Can HISD trustees trust their lawyers?

An Open Letter to the Trustees of the Houston Independent School District Board of Education

Dear Trustees,

In light of the recent news of Superintendent Terry Grier’s resignation, new questions are in order regarding a potentially serious conflict of interest or at the very least the public perception of one. My concern stems from a dual relationship with the school board’s own legal counsel — attorneys at Thompson & Horton LLP. These lawyers serve in two capacities: 1) as your counsel in negotiations with your sole employee, Dr. Grier, and 2) as Dr. Grier’s lawyers when they represent him and his staff on various matters as one of the district’s several law firms.

When the district and the superintendent engage in contract negotiations, Dr. Grier is represented by a personal attorney from an unrelated firm. For instance, he was represented by Adams, Lynch & Loftin, P.C. when he negotiated and signed his original 2009 contract. At that same time, the trustees used one of the law firms retained by HISD.

At first glance, this seems normal. Prior to working for Houston ISD, Dr. Grier had a personal attorney and the trustee’s had the district’s attorneys. But once Dr. Grier was at the helm of a $1.7 billion a year enterprise as CEO, the district’s lawyers became his lawyers — his counsel. Over the years, he and his staff have paid those lawyers for representation in countless legal matters. Fees to these law firms have surely been in the millions of dollars since Dr. Grier took office making him not only their client but their customer — and as HISD is the largest school district in Texas, a sizable one at that.

To illustrate the conflict, imagine the unfortunate situation of divorce. Would one spouse hire a lawyer from the same firm the other spouse did business with at their job? No. Nor would the state bar association’s ethics allow such a dual relationship.

Each year, when you, the school board, ask questions of your legal counsel regarding Dr. Grier’s contract — for interpretation on how to evaluate him and determine his $100,000 plus bonuses within the context of his employment contract — these attorneys were advising you on how to deal with one of their largest clients. How independent and unbiased do you think that advice was?

Here’s what I read from the State Bar of Texas on professional ethics:

TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT

Rule 1.06. Conflict of Interest: General Rule

“(b) … a lawyer shall not represent a person if the representation of that person:

(1) involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer or the lawyer’s firm; or

(2) reasonably appears to be or become adversely limited by the lawyer’s or law firm’s responsibilities to another client or to a third person or by the lawyer’s or law firm’s own interests.”

Either I am misinterpreting this requirement, the trustees were made aware of the conflict and consented to it (without regard to public appearances), or a number of lawyers inside and outside the district are choosing to ignore the application of this rule.

As you begin “closed session” deliberations with your lawyers, presumably from Thompson & Horton, about a separation agreement between the district and Dr. Grier, what kind of opinions do you expect? How will they advise you on determining bonus compensation for 2015 or for determining the value and implications of his intent to leave prior to the end of his current contract? Even though you might feel you have smart lawyers supporting you and you would hope they’re lawyers of strong character, can you, as our trustees, afford even the slightest perception of bias or impropriety? Should this even be a question in the minds of your constituents?

The students, parents, educators and tax payers throughout the district see this superintendent transition as a seminal moment for the district’s future. I know I’m not alone in expressing an expectation that in moments like this we expect you to have every resource at your disposal to make the best decision for us all — and a basic requirement is strong, independent legal counsel. Of course there is a routine procurement process (even one underway) for these type of legal services at HISD, but in light of Dr. Grier’s surprise resignation and the public perception created by the facts outlined here, finding new legal counsel for this specific matter must be of the upmost importance and done with urgency.

So I ask… When you meet in private on Tuesday morning, will you make it your very first action in the transition process to retain new, independent counsel to advise you on Dr. Grier’s exit and in the hiring of his replacement? I hope that you will.

The public has placed their trust in you. Please show us there is no reason to question that trust.

Sincerely,

Ben Becker

District I Resident & Parent

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