Written by John Face
Editorial
October 22, 2021
The Marshall Public Schools released a legal opinion by Thurn Law Firm P.C. that basically says that school board President Richard Lindsey has no conflict of interest. (below)
On the other hand the group Informed Parents of Marshall Public Schools who opposes the school bond issue requested a legal opinion from another source. Hewson & Vanhellemont P.C. and it gave a very detailed (below) opinion that says Lindsey has a conflict of interest.
School Board Conflict of Interest
Once you take the time to read both opinions you can make your own decision. City Watch would like to point out that when you are trying to prove a conflict of interest isn’t occurring on the school board, you shouldn’t commit a conflict of interest.
The school boards firm Thurn Law does have a stake in making this opinion if nothing more than in appearance. Marshall School Board Trustee Matt Davis’s brother is a partner at Thurn. Actually if you read the top of the opinion Thurn page you will see his name listed Raymond Davis. We will likely be told that Attorney Davis played no role in writing the opinion for the school district and that may be true and all of this is on the up and up.
BUT if you are trying to prove no conflict of interest wouldn’t common sense dictate as a law firm and school board you NOT use a law firm that looks tainted and in the family?
Here are the opinions:
October 18, 2021
Board of Education
Marshall Public Schools
100 E. Green St.
Marshall, MI 49068
RE: Conflict of Interest
Dear Members of the Board of Education:
I have been asked by the Informed Parents of Marshall Public Schools to evaluate a
situation facing the Marshall and Albion communities and provide a legal opinion based on the
facts presented. This opinion is based on the information provided to me and not as a result of an
independent investigation.
I. Facts
This opinion is provided based upon my understanding of the facts as they were provided
to me. Those facts are that the president of the Marshall Public Schools (MPS) Board of Education,
Mr. Richard Lindsay, Jr., is a licensed attorney who is employed at Abbott, Thomson, Mauldin,
Parker, Beer & Rick, PLC, a law firm in Jackson, Michigan. In the course of his employment as
an attorney, he represents Albion College in the area of property acquisition and contract review.
This representation began at or near the same time negotiations of a possible deal between Albion
College and MPS commenced. In this deal, the college would “donate” a piece of land to MPS in
exchange for MPS building an elementary school on the property.
Although there has been no contract or decision yet, it has become apparent that Mr.
Lindsay has full intention to continue representing the college and vote on any deal that may be
introduced before the board of education. Moreover, it appears the board of education will not
decide on a location until after the voters decide on the November 2, 2021 $45.5M bond proposal
in which nearly $17M is earmarked for the new elementary school to be built in the “Albion area.”
II. Issue
Whether a conflict of interest exists when a school board president, who is also legal
counsel for an entity in which the school district may enter into a contract or other agreement, and
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that legal representation is substantially related to the subject nature of potential contract or agreement and, if so, what measures must be taken by the school board president/attorney.
III. Law
There are two sources of law or authority that are both applicable in the current situation: one being the Revised School Code, MCL 380.1203 and the other being the Michigan Rules of Professional Conduct. The former is applicable to all persons that serve on a board of education while the latter applies to attorneys. An attorney who also serves on a board of education must abide by both.
A. Conflict of interest under the Revised School Code, MCL 380.1203.
A board of education is driven by statute. Snyder v Charlotte Public School Dist, 421 Mich 517, 528-29; 365 NW2d 151 (1985). Relevant here is a statute pertaining to conflict of interest. A school board member who “believes or has reason to believe” there is a conflict of interest “with regard to a contract or other financial transaction . . . shall abstain from voting . . . and shall disclose the specific conflict of interest.” MCL 380.1203(1). There is a presumed conflict of interest when a member has a “financial interest, or a competing financial interest, in the contract or other financial transaction.” Id.
