An investigator who looked into alleged ethics violations in the Nancy Sebring episode concluded that top Omaha Public Schools officials did not know how graphic Sebring's sexually explicit emails were until newspapers published them.
It was therefore reasonable, he wrote, for two OPS officials to keep what they knew secret from the school board.
School board President Freddie Gray and district lawyer Elizabeth Eynon-Kokrda “were not fully aware of the graphic content and potentially damaging impact of Sebring's personal emails until they were published June 1, 2012,” according to Dennis Carlson, counsel for discipline for the Nebraska Supreme Court.
Carlson's opinion was made public by the district Monday after The World-Herald filed a public records request asking for it.
The investigator looked at the narrow issue of whether Eynon-Kokrda violated the Nebraska Rules of Professional Conduct that govern the actions of all the state's attorneys.
Attorneys are presumed innocent, and violations must be proved by clear and convincing evidence.
Carlson, responding to a complaint filed by Learning Community Council member Ernie Chambers, concluded that once Gray and Eynon-Kokrda became more aware of the extent and nature of the emails, they brought them before the whole board.
In hindsight, Carlson wrote, one could argue that the whole board should have been informed about the racy emails Sebring sent on a school computer while she was superintendent of the Des Moines Public Schools.
Carlson concluded, however, that the “paper trail” of communications revealed that Eynon-Kokrda “was not fully apprised of and did not anticipate the explicit nature of the emails” until The World-Herald and Des Moines Register published them.
Before the emails went public, Sebring had disclosed to Gray and Eynon-Kokrda that the emails prompted her resignation from Des Moines on May 9, seven weeks before her contract was to expire. Over the next three weeks, Sebring regularly updated Eynon-Kokrda and Gray — by email, by phone and in meetings — of her efforts to prevent publication of the emails.
Gray and Eynon-Kokrda also planned with Sebring how they would respond if the emails became public. Board members found out the real reasons for Sebring's resignation only when the emails became public on June 1 in newspaper reports. Sebring resigned from the OPS job the next day.
Carlson, in his opinion, wrote that under the circumstances Eynon-Kokrda's response to the emails was “reasonable and consistent with what she believed to be the best interests of OPS.”
“An error in judgment or an honest mistake by an attorney generally is not cause, in itself, for the imposition of a disciplinary sanction,” he wrote.
Carlson also decided that Eynon-Kokrda “fully complied” with her ethical duty to inform her client — in this case, the school board — by communicating what she knew about the emails with Gray.
“As the primary contact person for the Board of Education, Mrs. Gray received complete and regular status reports from Attorney Eynon-Kokrda,” he wrote.
Under the rules for Nebraska lawyers, Carlson wrote, there are certain situations when a lawyer for an organization has an ethical duty to go to “a higher authority,” such as when an employee or person associated with the organization acts against a legal obligation of the organization or in violation of the law.
But even in those cases, Carlson noted, the rules give lawyers broad flexibility to “proceed as is reasonably necessary in the best interest of the organization.” A lawyer doesn't have to contact the higher authority — the school board — unless the lawyer believes it is in the best interest of the organization to do so.
Chambers had accused Eynon-Kokrda of “gross negligence” in her handling of the Sebring situation. Chambers said this week that he intends to appeal the decision.
His 27-page grievance criticized Eynon-Kokrda for not informing the entire 12-member board about the sexually explicit emails.
He accused Eynon-Kokrda of violating the oath she took as a lawyer and the code of conduct for lawyers by scripting how Sebring and Gray would respond should news organizations discover the explicit emails.
He said the lawyer's primary duty was to the school board, not to Sebring, who he said was represented by another lawyer and whose interests conflicted with those of the district.
Chambers questioned the explanation given by Gray and Eynon-Kokrda that Sebring misled them about the nature of the emails — something Sebring denies. He noted that Sebring had told the two officials that the emails were “problematic.”
He said Gray and Eynon-Kokrda knew Sebring had contemplated an injunction against the Des Moines Register to prevent the emails' release, compared them to the content in Cosmopolitan magazine and suggested that the emails contained “intimate details of my personal life, including my sexual preferences or habits.”
Carlson dismissed the notion that Eynon-Kokrda had a conflict of interest in simultaneously representing OPS and advising its superintendent-to-be.
Carlson cited Eynon-Kokrda's response to the grievance, in which she maintained that OPS and Sebring, throughout the course of events, had the same interests.
They both wanted to protect OPS “by working toward a successful transition of superintendent responsibilities while avoiding unnecessary negative publicity that might undermine Dr. Sebring's ability to discharge her duties as Superintendent-Elect and the Board's ability to exercise its duties with impartiality,” the response said.
Asked for comment on Carlson's opinion, board member Marian Fey said, “As always, the focus should continue to be on what is best for students, but it is good to have another item of distracting nonsense out of the way.”
Board member Justin Wayne, an attorney for Union Pacific, said he is glad Eynon-Kokrda was cleared of ethical violations, “although as an attorney, I would have taken a different approach” on the Sebring situation.
Fey and Wayne were appointed in August to a board committee given the task of reviewing board policy on how members get and share information with their attorney. The committee is also looking at best practices and what policies are in place elsewhere.
Fey requested formation of the committee, which Gray appointed. It is expected to come up with recommendations, possibly by December.
Wayne said the committee has met but has “not made any progress about what we're going to do about legal services, which was promised to the public.”
Fey said the committee has been meeting and will look at how legal counsel is used by the board, what's efficient, how counsel communicates with the board, and if an in-house attorney would be useful in some cases.
Gray and Eynon-Kokrda didn't return calls seeking comment.
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