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Judge, not a jury, will hear lawsuit

Burke County School Board Controversy

More articles about the Burke County School Board Controversy

By Steve Welker | The News Herald

Published: August 26, 2009

Shelby, NC - After a brief interlude in Cleveland County — a hearing with both serious court business and some laughter (see sidebar story) — the Burke County Board of Education's case against the county commissioners will resume at 9:30 a.m. today in Morganton.
Judge Donald Bridges of Shelby will preside; there will be no jury.
After hearings on motions Monday and Tuesday, today's court action is expected to center on the lawsuit itself. The school board wants the court to decide how much money the county should provide to operate the Burke County Public Schools and to order the county to pay it.
Wednesday's hearing in the Cleveland County Courthouse took less time than it takes to drive 46 miles to Shelby. Those who made the trip included Burke County deputy clerk of court Justina Bryan; the county commissioners' attorneys, Larry McMahon and Redmond Dill; school board attorneys Jon Jones and Richard Schwartz; and school board Chair Tracy Norman.
Some people might consider the expense ironic because Bridges said he based part of his decision about the jury on everyone's desire to avoid unnecessarily spending the taxpayers' money. However, the judge made it clear he was prepared to go ahead with selecting Cleveland County jurors to hear the Burke County case.
"I'm reluctant to go forward without a jury," Bridges said after opening the session shortly after 9:30 a.m.
The state statute behind the lawsuit specifically allows either side to request a jury trial. The county commissioners asked for one and Bridges granted their request. The county withdrew its motion Tuesday after Bridges announced his intention to seat an out-of-county jury.
Bridges on Wednesday asked again whether the county still wanted a non-jury trial and whether the school board agreed. Both said yes.
Bridges said he decided to grant the request both to save money and to possibly streamline the case. Two similar lawsuits in other counties took five to nine days in court; one required three or four days for jury selection alone.
After ruling on the jury issue, Bridges asked whether both sides were ready to resume the case at 2 p.m. Wednesday in Morganton. Both agreed, but Schwartz said he would appreciate a delay until today.
Ill from what he believes is a cold, Schwartz lost his voice after hours of talking in court Monday. He said he had a feverish night Tuesday. And he said he just learned his secretary in Raleigh is out with a case of flu.
In what might prove to be another irony of what some local attorneys describe as this "peculiar" case (because of its origin in a rarely invoked state statute), Schwartz was at Monday's meeting where the board of education heard an update on the schools' plans for combatting the H1N1 ("swine flu") virus.
The board on Tuesday night had an emergency called session. It passed two resolutions. One asks the Burke County commissioners for "reconciliation funds" of $234,000 to more than $435,000 from 2007-08 and of almost $252,000 to 41.82 percent of 2008-09 ad valorem (property) tax revenues plus "Medicaid hold-harmless funds" of $900,000 for both 2008-09 and 2009-10. The other resolution asks the county to pay $7.45 million from one-cent sales tax revenues in 2008-09 and 2009-10 into the school district's capital-outlay funds.
The judge asked at one point Tuesday whether the school board formally had requested the money from the county commissioners. In response, Schwartz said, the school board did so Tuesday.
The county commissioners could consider the requests when they meet on Tuesday. However, their lawyers already said in court that the commissioners believe they're not required in 2005 and 2008 consent decrees to reconcile the schools' share of anticipated tax revenues with the actual tax revenues. And the lawyers said the county is using the $7.45 million to pay off the loan to build Patton and Draughn high schools.
Before leaving Shelby, Schwartz said the school board on Wednesday afternoon, as ordered by the judge, would deliver documents the county requested. Included are records of the schools' legal expenses since April 1.
The News Herald also requested and received details of 6900 fund outlays for legal expenses. The 2008-09 total is $93,225.
The school district in the past fiscal year paid $2,237 to Starnes, Aycock, Haire, Hogan, Saunders & Rigsbee of Morganton for Sam Aycock's services as school attorney; $6,283 to Groome, Tuttle Pike & Blair of Lenoir for Eddie Blair's services as interim schools attorney; $11,343 to Roberts & Stevens of Morganton for Chris Campbell's services as special counsel; $40,680 to Simpson, Kuehnert, Vinay & Jones of Morganton for Jones' work as schools attorney since September; and $32,684 to Schwartz & Shaw of Raleigh for services as the school board's special counsel.
Schwartz & Shaw's $24,592 May bill includes $14,206 for professional services concerning the superintendent's contract; $4,369 for work on the search for a new superintendent; and $3,888 for services related to the SACS CASI accreditation issue. The June bill includes an additional $5,263 for work on the superintendent's contract; $2,406 for the superintendent search; and $894 for the accreditation issue.
Both Jones and the schools' finance officer, Keith Lawson, said that as of Monday they had not received Schwartz & Shaw's bills for July.
Jones' invoice for July services arrived after the finance office processed The News Herald's request.
The schools' lawsuit against the Burke County Board of Commissioners is being heard in Courtroom No. 1 at the Burke County Courthouse, 201 S. Green St.