The statute does not tell us what a financial interest is. It does tell us, however, what is deemed to not be a financial interest. There is no financial interest in a contract or other financial transaction between the school district and 1) a corporation in which the school board member owns—or is a beneficiary of a trust owned by the corporation—one percent or less of outstanding stock or less if the corporation is not listed on the stock exchange or, if it is listed on the stock exchange, when the school board members owns $25,000 or less of stock, MCL 380.1203(4)(a)(i), (ii); or 2) a professional limited liability company as long as the school board member is an employee and not a member of the company. MCL 380.1203(4)(a)(iii).
Further, the law exempts as being a financial interest, contracts between the school district and 3) a corporation in which the school board member is not an employee, officer, or director; 4) a partnership, firm, or other unincorporated association in which the school board member is not an employee, member, or partner; or 5) a firm or corporation that has an “indebtedness owed” to the school board member. MCL 380.1203(4)(b)(i) – (iii).
The exceptions under § 1203(4) explicitly apply to contracts or other financial transactions between the school district and one of the enumerated entities. Mr. Lindsey is not, nor is his firm, a party to a contract with the school district. Therefore, it is my opinion that the exceptions in § 1203(4) are not applicable to this situation.
Even if one were to read § 1203(4) as to somehow apply to the situation at hand, Mr. Lindsey would still be presumed to have a conflict of interest based upon the fact that Mr. Lindsey
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is an employee of a firm. See MCL 380.1203(4)(b)(ii).1 Moreover, just because an exception applies, that does not mean there is no conflict of interest. It only means there is no presumed conflict of interest. Therefore, one could fall within an exception and still have a very real conflict of interest considered in § 1203(1).
B. Prohibited representation under the Michigan Rules of Professional Conduct
The Michigan Rules of Professional Conduct (MRPC) are rules that apply to lawyers in the State of Michigan. A violation of the rules does not create a cause of action, but such a violation is a basis for disciplinary action against the lawyer. Mardigian v Goldberg (In re Mardigian Estate), 502 Mich 154, 173-74; 917 NW2d 325 (2018).
There are two ethical rules that apply. In relevant part, MRPC 1.7 provides that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests.” MRPC 1.7(b). And MRPC 1.11 says that “a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee.” MRPC 1.11(a). The rule goes on to prohibit a lawyer who also serves as a public officer from “negotiat[ing] for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially.” MRPC 1.11(c)(2). Additionally, a lawyer who is serving as a public officer cannot participate in a matter where he or she “participated personally and substantially while in private practice.” MRPC 1.11(c)(1).
The State Bar of Michigan publishes opinions interpreting the ethical rules governing lawyers. These opinions are nonbinding, but they are authoritative and can be used to provide guidance to lawyers when faced with situations that may run afoul from the rules of professional conduct.
In RI-292, the State Bar was asked a similar question to the issue facing the Marshall and Albion communities. In that opinion, the question was asked whether a lawyer who serves as an elected member of the city council may also represent clients charged with violations of city ordinances. RI-292, at 1. Interpreting MRPC 1.7 and 1.11, the opinion held that there is no automatic disqualification from representing the private client, but that the lawyer must apply MRPC 1.7(b) and 1.11 to the unique facts presented when facing a proposed representation. Id. at 3. There will be occasions where representation is permitted while other times it will be prohibited. Id.
1 I recognize the inconsistency between MCL 380.1203(4)(a)(iii) and (4)(b)(ii). This statute is not cited in a single case and turning this opinion into a literary on statutory construction would be superfluous as my ultimate opinion does not rest on either of these sections.
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In applying MRPC 1.7(b) and 1.11, RI-292 opined that “if the representation would reasonably require the lawyer to advocate a position contrary to positions taken as a member of the city council . . . such representation would most likely be prohibited.” Id. In such a conflict, “there is a duty to forego any portion of the private practice of law which would directly or indirectly conflict with the public duty or give the appearance of impropriety.” CI-594, at 2.
IV. Analysis
There appears to be conflict of interest when a school district begins negotiations with another entity while the school board president simultaneously serves as the lawyer for the other entity. Mr. Lindsey’s participation in any vote concerning the conflict appears to be a situation that was contemplated by MCL 380.1203 and Mr. Lindsey’s representation of Albion College on any matter before the school district appears to be restricted by MRPC 1.7 and 1.11.
