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UPDATED: Judge orders injunction against school board

Jennifer Frew | The News Herald

David Burleson, center, embraces his daughters Heather, left, and Shannon, after Judge Richard Doughton made a decision in Superior Court that will keep Burleson as Superintendent of Burke County Public Schools until the court case is resolved.

Burke County School Board Controversy

More articles about the Burke County School Board Controversy

By Julie N. Chang | The News Herald

Published: June 3, 2009

Updated: 06/03/2009 11:15 pm

MORGANTON - Superior Court Judge Richard Doughton announced Wednesday that he will issue a preliminary injunction today to stop the Burke County school board from acting on its decision to terminate Superintendent David Burleson's contract on June 30.

An audible sigh of relief was heard throughout the courtroom as Doughton announced his decision almost precisely at noon.

"I think we were right," said Edward Hinson, Burleson's attorney, "and the judge saw that we were right."

The hearing started at 10 a.m. and — although action on a separate case occasionally interrupted the proceedings — Hinson and board attorney Rick Schwartz spent much of the time parsing the meaning of North Carolina General Statute 115C-271.

Paragraph (b) in the statute says a superintendent's initial contract must end on June 30. Paragraph (c) says the superintendent's contract may be extended up to four years from the date of extension. Burleson's contract ends on April 10, 2010.

Hinson claimed the board relied on the first paragraph to dismiss Burleson.

"We're going to interpret the law," Hinson said would be the logic. "We're gonna interpret the law as it suits us."

Schwartz argued the board's interpretation of the statute was correct and said boards across the state have consistently interpreted it the same way.

"I've been involved in virtually all the rewrites" of the statute, Schwartz said, contending that he understood the legislature's intentions.

Schwartz insisted that 115C-271(b) directly affects the end date of any contracts extended by 115C-271(c).

Doughton said the language of paragraph (c) clearly states "from the date of extension."

"It's clear as a bell to me what it says," Doughton told Schwartz.

The judge repeatedly said he was not ruling on the "wisdom" of the board's decision, but on the legality of the decision.

Hinson said the termination of Burleson's contract on June 30 would lead to "immediate and irreparable injury, loss or damage," because "he will lose his right to hold a position to which he is legally entitled;" "...the board will deny Burleson the opportunity to retire with full benefits;" "...the board will improperly fill the position, thereby preventing Burleson from competing to retain his position in the future;" and "...the board will adversely affect (his) ability to procure other employment" as a school superintendent.

Schwartz claimed Burleson would not suffer irreparable harm, citing several court cases, including one from the 4th Circuit Court of Appeals in a South Carolina case and two U.S. Supreme Court cases.
Schwartz said retirement eligibility is not a right and any financial losses are "easily calculable," not irreparable.

Regarding the claim of adversely affecting Burleson's ability to procure other employment, Schwartz scoffed at Burleson's use of "taint of the scandal" as a factor.

"What scandal?" Schwartz asked. "I don't know anything about a scandal."

"The board of education is responsible for determining the direction of the schools ... determining its destination and who is the pilot," Schwartz said.

Later, he said, emphatically, "The board does not want David Burleson as the superintendent beyond June 30, 2009... It would make for an intolerable situation."

Judge Doughton said that he believes there is probable cause to believe Burleson will suffer irreparable harm. And he said he believes there is reason to believe that Burleson will prevail in his breach-of-contract lawsuit.

Doughton told Hinson to prepare written findings and an order for the judge's signature at a hearing set for 10 a.m. today.

After the court session ended, Burleson said hearing Schwartz report the board's opinion was hurtful because he's spent the past 27 years doing what he thought was best for the students.

Burleson said he will continue to work for the children and would make an effort to work with the school board for the students.

"I'm very pleased the judge saw what we saw in the statute," Burleson said of the ruling.
Upon hearing the judge's decision, Burleson said he thought, "Lord, thank you for answering my prayer."

Burleson said the community's prayers have sustained him and his family through these tough times.

"The people of Burke County just don't know how much I appreciate them," Burleson said of the public support he's received.

Supporters in the courtroom surrounded Burleson after the announcement, offering handshakes, hugs and plenty of smiles.

Board members Tim Buff and Karen Sain made a swift exit while declining to comment.

Hinson, along with attorneys John Arrowood and Harrison Lord, all of Charlotte-based law firm James, McElroy & Diehl P.A., began work drafting an order for the injunction. They were in communication with Schwartz on Wednesday afternoon. Schools attorney Jon Jones said he expected the two sides may fine-tune the order at this morning's session.

Burleson's next step is to acquire a declaratory judgement on the merits of his lawsuit, Hinson said.
Court observers said the soonest that might happen is in July when Superior Court has its next civil-claims session.

Before granting the injunction, Doughton denied both a taxpayer's lawsuit and the county's motion to join that lawsuit.

Edward T. Plyler, Bruce Ervin and Jacquelyn L. Ward, all of Morganton, and Stephen Rudicil of Rutherford College filed a lawsuit May 19, the day before Burleson filed his lawsuit, seeking a judge's ruling on the validity of Burleson's contract.

They contended they and other taxpayers might find themselves in the position of paying two superintendents' salaries if the school board hires a replacement for Burleson while Burleson's own contract runs until April 10, 2010.

Doughton ruled that the taxpayers and the county did not have legal standing to bring their lawsuit, in part because the school board has not spent any money.

Burke County Board of Commissioners Chair Ruth Ann Suttle said the ruling in favor of the preliminary injunction in Burleson's lawsuit was sufficient.

"We're completely fine with (the judge's decision)," Suttle said.

Bruce Ervin concurred, saying the injunction was "icing on the cake."

Burleson's retention of his position until the case is resolved is "what the whole fight was about," Ervin said. "This is what we've been working for."