the settlement negotiations in which she participated took place, if only to be scrupulously compliant with policy for the public’s benefit.
Topol was one of four teachers implicated in the testing scandal that led to four suspensions. Another teacher, Shannon Gold of Milton School, has since resigned from her position with the school district, while the other two teachers, Carin Mehler of Osborn School and Dana Coppola of Milton, remain suspended awaiting resolution.