A. MCL 380.1203 prohibits Mr. Lindsey from voting on any matter for which he has a conflict of interest or has reason to believe he has a conflict of interest
The statue on conflict of interest under the Revised School Code is clearly applicable to Mr. Lindsey. He is a member of the school board who, at the very least, has reason to believe—or should have reason to believe—there is a conflict of interest “with regard to a contract.” Accordingly, he shall not vote on the contract. See MCL 380.1203(1).
There is only one option when a school board member has or believes to have a conflict of interest—the member must abstain from voting. There is no discussion on the conflict or motion followed by a vote to determine if there is a conflict. There is also no provision for the school board to waive that conflict. A school board “possess only those powers which statutes expressly, or by reasonably necessary implication, grant to them.” Snyder, 421 Mich at 528-29. Under the statute, there is only one remedy and that is abstention by the conflicted member.
The plain and ordinary meaning of the phrase “with regard to” signals that the conflicted person does not need to be a party to the contract. See People v Ackah-Essien, 311 Mich App 13, 24-25; 874 NW2d 172 (2015) (words that are not defined in a statute are given their plain and ordinary meaning). The phrase “with regard do” is not defined in the statue nor is it a term of art that carries legal meaning. See id. Therefore, it is appropriate to consult other reference sources such as a dictionary or thesaurus to determine the plain and ordinary meaning. People v Wood, 276 Mich App 669, 671; 741 NW2d 574 (2007). Merriam-Webster offers a synonym of for the phrase of “with regard to” as “having to do with.” Merriam-Webster, available at https://www.merriam-webster.com/thesaurus/with%20regard%20to. This clearly means the conflicted school board member does not need to be with a party to the contract nor does it mean the conflict must be about a subject matter in the contract. The conflict will exist if it “[has] to do with” the contract.
Mr. Lindsey’s representation of Albion College on real estate and contract matters involving the school board is “having to do with” the contract—or potential contract—with the
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school district. He is paid by Albion College for representation on matters involving contracts and real estate, he is or would be privy to confidential communications, information, and knowledge of Albion College (not to mention the school district too), and he is or would be a participant in the transaction should it occur. Therefore, MCL 380.1203 requires Mr. Lindsey recuse himself from any vote on the matter and disclose his conflict.
With due respect to my colleagues at Thrun Law Firm, the opinion does not provide any analysis of MCL 380.1203, nor does it include any rational for its conclusion. It merely repeats Mr. Lindsey’s statement that he will not have a financial benefit. The opinion is completely silent on addressing the first, and most important sentence of the statute. Further, the opinion quotes only a portion of § 1203 which is the presumption of a conflict of interest. The opinion concludes, “based on Mr. Lindsey’s statement” that there is no financial interest, thus § 1203 does not apply. See Thrun Law Firm Opinion, dated October 13, 2021.
To be clear, it is my opinion that Mr. Lindsey is not presumed to have a financial interest under the statute—thus no presumed conflict of interest. The reason is not because Mr. Lindsey has no financial interest—because he does for the reasons provided in this opinion (after all, he is being paid by Albion College on matters to do with real estate and contracts). Mr. Lindsey is not presumed to have a financial interest is because under the plain language of the statute, Mr. Lindsey is not a party to the contract nor is he is a partner, owner, member, or employee of Albion College. The statute requires the board member to have one of those statuses for the presumption to apply.
Nevertheless, the plain language of MCL 380.1203(1) prohibits Mr. Lindsey from participating in any vote where he has a “conflict of interest with regard to” the contract or potential contract. See MCL 380.1203(1).
B. Mr. Lindsey is prohibited from representing Albion College on any matter with Marshall Public Schools
Not only does MCL 380.1203 prohibit Mr. Lindsey’s participation in any vote related to Albion College and the school district, the ethical rules for attorneys prohibits Mr. Lindsey, and his firm, from representing Albion College on any matter with the school district so long as Mr. Lindsey is a board member of the school district.
