Professional Profile of Mark A. Ferguson
Mark A. Ferguson was admitted to the practice of law in the state of Missouri in 1990 and the state of Kansas in 1991. That same year, he was admitted to practice before the United States District Court for the District of Kansas. In 2007, Mr. Ferguson was admitted to practice in the United States Court of Appeals for the Tenth Circuit. In 2008, he was admitted to practice before the United States Supreme Court. Mr. Ferguson is also admitted to practice before the United States District Court for the District of Missouri, both Eastern and Western Divisions.
After nearly twenty years of active experience in the practice of law as a partner with the national law firm of Lathrop & Gage, Mr. Ferguson joined Lawrence Gates and Eldon Shields and formed Gates, Shields & Ferguson in March of 2009.
Mr. Ferguson has engaged in numerous civil trials, administrative proceedings, and appellate cases on behalf of individuals, businesses, employers, insurance companies, public agencies and educational institutions in the states of Kansas and Missouri. His case load includes a variety of litigation, ranging from real estate, business transactions, corporate, employment, insurance subrogation and education law. The primary focus of his practice is Education Law, Employment Law and General Litigation.
Mark Ferguson has significant expertise and experience in each of the legal areas of practice outlined herein. Collectively, the Firm has substantial experience representing clients, including employers, before municipal, county, state and federal courts in nearly all of the substantive areas of the law. Mr. Ferguson has substantial experience with policy development; review and/or drafting of documents and contracts, analyzing and reporting on potential conflict of interests, writing and arguing briefs and opinions; negotiations, including serving as lead negotiator on collective bargaining agreements; litigation; legal research and writing; advice and counsel, and other related duties as requested by clients.
Public Entity Law Expertise
Mr. Ferguson has represented numerous elected boards and public entities, including School Districts, Boards of Education, Boards of Trustees and other elected officials from political subdivisions across the State of Kansas. Mr. Ferguson is very comfortable working with public bodies and is very familiar with the legal requirements and nuances of Kansas Open Meetings laws and Kanas Open Records Acts. He has worked with and advised boards, entities and political bodies on numerous legal issues, including contract negotiation, collective bargaining, litigation, personnel matters and sensitive public controversies and litigation strategy.
The Firm has a rich tradition of working in the area of Government and Public Entity Law with unique and extensive experience (more than 35 years) in representing the following various relevant entities: The State of Kansas; all branches of the State (The Governor, The Courts and The Legislature); The Attorney General; The Secretary of State; The State Board of Education; The Kansas Department of Education; The Kansas Department of Transportation, The Kansas School for the Deaf, The Kansas School for the Blind, the Kansas Board of Healing Arts, the Kansas Turnpike Authority; and various other political subdivisions of the State (Universities, Community Colleges, School Districts, Counties and Cities). All of these entities are diverse and complex organizations, but share some common elements and similar legal topics: public, municipal, open government, Constitutional Law, public finance, Open Records Act, Open Meetings Act, election laws and numerous other topics that affect public entity clients.
The Firm understands the competitive nature of the law firm environment. The Firm has a deep appreciation for the economic considerations involved in representing a public entity and the need to remain competitive with pricing and cost; being responsible to the taxpayers and the general public with spending the resources.
Mark A. Ferguson has served as Legal Counsel to the Kansas State Board of Education (“State Board” or “KSBE”) since 2009. In his capacity as legal counsel to the State Board, Mr. Ferguson has gained significant experience in administrative law and procedures, including writing administrative regulations, and appealing and defending decisions of the Board, including licensure and sanction issues. Mr. Ferguson is uniquely familiar with the policies and procedures of State agencies and has substantial experience working on a variety of education law issues.
Mr. Ferguson has represented numerous governing boards and elected and appointed bodies. Mr. Ferguson has handled Disciplinary and Licensure proceedings and is very familiar with public access to government records and meetings under the Kansas Open Records Act (KORA) and the Kansas Open Meetings Act (KOMA). Mr. Ferguson has written and revised policies and procedures of the Boards and has written orders which have been successfully defended upon appeal.
