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School Board attorney's advice on hiring may have broken Florida law

STORY BY MEG LAUGHLIN, (Week of December 20, 2012)
Photo of Attorney Suzanne D'Agresta

School board attorney Suzanne D’Agresta may have broken the law by not suggesting in writing that district officials seek a second legal opinion on the controversial hire of a new Indian River School District human resources chief.

While the short-lived appointment of Stuart Singer ended last week when the superintendent and board members pulled the plug on his contract, disturbing questions  remain about D’Agresta’s role and her actions in arranging for the district to hire him through her law firm. 

Three school board members subsequently expressed concern over the legal advice they received on the issue from D’Agresta.

As an attorney entering into a business transaction with a client, D’Agresta was required by the rules of professional conduct governing lawyers in the state of Florida to advise her client in writing “of the desirability of seeking ... the advice of independent legal counsel on the transaction,” according to Florida law.

A public records request by Vero Beach 32963 turned up no such required document.

Instead, D’Agresta advised the school board and superintendent about the positive aspects of the business transaction with her firm, ignoring the legal requirement and the clear downside.

Her actions resulted in the school board having to rescind Singer’s contract after considerable embarrassment over circumventing the state’s pension law for public school employees and the potential conflicts associated with D’Agresta’s role in the hiring.

D’Agresta’s failure to advise the superintendent and school board in writing of the need to seek outside counsel violates Rule 4-1.8 of the rules of professional conduct set forth by the Florida Supreme Court.

And, it sets up a conflict of interest that is illegal.

“The original arrangement to circumvent the state pension law was sleazy but not illegal, but not telling the client in writing of the desirability of consulting another attorney about the transaction was illegal,” said professor Rob Atkinson who teaches professional responsibility at the Florida State University law school, where he has been a law professor for over 25 years.

“If the school board attorney didn’t comply with Rule-4.18, she is subject (if reported) to an investigation by the Florida bar and punishment by the bar,” said Atkinson. “My guess is, if someone reports her, the bar will issue a formal reprimand.”

That reprimand, if it occurs, would be a 10-year disciplinary smudge on D’Agresta’s record. “It is something attorneys dread,” said Atkinson. 

D’Agresta did not return four calls from Vero Beach 32963 seeking comment.

In fact, D’Agresta has been noticeably silent about the Singer hire since a few weeks ago at the school board meeting when she advised the board publicly that there was no conflict of interest because – although he was employed by her law firm (which the school district would pay for his services) – Singer would not be giving legal advice to the school board.

Her assessment did not consider a host of other possible conflicts, including her own in advising them on the business transaction she set up.         

At last week’s school board meeting, D’Agresta sat quietly as board members offered mea culpas for not asking more questions about hiring Singer.

Before the board voted to rescind Singer’s contract, board member Claudia Jimenez accepted responsibility for her part in the unethical hire.

“I recognize my own role in enabling this to develop,” she said. “For any possibly contentious issue in the future, I’ll ask for the pros and cons.”

Jeff Pegler seconded her contrition with his own: “I agonized over this decision after it was made,” he said.

Pegler said that no one should blame D’Agresta for the odd hiring arrangement which enabled Singer to get around state law, and which created a host of potential conflict of interest situations as well as an existing clear conflict of interest for D’Agresta.

Later, however, Pegler said: “My point in saying we shouldn’t blame Suzanne was that it was ultimately the board’s decision. We had most of the facts. But Suzanne is our attorney. She should have advised us to seek outside counsel. We skipped a lot of steps because she didn’t.”

Meanwhile, at a school district round table meeting last week, Jimenez asked D’Agresta for her professional opinion about an issue that Jimenez was quite certain – but not 100 percent sure – might lead to a potential conflict of interest.

After Jimenez briefly described it, D’Agresta told her: “I need to sit down with you and understand your connection in order to take a look at possible conflicts of interest and your ethical concerns.”

D’Agresta, after her own missteps, is advising Jimenez about ethics and a conflict of interest? “I’ll meet with Ms. D’Agresta and listen,“ Jimenez said later. “But I’ll have concerns. In the context of what happened, I’ve learned to listen more critically. “

School board member Matt McCain, who opposed the Singer hiring arrangement from the start and D’Agresta’s questionable involvement, told Vero Beach 32963 a few weeks ago that he would be inclined to talk to “a lawyer buddy” for advice about possible conflicts of interest involving the school board in the future. His inclination to seek outside opinions also suggests a waning of trust in D’Agresta.