It is not very difficult to conceive why such a conflict would exist. The rules “are primarily intended to safeguard client loyalty and confidentiality and to prelude exploitation of public office for private advantage.” RI-043, at 2. Mr. Lindsey has publicly expressed that he will not financially gain from representing Albion College as its attorney and that he will vote on such a matter should be presented to the board. Yet, a conflict is not limited to Mr. Lindsey’s own financial benefit. See RI-126, at 2. Instead, the proper question is whether “there is an ‘inexorable conflict’ between the roles of council member and private counsel protagonist.” Id.
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Put another way, is Mr. Lindsey truly able to vote and serve his constituents in the district’s best interest without fear that he or his firm will lose a client? How is Mr. Lindsey, acting as a school board member, able to put a term into a contract that is detrimental to his client, Albion College? As an attorney, is Mr. Lindsey legally or ethically free to take action that is against the interest of his client? What would happen to Mr. Lindsey, or his firm, should he vote against a proposal that would benefit Albion College? Is it possible that the college would terminate Mr. Lindsey’s representation?
The answer to these questions resolves not only whether there is a conflict, but it also shows how Mr. Lindsey cannot serve two masters. He cannot zealously advocate for his client, Albion College, in a deal with the school district, while at the same time serve the best interest of the school district as a board member. This conclusion is supported by CI-997 where a lawyer was also an elected member of the county board of commissioners. There, the State Bar held that “[a]s long as the lawyer commissioner’s county is not directly interested in the client’s matter or not in potential conflict with interests of the lawyer’s clients, the representation is not prohibited.” CI-997, at 2. In the current situation, the school district is “directly interested in” Mr. Lindsey’s client’s matter and representation of Albion College by Mr. Lindsey is prohibited.
The legal opinion obtained by Mr. Lindsey is devoid of any discussion on whether Mr. Lindsey is in violation of the ethical rules by his representation of Albion College in a matter before the school district in which he is the school board president.
The ethical rules require Mr. Lindsey to withdraw from representation. See CI-997, at 2. A lawyer who is prohibited from representing a client, as in here, so too is the firm the lawyer works. See MRPC 1.10(a); see also RI-292, at 1(“[l]awyers from the firm of a lawyer who is a member of city council may not represent clients before the city council”). It is not enough to now screen-off Mr. Lindsey to allow other members of his firm to represent Albion College. See RI-43, at 3.
V. Conclusion
It is my opinion that Mr. Lindsey is prohibited from participating in any vote due to a conflict of interest under MCL 380.1203(1). Further, it is my opinion that Mr. Lindsey’s representation of Albion College on a matter involving the Marshall Public Schools is in violation of the Michigan Rules of Professional Conduct.
As stated in this opinion, Mr. Lindsey represents Albion College on matters relating to contracts and real estate. A possible business transaction between Albion College and MPS has been discussed where a piece of land will be “donated” to MPS in exchange for an elementary school to be built on the donated land. Mr. Lindsey is not only an MPS board member, he is the president of the board. Even if the land is donated to the school district, based upon the facts presented, the donation is not without strings. The donation is made with the expectation that the school district will build an elementary school. There has been a concern raised about Mr. Lindsey’s ability to represent the college as its attorney as well as the school district as an
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official. No matter what measures are in place or that could be put into place, Mr. Lindsey would
nevertheless still be subjected to a choice between which master he wants to serve more—and no
matter what, it will be to the detriment of the other.
An attorney must put the integrity of the system and the process before his or her own
personal gain or benefit. As a school board member, sometimes that requires bringing to light an
apparent conflict and abstaining from voting on that issue. Sometimes it requires an attorney to
decline representing a client on a particular matter. If, during representation the conflict comes to
light, it requires a lawyer to withdraw from representation. CI-997, at 2 (quoting CI-347).
Respectfully Submitted,
Benjamin J. Hall
Hewson & Van Hellemont, PC
248-968-5200
bhall@vanhewpc.com
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