Rockingham County schools hire lawyer who’s suing Harrisonburg school board. And both boards share oversight of Massanutten Technical Center. Is there a conflict of interest?

Image of a court filing

Following the Rockingham County School Board’s firing of its longtime attorneys in a closed-door meeting last Monday, Harrisonburg City School Board members have called for an emergency board meeting of the Massanutten Technical Center on April 1 to discuss potential conflict of interest issues concerning the Rockingham County board’s new attorney. 

The issue is that city and county school board members jointly oversee Massanutten Technical Center, and the county board’s new lawyer is involved in a lawsuit against Harrisonburg’s school board. 

This saga began last week, when the RCPS board decided without a vote to end its decades-long relationship with BotkinRose Law Firm in Harrisonburg, the Daily News-Record first reported. During the same meeting, the board hired attorney Daniel Rose with the Harrisonburg law firm Litten & Sipe. 

Rose is the local legal counsel working with the conservative Christian group Alliance Defending Freedom, which is representing a small group of teachers suing the Harrisonburg City School Board over their interpretation of the board’s transgender student policy. 

HPCS and RCPS work together to oversee the operations of Massanutten Technical Center. Members of both boards of education sit on the technical center’s board, and the two systems share operating and capital expenses. The big difference is in the breakdown of costs. 

Rockingham County takes on the larger split of the operating budget: currently 81% of the budget. Harrisonburg pays the other 19%. All of the technical center’s workers are considered Rockingham County Public Schools employees, including the director, the teachers, and all staff. RCPS pays for around 80% of capital improvement projects, while HPCS pays the rest. The split in the student body reflects the budget split.

Because Rockingham County pays a majority of the operating and capital budgets, Harrisonburg school officials realized the Rockingham County board’s move to hire Rose meant that he would now be Massanutten Technical Center’s lawyer. 

When Kristen Loflin, a Harrisonburg school board member and the technical center board’s chair, heard about the change in legal representation, she said she was “shocked” and “disappointed that they had chosen to hire an attorney who was suing their neighboring division.” But she said she did not immediately grasp the implications of what that would mean logistically for the technical center.

“I assumed, not knowing the logistics immediately that because we have a split in terms of operating expenses that we would both have attorneys,” she said. “Then speaking with our superintendent [Michael Richards] Friday morning, I found out that whoever the Rockingham County attorney is, is the attorney for MTC as well.” 

The change poses a potential conflict of interest. The attorney suing the Harrisonburg School Board will also be the attorney representing a part of Harrisonburg’s school system.

The lawsuit is still going

The lawsuit between the Harrisonburg City School System and Alliance Defending Freedom began in summer 2022. Alliance Defending Freedom is representing three teachers and three parents who sued the school system after it adopted the model policies set forth by the Virginia Department of Education that the Virginia General Assembly passed in 2020. 

Rose’s name has appeared on court documents as one of the attorneys representing the teachers and parents since the initial documents were filed on June 1, 2022. 

In December 2022, Rockingham County Court Judge Andrew Baugher threw out the parents’ complaints, saying that the training material documents didn’t support the parents’ allegations that they would not be notified if their children sought to undergo a social transition. 

Baugher, however, allowed the teachers’ complaints to move forward, setting off a year of back-and-forth between the school system and Alliance Defending Freedom. The group has continued to ask for more documents in discovery. 

It could also mean that the attorney representing the school system could have access to documents at that school, a prospect that concerns both Loflin and the school board’s chair, Andy Kohen. 

The judge in the case ordered the city schools to submit documents during a hearing in February 2023. 

The school board, according to court filings, responded to Alliance Defending Freedom’s requests by producing over 5,000 pages of documents. In August 2023, Alliance Defending Freedom lawyers requested attachments to emails the board provided, and in October 2023, the school board produced another 2,013 pages of documents. 

In November 2023, Alliance Defending Freedom again asked for more documents, saying that some papers had embedded links to other documents. Alliance Defending Freedom wanted those. Again, the school board complied, sending an additional 2,140 pages of documents. 

The school board then asked for a protective order to “protect students and staff from a set of overly broad discovery requests that seek confidential information and information that constitutes ‘education records’ of non-party students,” citing the Family Education Rights and Privacy Act (FERPA). 

In a hearing on Feb. 28, the judge limited parts of Alliance Defending Freedom’s requests for further discovery moving forward.

The continual requests for more documents could pose an ethical quandary for Rose, who theoretically might have access to documents at Massanutten Technical Center as the legal counsel for the county school system. 

Kohen and Loflin said that while they were not lawyers and did not yet know what the county board’s legal counsel could access, both were concerned that it raised ethical questions. 

“It feels unethical, illogical, to have an attorney who is suing a school division be the attorney for the school division,” Loflin said.   

“It’s a conflict of interest and an ethical question,” Kohen said. “An ethical question on behalf of a law firm that would accept the responsibility to be a legal representative for an entity that it is suing.” 

Rose did not immediately respond to a request for comment Saturday. 

What the emergency meeting could do

Loflin, who sent an email Friday evening to both boards, requested the emergency meeting to discuss the change in legal representation. Loflin asked to meet April 1, following the city schools’ spring break. 

The meeting will be held at MTC. 

The lawsuit has cost thousands of taxpayer dollars to pay attorney fees, as well as to pay for staff hours to collect thousands of items for discovery and to prepare for meetings with attorneys, according to school superintendant Michael Richards.

Kohen said he believes that Massanutten Technical Center should choose its own lawyer. Because both school boards previously used BotkinRose for their legal counsel, there was no need for separate legal counsel. 

Loflin said she hopes that “cooler heads will prevail,” and that both boards can reach an agreement that does not involve a conflict of interest. Loflin said city school board members have a good working relationship with all board members, and said that she believes they are all in support of education. 

“I would like to think that when Rockingham chose this particular attorney, they were not thinking about our shared resource of MTC,” Loflin said. 

Kohen told The Citizen that no matter the outcome of the April 1 meeting, he and others on the board will make sure that the staff at Massanutten Technical Center are taken care of. 

“We will take every necessary action to be sure that they are well protected, and that no conflicts of interest or ethical conflicts exist, that would in any way, shape, or form endanger them,” Kohen said. 

Note: This article was updated to reflect the correct operating budget funding split between RCPS and HPCS, and to add the location of the emergency meeting.

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