After Lander’s school board voted 4-1 to contract one of its members — who recused herself from the vote — as a temporary special-education evaluator, a Jackson-based law firm retained by anonymous residents is threatening to oust the member from the board.
While the law firm threatening to sue Fremont County School District No. 1 contends that thedecision to contract with one of its members creates a “blatant” conflict of interest, an attorney who trains public servants and is a former Wyoming House speaker disagrees.
“Wyoming law recognize(s) the state is a small place, and there are times when people who are active in the community may enter a contract with a public entity,” Tom Lubnau, a Gillette-based attorney and former House speaker, told Cowboy State Daily in an email. “Just because the only plumber in town is on the city council does not mean the city can’t get the plumbing fixed.”
An elected official offering a contract to his board must disclose the nature of his conflict of interest, not try to influence the board on the vote, and absent himself from the vote, Lubnau added.
How It All Shook Out
Fremont County School District No. 1 needs to contract-hire a temporary school psychologist to evaluate individualized education plan (IEP) needs in Lander’s schools through December, according to its meeting minutes and member statements.
School Board Treasurer Taylor Jacobs applied, as did another bidder who lives in Lingle, Wyoming.
Jacobs quoted her bid at $1,000 per student, while the Lingle counselor bid considerably more: $1,773.46 per student. That larger quote includes a fee of $1,300 per student plus $100 for lodging and $373.46 for mileage reimbursement each visit.
In total, Jacobs bid $20,000 for the project while the Lingle counselor bid $35,469.20.
With more flexible hours and twice as many years of experience, Jacobs outscored the Lingle counselor in two of the board’s four rubric points and won the district’s staff recommendation as well.
Though the board discussed a potential conflict of interest, its legal counsel said the board would be in compliance with state statute as long as Jacobs recused herself from votes regarding her contract, multiple board members told Cowboy State Daily this week.
The board’s legal counsel did not respond to a Thursday phone message request for comment.
The Vote
Six of the board’s seven members were present during the Sept. 17 meeting slated for the vote. Jacobs left the room before the discussion of her contract, bringing the board’s presence down to five.
But four ayes were still required because of the motion’s majority-of-seven threshold.
The motion to accept Jacobs’ offer failed on a 3-2 vote, with board Clerk Kathy Hitt and member Aileen Brew voting nay.
Hitt moved to accept the Lingle candidate’s offer, but no one seconded her motion.
“At that point we decided, ‘Jeez, we’re in a fix,’” board Chair Jared Kail recalled in a Thursday interview with Cowboy State Daily. “We don’t know what we’re going to do: there’s (federal IEP) statutory requirements here we have to meet. But we moved on, knowing we didn’t have a psychologist.”
Then Brew reconsidered her nay vote, saying she didn’t want to deprive the district of a school psychologist and put it in a bind, according to the meeting minutes.
Any parents with an issue could request a follow-up evaluation, the minutes add.
On a revived vote Kail, Vice-Chair Scott Jensen, and members Mike McConnell and Brew voted to accept Jacobs’ bid.
With Hitt as the lone nay, the motion passed.
Brew did not respond to a request for additional comment.
Hitt returned an email saying the board’s attorney told her not to comment.
Two Days Later
Two days after the meeting, Jacobs received a letter from Jackson-based attorney Neal Stelting, of Stelting & Gross, threatening a lawsuit to remove her from the board if she would not withdraw her offer or remove herself from both the board and the November election ballot.
“This law firm represents a group of stakeholders and constituents from your school district,” says the letter, also addressed to Kail as board chair and district Superintendent Mike Harris. “In the event that you ignore this demand, a lawsuit will be filed against you.”
The clients behind the action did not disclose their names in the letter.
No Idea Who Wants To Sue
Incumbents Jacobs and Jensen are competing to land two of the three school board seats up for election Nov. 5, with four more challengers vying: Mara Gans, Daniel McLane, Buck Tilton and Virginia Arbery.
But the at-large candidates have galvanized into two opposing groups. The conservative-leaning political action group (PAC) Families For Fremont 1 has endorsed Jacobs, Jensen and Arbery, while the PAC Lander Schools for the Future, which joined a political event with out-of-state left-leaning groups last month, has endorsed Tilton, Gans and McLane.
The group opposing Jacobs denied any involvement with the litigation threat.
“Lander Schools for the Future is focusing our time and energy on campaigning,” wrote the PAC’s director Carol Smith in a Friday text to Cowboy State Daily. “We are unaware of who took the legal action.”
Withdrawing
Though she still believes the board’s actions are within the law, Jacobs withdrew her contract offer this week.
The board had scheduled an emergency vote on the school psychologist matter Friday evening.
“(Our attorney) didn’t agree with the findings and the attorney’s decision about that Supreme Court case (referenced in the letter),” Jacobs told Cowboy State Daily on Thursday. “(But) he didn’t feel like it was just fluff: this attorney fully intended to proceed with his warnings, and just for me personally, that’s not a fiscally responsible use of our district’s funds and certainly not where I want to put myself.”
Jensen, who supports Jacobs’ bid for reelection, was far more blunt.
“This behavior by this anonymous group of so-called concerned citizens in Lander, they are choosing to hide behind their hired hand in Jackson to further what looks to me like petty political differences,” Jensen told Cowboy State Daily in a Friday interview. “And they’re willing to sacrifice the well-being of students to do it. It’s a very sad statement.”
Because, This Case
Stelting’s letter cited 1973 Wyoming Supreme Court case Haskins v. State, in which the high court affirmed a District Court judge’s decision to remove a school board member who was also serving as a teacher.
The letter concedes that a teacher is an employee whereas Jacobs would be serving as a temporary contractor. But it says the dynamic is the same: of an employer serving as her own subordinate.
“It is blatantly unlawful for Ms. Jacobs to be hired to directly perform contract services while also serving as a board member,” says the letter.
Stelting declined Thursday to comment on the record, saying the letter speaks for itself. He also declined to identify his clients.
More Laws Still
Stelting’s six-page letter cites Wyoming Statute 16-6-118, which says it’s illegal for an office-holder to become interested in his own name or contract in a matter on which he may be called upon to act or vote.
That law contains a carve-out, saying contracts can go forward if the contractor declares the conflict, doesn’t influence the board and absents himself from the vote.
As for Lubnau, he was unconvinced that Jacobs’ conduct was unlawful.
Wyoming law has more statutes on the subject than the letter cites, he said. The state’s criminal code contains a similar and clearer carveout, also instructing interested officials to absent themselves from considerations of their contracts.
Other sections of law governing other types of boards also contain the “absent” exception, he noted.
School Boards Group Not Sure
Brian Farmer, executive director of the Wyoming School Boards Association, declined to take a side on the matter.
This is an unclear area where a court case could lend some clarity, he said.
The issue, he said, is that Jacobs would be contracting in a position that an employee could hold.
“There may be a need for the courts to provide that greater degree of clarity,” Farmer told Cowboy State Daily in a Thursday interview. “I think it’s one we’re watching.”
Clair McFarland can be reached at clair@cowboystatedaily.com.