Mr. Ferguson is familiar and well acquainted with how to work with elected and appointed Boards, the Board Members which are his clients, the executive in charge, the Board staff and the in-house legal department for the Board or Agency. Mr. Ferguson has good working relationships with the Boards and all personnel involved for the Agencies and governing bodies for which he has served in the past. Mr. Ferguson has substantial experience working with key leadership and administration and understands how to balance the diversified and varied interests and opinions of the individual Board members.
Mr. Ferguson has thirty (30) years of active legal experience, with at least 25 of these years in the role of representing governmental bodies, public entities, political subdivisions, including community colleges, charter schools, public and private educational institutions, school boards, school districts, educational cooperatives and other businesses and entities. Mr. Ferguson has familiarity and experience with the statutes, rules and regulations governing public institutions.
Mr. Ferguson has also been engaged by the Kansas Board of Healing Arts on several occasions to consult with its fifteen (15) member board and governing body with regard to a complicated licensure and sanctioning issues. Mr. Ferguson has also been approved by the Kansas Attorney General to provide legal services to these Boards and Agencies in the State of Kansas.
Mr. Ferguson has counseled clients on a variety of unique legal issues, including the following: FERPA; participation in civil and administrative proceedings before the EEOC and the Kansas Human Rights Commission; teacher administrative hearings; Teacher and Administrator Continuing Contract Law; contract negotiations; teacher and student due process hearings; IEP meetings and hearings; student, teacher and faculty grievances; internal investigations; drawing member district boundaries within a district; defending charges before the U.S. Department of Education and Office of Civil Rights; budget and finance workshops; employment litigation; insurance coverage and defense; mediation; Board Member election issues; charges of discrimination, harassment and retaliation; personnel policy review and revisions; executive recruitment and contract negotiations; board retreats and work sessions; executive sessions; facility planning and operations; construction; open meetings, open records and various related litigation.
During his career, Mr. Ferguson has personally served as legal counsel for numerous school districts, community colleges and municipalities. The engagement for higher education has been ongoing in nature, serving as General Counsel (or co-counsel) for the Johnson County Community College for fifteen (15) years. In other special engagements, the representation was on individual, but significant litigation, as in the case of Kansas City Kansas Community College when he was appointed by its insurance carrier to represent and defend the college in claims of sexual harassment, sex discrimination and retaliation brought by four individual plaintiffs. In other similar legal engagements, Mr. Ferguson was appointed to represent Barton County Community College and other political subdivisions of the state, including a first-class city in the defense of various employment claims and litigation.
In the more distant past, the specific engagements include traveling throughout Kansas and the representation of the following public school districts in the defense of employment and student litigation: Oswego U.S.D. No. 504 (allegation by a student of a deprivation of his constitutional right to an education related to suspension and expulsion, KOMA violation, discrimination and section 1983 claims); Troy U.S.D. No. 429 (section 1983 action alleging denial of due process and breach of written and implied contracts of employment); U.S.D. No. 504 (an action alleging violation of section 1983 and the Kansas Tenured Teacher Act); Renwick U.S.D. No. 267 (claims brought by former secretary alleging breach of contract, retaliatory discharge and the tort of outrage); LaCrosse U.S.D. 395 (appeal from the decision of the decision of the Board of Education terminating a non-tenured teacher); Mill Creek U.S.D. No. 329 (petition for writ of mandamus to force the school district to reapportion and redraw member district boundaries within the school district; Leavenworth U.S.D. 453 (appeal of teacher termination) and Fort Leavenworth U.S.D. 207 (ADA and retaliation claims by terminated teacher). In another instance, Mr. Ferguson was appointed to represent the Kansas City, Missouri School District in two (2) employment lawsuits.
