Duplin school funding trial to start Monday
By Steve Herring
Published in News on August 17, 2008 9:44 AM
KENANSVILLE -- The Duplin County Board of Education's lawsuit against county commissioners will begin as scheduled Monday in Superior Court and will be heard by a jury of Duplin County residents.
Jury selection could begin as early as Monday afternoon and the trial is expected to last about two weeks.
Superior Court Judge Thomas Haigwood on Friday denied three of four motions by the county to dismiss the suit. He also denied a motion by school board attorneys to either have outside jurors hear the case or move the trial to another county.
County attorneys had sought to have the suit dismissed on constitutional and doctrine of sovereign immunity grounds, both of which were denied. Haigwood also denied a motion to dismiss the current expense funding portion of the lawsuit.
A fourth motion to dismiss the capital construction aspect of the suit was taken under advisement by Haigwood until Monday. Haigwood told both parties he wanted additional information on the schools' construction needs before making a ruling.
The lawsuit, filed Aug. 6 after mediation between the two boards was declared at an impasse, seeks an unspecified amount of money and asks that the cost of the suit be borne by commissioners.
Under state law, the case will be fast-tracked, and will take priority over all other business of the court.
Should the court rule against the county, commissioners could be ordered to raise property taxes to provide more local funding for the schools.
"My understanding is both sides want a trial by jury as opposed to being heard by a judge," Haigwood said. "OK, well, at this point, and only this point, I am not satisfied that 12 jurors, fair and impartial, cannot be picked in this case."
He added, "When we start picking a jury it may become apparent such a jury may not be available.
Should that happen, the school board may renew its motion to bring in jurors from another county, or to move the case to another county.
School board attorney Brian Shaw argued that a "perfect storm" of controversy, widespread publicity and antagonism towards the school board made a fair trial impossible in the county.
County attorney Neil Yarborough countered that it was a "perfect storm" created by the school board that is now trying to benefit from it by saying a fair trial is impossible.
Shaw said that a ruling against the county would have a direct financial impact on jurors since it could require the county to increase property taxes to fund the schools.
Shaw said that the $5 million difference in current expense funding between what had been requested by the school board and the amount budgeted by the county could amount to an 18-cent increase tax increase. Funding the $63 million sought for school construction would add much more.
Haigwood asked Shaw if it wasn't true that any juror in a school budget case would have a personal interest.
Shaw responded that the large amount of money involved in the Duplin case made it unusual.
He argued that county commissioners and County Manager Mike Aldridge have been quoted in numerous newspaper articles about the potential for a court-ordered tax increase.
He said jurors would have a conflict of interest because of the financial impact since their decision would decide whether taxes might be increased.
Shaw cited also ongoing controversy over the school board's school consolidation plan that has generated petitions calling for school Supt. Dr. Wiley Doby's job and for a state investigation of the school board. He also noted a lawsuit over the school board's decision to close the School of Engineering at James Kenan High School at Warsaw.
He said it was not just a matter of public disagreement with the school board.
"I have never seen so much antagonism, controversy," he said. "I have never seen such a level of anger and unrest."
He was also critical of discussions by commissioners concerning a potential audit of the school board.
Shaw called it a normal response "to seek to discredit" the board of education and "to raise questions" about the board's operation.
Shaw thumbed through a thick folder of newspaper articles citing passages concerning taxes and comments made by commissioners and Aldridge. He also showed a clip from a local TV station on the protest at school board meeting last month. He argued it showed personal attacks against Doby.
He said a "cloud" would forever be over the outcome of the trial if it were heard by a Duplin County jury.
Yarborough countered that the protest, petitions and other actions by residents demonstrate that many people in the county are concerned about education.
Yarborough said he never thought he would see a board say "we are so hated we cannot get a fair trial."
The state law, he said, is clear that the trial be heard "in the county."
"A jury always has a stake in the outcome of a trial," he said.
Yarborough said he had confidence in a judge to ensure a trial is fair.
Moreover, he said the media coverage has been fair and balanced. In addition, the newspaper coverage has been regional, meaning a wide search would be needed to find people who had not heard of the case.
Yarborough contended that what the school board was complaining about--comments by county official about a possible tax increase--is "the same thing they say in their pleas."
"If you assume a perfect storm, what created it -- it was the school board," he said. "They are the ones who decide on a new school plan. They are the ones who decided to close the stem school. Basically they created the problem and now they seek to benefit from it -- 'see what we have done now we want it to be heard by someone else.'"
He said that the law does not require jurors to "be ignorant" of what is going on around them.
In arguing for the dismissal, Yarborough said that the school board had not considered the additional appropriations commissioners made. Nor, he said, had the school board voted to file the suit.
Shaw countered that the school board's original resolution invoking mediation had authorized the legal action should the board not approve of the mediation results.
He said Yarborough's reasoning would indicate that the mediation would start anew. Haigwood also asked Yarborough if that would not be the case.
Yarborough said he did not think that it would. Rather, he said the school board should have considered the new appropriation and voted to initiate the lawsuit.
He argued the school board had not followed proper procedure.
He said the county had funded completely the some $2 million sought for maintenance and repairs. Shaw agreed.
However, they disagreed on the facilities plan.
The budget presented by the school board had just one line about school construction totaling approximately $63 million. Yarborough said the school board failed to provide specific information about the plan in a timely manner to commissioners.
Shaw countered that commissioners had been aware of the plan since 2005, first approving then rejecting it in 2007.
Commissioners and the school board have been at odds for the past several years over the level of local funding.
The county's 2008-09 budget included $6.9 million for schools. The school board had asked for $13.2 million.
In a resolution that initiated the mediation, the school board called the funding inadequate to operate a free public school system.
School board attorneys said the system needs $9.5 million in local current expense funds just to operate. They are still asking for more than $12.5 million in local current expense funding.
During the mediation, commissioners appropriated an additional $800,000 for the school board's current expense budget and $1,010,203 to the capital outlay budget (no local funds).
To date, the county has provided about $7.7 million in local current expense funding.