School board's lawsuit moving to Shelby

The Burke County Board of Education's case against the county commissioners is on the move again. It will resume at 9:30 a.m. today at the Cleveland County Courthouse.

Judge Donald Bridges ordered both sides' lawyers to be in Shelby when he announces his decision about whether to have an out-of-county jury hear the case.

The judge denied the school board's motion for a change of venue, so the trial itself will be in Burke County.

The order came late in the day after five hours of hearings on both sides' motions, including the school board's request to move the trial.

School board special counsel Richard Schwartz — his voice almost gone after the strain of speaking for hours Monday aggravated a cold and sore throat — presented three affidavits and 30 exhibits in a 2-inch-thick file supporting the change of venue. He said the newspaper stories and letters and on-line comments from blogs, Facebook and Morganton.com all documented the intense hostility directed at some school board members, their attorney Jon Jones and Superintendent Rick Sherrill.

Schwartz quoted the judge's description — "unprecedented public outrage and animosity" — from last week's pre-trial hearings in Lincolnton.

He said there were personal attacks and death threats — "absolutely horrific to read" — and disruptions in public meetings. The public is "inflamed" about issues that have nothing to do with this case, Schwartz said, including school book selections, accreditation, the former superintendent's contract, one board member's racist e-mails and another who had a fellow board member frisked for a gun. There is "too great a threat" that the school board will not get "a fair trial and a fair shake before a fair and impartial jury" in Burke County, Schwartz declared.

Bridges said although the school board controversy is an emotionally charged issue in Burke County, he has confidence that a jury of local citizens could reach a fair decision. However, Bridges also said he believes the process of selecting a local jury would be very difficult and tedious.

Bridges then said he was in touch with the clerk of court in Cleveland County where a pool of jurors would be ready for questioning today.

The county commissioner's attorney, Redmond Dill, promptly withdrew the county's motion for a jury trial.

Bridges asked Schwartz and his colleague, Brian Shaw, whether their clients agreed. After a short backroom conference with board Chair Tracy Norman and Vice-Chair Tim Buff, the two attorneys said they would be "pleased" to have the judge hear the case without a jury.

Bridges took the requests under advisement. He'll decide today whether he wants an out-of-county jury hear the case. He also raised the idea of using an "advisory jury" of out-of-county citizens. Such a jury would act like any other, but its decision would not bind the judge. It's an unusual possibility — one with which none of the attorneys have any experience — and only the latest twist in this unique case.

Another surprise: the trial may not have any discussion of former Superintendent David Burleson, the board's effort to terminate his contract and his contract buyout. The judge provisionally granted the school board's "in limine" motion to prevent the sides from bringing up that matter because it may not be relevant to the lawsuit.

The lawsuit concerns the appropriate level of funding the commissioners must provide to operate and maintain the schools.

Attorneys for the school board and the county commissioners this weekend spent most of their time debating various motions. They spent all of Monday and half of Tuesday on the school board's accusation that the county commissioners violated a 2005 consent agreement concerning school funding.

Larry McMahon, the county commissioners' special counsel, argued that the 2005 order only resolved a dispute over use of a one-cent sales tax for the schools' capital-outlay expenses and whether the commissioners could use part of it to fund the schools' maintenance expense.

There was no dispute over the local expense budget for 2005-06 or future years, McMahon said, and no one asked the court to decide how the county would apportion property taxes to schools.

McMahon said the courts don't have jurisdiction over local government's discretionary decisions. In this case, that means the county commissioners annual decision about how much of the taxpayers' money they will allocate to the schools.

McMahon also said no court could decide in advance how much the schools should receive each year and every year "for as long as the sun sets over Table Rock."

That led Bridges onto another line of questioning. He asked both sides whether he has authority to overturn the decrees signed by fellow Superior Court Judges Richard Johnston, in 2005, and Robert Ervin in 2008. He also asked for an explanation of the two parties' intentions when they agreed to the consent decree four years ago.

The school board's attorneys say the two boards meant to have an agreement that minimized future disputes about school appropriations. Brian Shaw and Richard Schwartz both talked about the funding formula the decree appears to order the county board to determine, but which, they say, the county never formally adopted.

McMahon said he couldn't say what the two sides intended in 2005, but, regardless, it's not enforceable.
McMahon also answered the school board's allegation that the county wouldn't give the schools the one-cent sales tax's revenue for capital-outlays fund. McMahon said the county used the money to pay off loans for constructing Draughn and Patton high schools. At any rate, he added, the issues has no connection with the dispute over the local current expense (operations) budget or the consent decree.

As the lunch hour approached, Bridges reined in both sides. With his desk all but buried under copies of motions, affidavits, past case citations and evidence — "I can't find the stuff I laid down two minutes ago in this mess," Bridges groused later — he told the lawyers to put all the evidence and motions in proper order.

He quickly denied two county motions to dismiss the case. He granted the county's motion for the school board to quickly (by noon today) produce documents requested 11 days ago, including statements of the board's legal expenses prior to this lawsuit. And he denied the school board's request for a protective order against disclosure about discussion of legal expenses, including money to buy out the former superintendent's contract and to search for a new school superintendent.

The county commissioners say they withheld $363,800 from the schools' 2009-10 appropriation because they had a fiduciary responsibility to safeguard expenditures of the taxpayers' money. The money was in the 6900 fund for policy, administration and public relations.

The school board says the commissioners' decision deprived the schools of adequate funding for operations.