Mr. Ferguson was selected to represent the Kansas State Board of Education (KSBE) as its attorney in 2009. Pursuant to the statutory requirements, Mr. Ferguson represents the KSBE, its elected Board members, the State Commissioner of Education, and the state Department of Education in various legal matters. This Firm has continuously represented the KSBE since 1985 and, as a result, has a rich tradition of working in the field, being involved in some of the key education and licensure cases and being involved in school finance litigation over the years.
Employment Law Expertise
Mr. Ferguson has been involved in litigation and defending employment claims alleging violations of Title IX, ADA, FMLA, IDEA, ADEA, Workers Compensation, First Amendment, Retaliation, EEOC, KHRC, ERISA, §1982, Race, Age, Sex and Sexual Harassment Charges.
The scope and representative engagements include: Advise on day-to-day personnel issues, progressive discipline and consider termination issues; Investigation of employment, personnel and student claims, before administrative agencies, commissions and hearings. Defend litigation in state and federal court. Attend Board Meetings, interact with Board Meetings, advise and consult with regard to open records, open meetings and general education topics. Serve as lead negotiator in professional negotiations and negotiate contracts with the KNEA for the Faculty of the JCCC. Defend litigation involving KORA, KOMA, ADEA, ADA, Title VII, Civil Rights Act, Pregnancy Discrimination, First Amendment and all types of litigation and claims arising in the educational setting, including claims with the EEOC, KHRC and the Office of Civil Rights.
Mr. Ferguson has familiarity and experience with the statutes, rules and regulations related to Kansas Administrative Procedures Act (“KAPA”), Kansas Judicial Review Act (“KJRA”), the Kansas Open Records Act (“KORA”), the Kansas Open Meetings Act (“KOMA”) and other laws that impact Boards, Commissions on Licensing Bodies within the State of Kansas. Mr. Ferguson has counseled clients on a variety of unique issues, including the following: licensure, standards, resulting attorney general opinions, defending complaints of violations of KOMA and KORA, discipline and revocation of professional Licensure, writing and amending administrative regulations, school finance, legislative matters, licensure issues, open records, open meetings and other complex legal matters. Mr. Ferguson has participated in a number of civil and administrative proceedings; teacher administrative hearings; contract negotiations; due process hearings; IEP meetings and hearings; student, teacher and faculty grievances; internal investigations; drawing member district boundaries within a district; defending charges before the U.S. Department of Education and Office of Civil Rights; budget and finance workshops; employment litigation; insurance coverage and defense; mediation; Board Member election issues; charges of discrimination, harassment and retaliation; administrative hearings before the Kansas Human Rights Commission and the Equal Employment Opportunity Commission; personnel policy review and revisions; executive recruitment and contract negotiations; board retreats and work sessions; executive sessions; facility planning and operations; construction; and various related litigation.
Working with Insurance Companies
Mr. Ferguson is very familiar with all aspects of litigation, working with outside law firms, insurance companies, members of the business community and trade associations and organizations. With over the thirty (30) years in the practice of law, Mr. Ferguson has had the unique opportunity to expand his legal work to include providing legal services to employers, educational institutions and insurance companies who exclusively write E&O, EPL, Legal Liability, School Leader Liability, School Legal Liability and Public Entity Insurance Policies. Many of the companies we work for have written insurance policies for large employers throughout the Kansas and Missouri. Our Firm has a unique understanding of the legal needs of employers, and insurance companies who insure employers.
The Firm has worked directly for Insurance Companies or a variety of legal matters, working directly for the Insurance Company or on behalf of its insured. The Firm is on several “approved lists” of designated panel counsel and regularly appointed to handle claims and defend litigation.
The Firm has also served as legal counsel for corporate clients, later being approved by the insurance company on behalf of the client/insured to work as special or appointed counsel, being asked to continue to represent the corporate client after insurance coverage is triggered. In other instances, the Firm has been approved by the industry related trade association or member organization and appointed by the insurance company to provide Employment Practices Liability (“EPL”) Insurance Coverage, Directors & Officers (“D&O”) Liability Coverage or Errors & Omissions (“E&O”) Insurance Coverage to the Employer.
