Benton employment attorney Luther Sutter — who has served as legal counsel for the Pine Bluff School District since April 2012 — has raised eyebrows in some circles for the amount of legal fees charged to the district in that time.
But an examination of the context in which these fees were amassed puts the situation into perspective.
Sutter became the PBSD’s legal counsel at a time when the Pine Bluff School Board was in open conflict with then-district superintendent Jerry O. Payne.
Sutter represented the PBSD throughout the period during which the school board fired Payne, and Payne in turn filed suit against the school district alleging breach of contract and a violation of his procedural due process rights.
The lawsuit, filed in October 2012, was settled for $150,000 after court-ordered mediation between the parties on July 31.
“The reason that the case settled is because the legal budget would have been way too high,” Sutter said. “That is because there was no legal liability insurance policy in place when Payne filed the lawsuit. The first thing I did when I came on board was check to see if the district had a legal liability policy. When I found out that it didn’t have one I made sure that a policy was put into place. That effectively puts me out of a job because I don’t work for insurance companies. But it will save the school district a lot of money. I will still be around to make sure that the attorneys for the insurance company do their job.”
Sutter charged and received $93,605 for work done between April 27 and Dec. 3, 2012.
Spencer Robinson, whose resignation as attorney for the district prompted Sutter’s hiring, billed a total of $20,119 for the period from July 2008 to Jauary 2013.
The PBSD Board of Directors selected Sutter to represent the district’s legal interests after Robinson ceased his representation in April 2012.
Robinson, who had served as the district’s attorney for more than three decades, said in a letter to then-school board president Herman Horace dated April 12, 2012, that he would no longer represent the district because he believed the school board was was making decisions that he could not stand behind.
Sutter said he came to Pine Bluff after receiving a phone call from Horace.
Harold Jackson, one of two current board members who also served on the previous school board, said the search for a new attorney did not yield many names.
“Aside from Mr. Sutter no other names came up,” Jackson said. “Who would have wanted to tackle that anyway? Not many attorneys would want to.”
Jackson said the previous board felt comfortable hiring Sutter despite his lack of previous school district representation experience.
“When his name first came up we were told that Mr. Sutter had legal experience representing clients who were suing school districts,” Jackson said. “Even though he was on the other side, that experience meant that he had to know what was going on on the other side as part of his representation.”
When asked, Jackson said he was unsure who had first suggested Sutter to the school board.
Sutter sought to explain the sizable difference between his bills to the district and Robinson’s bills.
“I am well aware that the bills I have submitted to the Pine Bluff School District exceed those of previous counsel,” Sutter said in a May 3 conversation. “One reason is an increase in the number of legal matters since I became legal counsel for the district. The most significant reason is a failure by the school district to have an insurance policy to insure it against losses associated with litigation.”
Sutter said that while the district does have a liability policy in place now, it cannot mitigate the legal expenses accrued by the PBSD before the policy came into force.
“I found out about a month after I became superintendent that the district did not have a liability policy in place,” PBSD superintendent Linda Watson said. “After I discovered this we applied for one and there is a policy in place now.”
The district’s legal liability insurance policy is a $7,033-per-year expense and is renewed annually each February.
Despite the amount of money charged to the PBSD by Sutter, the predominant opinion among former and current PBSD school board directors is that he has done a good job for the district.
“The legal cases against the district were not getting the attention they deserved prior to Mr. Sutter,” Jackson said. “They were just hanging in the air. He came in and started resolving them. Some of those cases dated back to 2008 and 2009.”
Jackson said the money paid to Sutter has been money well spent.
“The district has gotten its money’s worth out of it,” Jackson said. “The cases are getting more attention day to day and he has settled several of them. When it comes to the legal fees charged by Spencer Robinson versus those charged by Luther Sutter, you can’t really compare them. There just wasn’t a lot getting done before. The district had no legal liability insurance for years prior to Mr. Sutter coming in. You need somebody who’s going to represent you.”
Jackson said Sutter told the board from the beginning that the amount of legal work that would be needed to clear up outstanding cases would not come cheap.
“Some of these cases go back four or five years so once all of this is cleared up the district will be looking good,” Jackson said.
Robinson responded to Jackson’s assertions.
“All I can say is that when I resigned there were two cases pending and they asked me to continue to deal with them,” Robinson said. “A lot of times the district would use lawyers from the Arkansas School Boards Association. When it comes to what people may say about the work that I did for the school district, I look at it as a situation where everybody is entitled to their opinion and so be it.”
Current board president Piccola Washington said she is satisfied with Sutter’s efforts to date.
“As far as I can tell, Mr. Sutter has been doing those things that we needed him to do,” Washington said. “He settled a couple of cases for the district recently. He has been coming down to Pine Bluff to get familiar with the community.”
Board secretary Leon Jones Sr. agrees that Sutter is getting things done.
“He seems to be handling his business pretty well,” Jones said. “He has been keeping us up to date and he has answered all of the questions I have had for him.”
