Montana Attorney General Opinion 15-349

Opinion No. 349 School Boards-Attorney, Employment of-County Attorney-Settlement of Claims. HELD: Where the County Attorney is disqualified, a board of school trus- tees has the power to engage counsel to defend it when suit is brought against the hoard. A school board has authority to set- tle claims to avoid litigation if good faith is exercised. Whether or not a settlement should be made is as much or more a question of business policy than a question of law. September 25, 1933. You submit the following question;;. relating to a teacher's contract, to this offiL'€ for an opinion: "1. Can our trustees engage coun- sel to defend the school district in case suit is brought, and would it be legal to disburse district funds for that purpose? No provision has been made in the current year's budget for anything like this. The County Attor- ney is unable to represent us as he is disqualified. "2. Can the school district make a compromise settlement with Mrs. Amundson without having the matter settled in court, and would the trus- tees be empowered to make such com- promise settlement if they in their own judgment believe that it would be to the district's advantage or bene- fit to make a compromise settlement? "3. From the infonnation given yon above and herewith do you think it advisable to compromise or defend the claim she may ha\'e, if any?" OPI!\IO!\S OF THE ATTORNEY GENERAL Xo. 1: The county attorney is the legal adviser of all school trustees, allll shall prosecute and defend all suits to which a district may be a party. (Sec- tion 1328 R. C. M. 1921). In this matter, however, the teacher had l'etained him to represent her, priOlo to his election as county attor- ney, and he feels he is disqualified from acting in the case. As the county attorney is paid by the county and the state, it appears to us that when the county attorney is disqualified, the trustees being public officials and entitled to counsel in any action affecting the district, the trus- tees may employ counsel. Section 1022 R. C. 1':1:. 1921 provides: "l~very school district constituted and formed as provided in this title shall be and is hereby declared to he a body corporate, and under its own proper name or number as such corporate body may sue and he sued, contract and bc contracted with. and may acquire, pur- chase, and hold and use personal or real property for school purposes men- tioned in this title, and sell and dis- pose of the same." Statutory authority . granted to school boards to sue and be sued ha·s been held in numerous de- cisions to carry with it the necessary incident to employ counsel and to pay for counsel's services. State v. A\'en, 67 S. W. 752 (Ark.); Arrington v. .Tones, 191 S. W. 361 (Tex.) ; Dennitson v. School District, 17 N. H. 492; Mc- Caffrey v. School District, 42 N. W. 103 (Wis.) ; Taylor v. Miatthews, 75 S. }<j. 166 (Ga.). ~'ormer Attorney Gen- eral Foot held (Vol. 14 Attorney Gen- ('raJ's Opinions, page 181) that a high school board had no authority in itself to employ counsel, but would have the right to be represented by counsel, if the county attorney were disqualified. Since the budget makes no pro\"isiolJ for payment of speCial counsel, we do not see how he may be paid before a new budget is adopted. No.2: A school board has authority to settle claims to avoid litigation i'f good faith is exercised. No.3: It would appear that wheth- er you settle this contro\'ersy or stand a lawsuit is as much or more a matter of business l)()licy than a question of law, and the course adopted should be determined by the board of trustees. after conference with the county Ruper- intendent and other interested parties. who are in personal touch with the sit- uation. Local officials are provided to solve their own local problems and such controversies should be referred to this office only when the local officials ex- haust their ability to reach a solution. If the district goes to suit, however. we think it may be of some aid to call your attention to some of the facts gh'en to us. The minutes of the meet- ing of the board of April 5, 1932, recite that Mrs. Amundson was employed to teach the next term at the Grand Prairie School. If this action of the board has been revoked it does not ap- pear in the statement of facts. The ad- \'ice of Mr. 'Veasa to the clerk, to mark the contract null and void, was no more authOl;ty for such act than f<llch instruction from a stranger. Mr. ""easa had not qualified as a trus- tee at that time. and even if he hud. valid instructions in such matter could be given to the clerk only b~' majorit~· vote on a motion duly made and adopted.