The Firm has handled E&O, D&O, EPL, Professional Liability, School Leader’s Liability, Subrogation and other employment related claims under insurance policies for public entities, corporations and employers.
At one time or another, the Firm has worked for the following insurance companies: Great American Insurance Company, Philadelphia Insurance Companies, AMCO Insurance, Amtrust, ANPAC, Farmers Insurance, Fireman’s Fund, Hartford, American Family Insurance Company, HISCOX Insurance Co., United Educators and ACE. Additionally, the Firm has been approved by various insurance companies to serve as panel counsel to defend claims and litigation, serving as assigned legal counsel on select matters. These representative insurance companies have included the following: Apex/Summit Risk Insurance Company, Coregis Insurance Company, Employers Reinsurance Corporation, Great American Insurance Company, AIG Insurance Company, ACE Westchester Specialty Group, RSUI, State Farm Insurance Company State Farm Mutual Automobile Insurance Company, and United Educators Insurance Company.
The reasonable hourly rate structure charged by the Firm also creates opportunities for the Firm to remain the legal counsel for its existing clients and be selected by their insurance companies involved. Because of the competitive rate structure, the Firm is able to satisfy most Insurance Programs and Billing Policies of the Insurers. The Firm is accustomed to working with Insurance Companies, complying with Litigation Guidelines, Billing Requirements, Reporting Schedules and the budgeting and reporting processes of insurance companies. The Firm is sufficient in size and complexity to handle all of the legal needs which arise.
- University of Kansas, J.D. 1990
- University of Kansas, B.S. Business Administration, 1987
- University of Kansas, B.G.S. Political Science, 1987
- Missouri, 1990
- Kansas, 1991
- U.S. District Court for the District of Kansas
- U.S. District Court for the Western and Eastern Districts of Missouri
- U.S. Court of Appeals for the Tenth Circuit
- U.S. Supreme Court
- Gates Shields Ferguson Swall Hammond, P.A. (since 3/09)
- Lathrop & Gage L.P (5/90 to 3/09)
Awards & Recognitions
- Recognized for expertise in Education Law and Employment Law by Chamber’s USA, America’s Leading Lawyer’s for Business (Annually)
- Martindale Hubbell, BV Distinguished Very High Rating in Both Legal Ability & Ethical Standards; Peer Review recognition (Annually)
- Super Lawyers, Top Rated in Education Law, Employment and Labor Law (Annually)
- “Best of the Best” by the American Registry (Annually)
- America’s Most Honored Professional, The American Registry (Top 1% Annually)
- Best Law Firms in Kansas, First-Tier Ranking; US News & World Report (Annually)
- Kansas and Missouri Bar Association (KBA;MBA)
- Johnson County Bar Association (JCBA)
- Kansas City Metropolitan Bar Association (KCMBA)
- National Association of Subrogation Professionals (NASP)
- National Association of College and University Attorneys (NACUA)
- Council of School Attorneys (COSA)
- Kansas School Attorneys Association (KSAA)
- National Association of State Boards of Education (NASBE)
- Mo-Kan Anti-Vehicle Crime Association, past member
- Kansas City Metropolitan Insurance Fraud Task Force, past member
- Public Agency Training Council, Phase II Fire Investigation training based upon NFPA 921 & 1033
Areas of Emphasis and Representative Legal Work
- State & Federal Litigation
- Multi-Jurisdictional Litigation
- Appellate Briefing & Argument
- Education Law
- School Finance
- Licensure & Discipline
- Teacher and Administrator Continuing Contract Law
- Member District Boundaries
- Kansas Administrative Procedures Act
- Kansas Judicial Review Act
- Work with the US Department of Education
