Kansas school district dodging questions about legal fees

(The Sentinel) – The Olathe, Kansas Unified School District administration and board of education are either refusing to answer questions about legal fees defending a lawsuit the district ultimately lost or didn’t request copies of the invoices to review.

Federal District Court Judge Holly Teeter on April 4 ordered the Olathe school board to pay Jennifer Gilmore’s attorney, Linus Baker, $259,233 in attorney’s fees — bringing the total cost to taxpayers to more than $700,000.

Gilmore had sued in federal district court after she was thrown out of an Olathe Board of Education meeting in 2022 for political comments board members found offensive.

Baker said in a phone interview on April 17, 2024, that his estimate was that the board of education had spent some $470,000 defending the case — a number that is quite close to the amount reported by the Olathe Reporter of $472,327.

On April 15, The Sentinel sent a Kansas Open Records Act request asking for “Records sufficient to identify all fees paid to any and all attorneys who performed legal services” on the case.

USD 233 Board Clerk Barbra Behm confirmed the $472,327 number but stated the district was “unable” to provide the records.

“Certain records, if they exist, are not made, maintained, or kept in the possession of the District. Because KORA only applies to ‘public records’ kept by a ‘public agency,’ the District has no records to provide in response to your request,” Behm wrote. 

Additionally, Behm tried to suggest that legal fees are “work product,” and not subject to KORA.

“Further, to the extent your request seeks communications related to legal services performed in the subject lawsuit, such records are closed under KORA.”

However, this simply isn’t the case, the issue of whether legal fees are subject to open records requirements has already been settled — and not in Olathe’s favor.

In Cypress Media, Inc., v. City of Overland Park, the Kansas Supreme Court found that the “work-product doctrine codified in K.S.A. 1998 Supp. 60-226(b)(4) does not offer a per se exemption to the production of attorney fee statements …”

When The Sentinel informed Behm of this and asked for the invoices, she involved the district’s general counsel, Christopher Pittman.

Pittman quickly dropped the “work product” claim without comment and simply stated, “Invoices for legal services provided to the District in the subject lawsuit were sent directly by the billing attorneys to Thomas McGee Group, the District’s insurance broker. The District does not possess the requested records.”

While this is fairly standard practice — the district likely filed a claim with the McGee Group, which then hired the attorneys to defend the suit — it seems unusual that the board would not seek to exercise some oversight of the matter, particularly given that initially all Gilmore was asking for was $1 and an apology.

“So the whole thing was to pay the dollar, admit you’re wrong, just apologize,” Baker said. “The majority of the board said ‘no, we want to make Jennifer an example. We’re never going to pay anything to her.’ 

“So that’s what they did, and two years later, they’ve spent $731,000 to avoid paying $1 and saying they’re sorry.”

The Sentinel asked Pittman if the district was unconcerned by the cost of the litigation, particularly as much of that cost will likely be passed on to taxpayers in the form of higher insurance premiums.

The Sentinel additionally asked:

• Did the district or board of education not receive – or simply not ask for – a detailed accounting of their attorneys’ billable hours? If not, why not?
• Did the district or board of education not stay on top of how much was being spent?  If not, why not?
• Has the district administration or board of education reviewed the invoices sent to your insurance company?
• Why were the bills for legal fees not submitted first to the district?
• How much will this cost the district in terms of increased insurance premiums?

As of publication, Pittman has not responded.