Cost of counsel
From April 27 to Dec. 3, 2012 Sutter represented the school district in a total of nine cases .
Sutter billed at a rate of $350 per hour while work done by his associates was billed at $100 per hour.
“The $350 per hour rate is what I charge any client,” Sutter said. “What I don’t do is charge for every little thing, like telephone calls. For whatever reason there were only two lawsuits against the school district when I got on board but after I started representing the school district another three or four cases were filed.”
Sutter charged and received $62,450 between June 5 and Dec. 3, 2012, for general work done for the PBSD.
Sutter charged and received $23,285 for his representation of the district in a three-month case involving a parent who did not believe that her special-needs daughter was properly educated.
Robinson’s charges to the district broken down by academic year and superintendent include the last three years of Frank Anthony’s tenure with $1,275 for 2008-09; $1,212.50 for 2009-10; and $2,200 for 2010-11.
During the 2011-12 academic year, when Payne served as superintendent, Robinson’s charges totaled $11,224.14.
During the 2012-13 academic year Robinson charged the PBSD $4,207.75.
“If I had been representing the district at the time that they failed to hold a public vote on their decision to terminate Payne I would have driven to Pine Bluff and told them to go back and hold the public vote that is required by law,” Sutter said. “If that had been done then none of this would have happened.”
A May 15, 2012, charge of $2,100 to the school district by Sutter was itemized as six hours worth of preparing for and attending a school board meeting.
Sutter charged $4,900 on May 23 for five hours of research plus nine hours of preparing for and attending a meeting.
A May 26 charge of $4,200 was for 12 hours of reviewing prior board meeting minutes.
Four hours on May 28 preparing for Payne’s due process hearing cost the district $1,400.
Sutter charged the district $1,225 for three hours and 50 minutes of research on May 24.
In total Sutter was paid $24,410 for work done on behalf of the district from April 27 until May 31, 2012.
Sutter billed a total of $3,360 for work performed between Oct. 17, 2012, and Nov. 7, 2012, defending the district against the lawsuit filed by Payne on Oct. 15, 2012, in Jefferson County Circuit Court.
Terms of employment
Sutter does not have a formal employment contract with the PBSD but the informal nature of the relationship is not unique to the Pine Bluff district.
Robinson said his representation of the PBSD was on a case-by-case basis with no formal employment contract between him and the district.
A survey of other local school districts found that the lack of a formalized written employment agreement between those districts and the attorneys who represent them is not unusual.
Watson Chapel School District Superintendent Danny Hazelwood said that there is no formal agreement between his district and attorney Mike Dennis.
“It is kind of a gentleman’s agreement,” Hazelwood said. “There is no formal contract. He charges us at a rate of $210 per hour for the work that we bring him.”
Hazelwood said the legal work is paid for out of the district’s general operating fund.
White Hall School District Superintendent Larry Smith said Robinson handles the district’s legal representation.
“We deal with that on a case-by-case basis,” Smith said. “When we need legal opinions, we work with the attorneys with the Arkansas School Boards Association and they don’t cost the district anything beyond the dues we pay as a member of the association.
“When we need more in-depth legal assistance, we usually work with Spencer Robinson,” Smith said. “If it’s a court issue we typically go with him.”
Smith said Robinson charges the White Hall district $150 per hour for legal services.
Former Dollarway School District Superintendent Frank Anthony said that in the wake of the state takeover of the district in June 2012 all legal matters are handled by attorneys with the Arkansas Department of Education. Bobby Acklin is the current Dollarway superintendent.
Arkansas School Boards Association
Staff attorney Kristen Gould with the Arkansas School Boards Association saidit is typical for larger school districts to use both the legal services she can provide through district membership in the ASBA and outside legal counsel for actual representation.
“ASBA is a private non-profit helper organization for every school district in Arkansas and some charter schools,” Gould said. “Part of what they get from their ASBA dues is answers to legal questions from school board members and district administrators to the extent that they are working with the interests of the board.”
Gould said that when the line between serving a school district and advising an individual within a school district is about to be crossed, she puts the brakes on.
“What I do is actually pretty low-level,” Gould said. “I am basically a one-woman help desk. I don’t represent or do hearings. When it crosses from legal advice to legal representation, I tell them that they are going to need to secure outside legal counsel.”
Watson said that she has called upon Gould several times for just such legal advice.
“I have spoken to her a few times to get legal advice,” Watson said. “I know that once I called to get information about the school choice laws in the state. Last summer before the school board elections I called on behalf of some of the board members who wanted to know if the district could go to five-year board terms.”
Gould said school districts can save a substantial amount of money by taking full advantage of the services she offers.
“When a district finds itself in a bit of a financial pickle due to a loss of students and they need to activate their reduction-in-force plan to keep on top of things, they will work with me to draft the non-renewal letters if they are smart,” Gould said. “I can usually save them a fair amount of money. I am always happy to talk to paid counsel working with a school district.”