- Work with the Office of Civil Rights
- Special Education and Individual Education Plans
- First Amendment
- Discrimination, Harassment, Retaliation
- Kansas Human Rights Commission claims
- Missouri Commission on Human Rights claims
- Equal Employment Opportunity Commission claims
- Housing and Urban Development claims
- Prepare Position Statements before Federal, State and Local Agencies
- Non-Compete litigation
- Executive Recruitment and Contract Negotiations
- Internal Investigations
- Employment Practices Liability Insurance Policies
- Compliance, Federal & State Laws
- Handbook Review and Policy Drafting
- Day-to-Day discipline and termination review
- Prepare Employment Contracts
- Review Severance Agreements
- Family & Medical Leave Act
- Americans with Disabilities Act § 1981
- All Federal & State Employment Laws
- Civil Rights: All Protected Classes
- Age, Race, Disability, Sex, Sexual Harassment
- National Origin, Religion, Veteran’s status
- Gender, Sexual Orientation
- Retaliation and Whistle Blower
- Public Accommodation and Housing Claims
- Rehabilitation Act
- Labor Law
- Collective Bargaining Agreements
- Interest Based Bargaining
- Representation of Management and Employees in Labor Negotiations
- Wage and Hour
- Certification Proceedings
- Grievance Resolution & Appeals
- Government and Public Entity Law
- Open Records
- Open Meetings
- Policies and Procedures for Governing Bodies
- Election and Procedure
- Administrative Appeals; Due Process
- Kansas Judicial Review Act
- Judicial Review of Agency Actions
- Homeowners Association Duties and Boardsmanship
- Kansas Uniform Common Interest Owners Bill of Rights
- Statute Interpretation
- Drafting and Interpreting Administrative Regulations
- Attorney General Opinions
- Business Disputes and Litigation
- Contract Law, Enforcement
- By Laws and Minutes
- Partnership Agreements; Limited Liability Companies
- Corporate Formation and Business Entity
- Large Loss Scene Management
- Scene Inspection and Coordination of Joint Exam
- Fire and Explosion Analysis and Claims
- Propane, Gas and other Dangerous Materials
- Death, Burn and Catastrophic Injuries
- Product Failure; Product Liability
- Professional Liability
- Water Loss, Electrical, General Negligence
- Fire Suppression Systems
- Product Recalls
- Marine Claims
- Workers Compensation
- Auto and Health Insurance Subrogation
- Evidence Presentation & Spoliation
- Regional Subrogation Counsel for numerous sizes and types of losses on behalf of national insurance companies and as local counsel for national law firms
- Insurance Law
- Coverage Opinions
- Insurance Defense
- Declaratory Judgment Actions
- Interpleader Actions
- Bad Faith Litigation
- Errors & Omissions Claims
- Coverage Disputes
- Insurance Fraud and SIU
- Auto & Personal Insurance Claims
- Property Damage
- Premises Liability
- Real Estate
- Purchase & Acquisition
- Real Estate Contracts
- Lease and Rental Agreements
- Zoning and Land Use
- Home Association Disputes
- Condo Association Litigation
- Easements and Code Enforcement
- Adverse Possession
- Imminent Domain
- Inverse Condemnation
- Property Tax Appeals
- Mechanic’s Lien
- Home Inspection
- Interlocal Agreements
- Corporate & Business
- Software License Agreements
- Confidentiality and Non-Disclosure
- Business Succession
- Non-Profit Organizations
- Formation & Reporting
- Create Supporting Foundation
- Gifting Policies
- Donor Agreements
- Binding and Non-Binding Intercompany Arbitration
- Personal Injury & Worker’s Compensation
- Wrongful Death
- Occupational Injury &Disease
- Workplace Injury
- OSHA investigations
- Trucking Accidents
- Mediation & Alternate Dispute Resolution
- Municipal Court
- Traffic Tickets
- Municipal Violations
- Local Counsel for Litigation in Kansas and Missouri