Duplin files to get school board's lawsuit thrown out
By Steve Herring
Published in News on August 10, 2008 1:53 PM
KENANSVILLE -- Duplin County attorneys citing constitutional grounds and the doctrine of sovereign immunity Friday filed a motion to dismiss the Board of Education's lawsuit against the county.
The concept of of sovereign immunity means that a government cannot be sued without its consent.
The school board's lawsuit, which was filed Wednesday in Duplin County Superior Court, seeks an unspecified amount of money and to have the costs of the action borne by the commissioners.
The two boards have been embroiled in a funding dispute for the past two months. Mediation failed to resolve the conflict.
The suit alleges that the county has failed to provide adequate funding to support a free public school system. It also demands a jury trial.
Friday there was speculation that school board attorneys might seek to have the case heard by a jury brought in from another county.
The county's motion filed Friday also contends the school board failed to follow procedural requirements; lacks personal jurisdiction over commissioners; failed to state a claim upon which relief can be granted; and failed to allege necessary facts.
Meanwhile, schools Super-intendent Dr. Wiley J. Doby Jr. and finance officer Carolyn Olivarez have been subpoenaed to have their depositions taken.
Doby is scheduled for Aug. 19 at 10 a.m. at the commissioners' meeting room, 224 Seminary St. Ms. Olivarez is scheduled for Aug. 20 at 10 a.m. at the same location.
No hearing on the motion or court date for the suit to be heard had been scheduled as of Friday afternoon.
However, state law requires the case be fast-tracked and to be scheduled for the first succeeding term of Superior Court, and it takes precedence over all other business of the court.
If that is not possible, a special term of Superior Court will be convened.
The next session of Duplin County Superior Court is scheduled to start Aug. 18.
Should the school board prevail, a judge could order the county to raise the property tax rate to help provide additional school funding.
In an affidavit attached to the motion for dismissal, county Manager Mike Aldridge said the school board has not considered and taken a formal vote on whether additional appropriations by commissioners are now adequate to support a system of free public schools.
Aldridge said in his affidavit that commissioners had appropriated an additional $800,000 to the school board's current expense budget and $1,010,203 to the capital outlaw budget thereby "fully funding the Duplin County Board of Education's capital outlaw request for repairs and maintenance."
He added that since the new appropriations, the school board has not voted to authorize the initiation of a lawsuit on its behalf.
Aldridge also said in an interview that a resolution attached to the lawsuit and marked "Exhibit A" is the same one the school board gave to commissioners in June triggering the failed mediation attempt.
That, he said, indicates the school board has not reconsidered the issue even though commissioners have made additional appropriations.
The resolution authorized school board attorneys to proceed with legal action if mediation results did not meet the board's approval.
Aldridge said in the affidavit that the Board of Education did not submit information as required by law and did not give commissioners "a reasonable time to provide the funds which they, upon investigation, shall find to be necessary for providing (the Duplin County Board of Education) with buildings suitably equipped."
Commissioners added two sets of additional funding appropriated during the mediation.
The first addition was $425,000 on June 30. The board added another $375,000 in current expense funds on July 28. It also agreed to appropriate $1,010,203 in additional capital outlay (not locally funded) and to seek $1.9 million in state lottery construction funding.
To date the county has provided about $7.7 million in local current expense funding.
The county budget as approved in June provided $6.9 million of the $13.2 million sought by the school board -- the second year in a row the schools' budget had been cut.
School board members have said the system needs $9.5 million just to stay even.
During a joint meeting of the two boards in June, school board attorneys said another $3 million was needed for new positions, programs and expenses for a total current expense budget of $12.6 million.