Religious liberty law firm giving policy advice to Central Bucks. Why no contract exists
Central Bucks School District officials have continued to consult a conservative faith-based law firm that has provided materials and advice adopted into its public policy without the board signing a formal representation agreement.
Emails obtained through Right to Know show that the district and its administration have been asked to sign a legal services agreement with the Independence Law Center, but have not executed the agreement. Despite the lack of paperwork, the district has consulted ILC attorneys on matters including the recent draft policy and administrative regulations for a proposed ban on transgender student athletes.
Those emails show the Board President Dana Hunter, Pupil Services Director Alyssa Marton and Superintendent Abram Lucabaugh were corresponding with the ILC between January and March. The Independence Law Center and its parent organization, the PA Family Institute, have influenced districts in Pennsylvania with their pro-bono advice and legal services.
However, it is unclear exactly what ILC and the district have worked on together as the emails are not always specific.
For example, ILC senior counsel Jeremy Samek, and its ILC’s Chief Legal Counsel Randall Wenger, and Lucabaugh were part of a Zoom meeting under the topic “JS RW Central Bucks,” according to an Feb. 7 email. A Feb. 22 email to Marton had the subject line: “Policy follow up,” which appears to refer to virtual meeting on March 2.
The district denied a Right to Know request for copies of any electronic records involving the February and March meetings claiming none exist.
In March, it appears the ILC was consulting on what would become Policy 123.3, which garnered a first vote of support at the Oct. 10 meeting of the board.
In a March 14 email, with the subject line “Confidential AR 123,” Samek wrote to Marton and Lucabaugh that he was providing them “AR language as requested.”
“I’ve also attached the PIAA bylaws which are highlighted to show they treat female going to male teams to very few restrictions and males going to female teams is extremely limited," Samek wrote. "The PIAA punts the question of who is a boy and who is a girl to the school and this AR explains how that can be done in a non-arbitrary manner. Let me know once you’ve had a chance to review and we can discuss further.”
Policy 123.3 would restrict transgender students athletes. A draft was first released to the public at an August policy committee meeting, and it was advanced at the October meeting in a 6-1-0 vote.
Beginning of Central Bucks and ILC relationship
The relationship between the district and the Independence Law Center in Harrisburg has been kept behind the scenes since last year, when they began working together on language for administrative regulations for the district library materials policy, according to emails obtained through Right to Know requests.
Earlier this year, the district claimed in a Right to Know request response that no letter of engagement for legal services with the ILC existed. But months later, the district turned over documents that included the previously requested letter that district claimed did not exist.
CBSD committee found books not obscene Central Bucks committee: Policy, not pornography, led to removing two LGBTQ-themed books
Those documents included a Nov. 10, 2022 email, where Samek requested Lucabaugh sign an attached “representation agreement," which Samek added mentioned “our continued legal advice and updating to include assisting in the additional matters we discussed.”
The two-page “Contract of Legal Representation,” which offered pro-bono legal services, authorized the district to retain ILC to “continue to provide legal and policy advice regarding policies, administrative regulations and procedures,” and assist the district’s outside counsel and solicitor in matters related to Department of Education Office of Civil Rights complaints related to school policy.
Wenger had signed the document sent Lucabaugh, but the district said in a subsequent Right to Know request that no signed and dated agreement exists between the district and ILC.
Lucabaugh has no independent authority to enter into legal contracts. Retaining legal counsel and authorizing contracts are considered board action, which requires discussion and a vote at an advertised public meeting. Board minutes do not show such a vote concerning ILC occurring in 2022 or this year.
After the existence of the ILC representation letter request was revealed, the district backtracked and said it didn’t provide the letter when originally requested through RTK because it did not consider it a responsive record since the contract was not executed.
Additional Right to Know requests seeking records including Lucabaugh’s response to the Nov. 10, 2022 email from Samek were denied by the district because it says no responsive records exist. The district also said no records exist showing any district response to Samek's request to sign the representation agreement.
The three Democrat minority members on the school board have previously complained they were not told about ILC’s involvement in district policy-making.
District Solicitor Jeffrey Garton also said he wasn’t aware of the extent of the board's involvement with ILC or the content of any of its legal advice.
“Through third parties, I learned that some board members may have had conversations with attorneys from the Independence Law Center, but I don’t know if the ‘district’ as an entity secured legal advice from the ILC,” Garton wrote in an email.
Garton added that nothing prevents individual board members from having discussions with other lawyers about district matters.
Letters of engagement are standard in Central Bucks
A review of online school board meeting minutes found that since 2018 at least a half dozen letters of engagement from private legal firms hired to perform work for the district have been filed with the district.
The lack of a written agreement outlining the scope of work a law firm is performing for a government agency is unusual, said Melissa Melewsky, a recognized expert in the Open Records law and staff counsel for the Pennsylvania NewsMedia Association.
Its absence also raises serious public transparency concerns since without a written agreement it is harder for the public to connect the district and an outside organization influencing policy, she said.
“If (an agreement) doesn't exist, if nothing else, it's bad practice by anyone seeking legal advice and giving it,” Melewsky added.
Latest on CBSD transgender athlete ban Transgender athlete policy passes first vote in Central Bucks. Here are the changes
CBSD board president on book ban policy Central Bucks board president talks district policy, altercation with Dom Giordano
This article originally appeared on Bucks County Courier Times: Central Bucks gets legal advice from Independence Law Center without contract
