School board asks court to reconsider ruling|Likelihood of review is slim, says attorney

Published 7:42 pm Thursday, September 24, 2009

Staff Writer

In what its lawyers acknowledge is a long shot, the Beaufort County Board of Education will ask the N.C. Supreme Court to reconsider its Aug. 28 ruling regarding a lawsuit the board filed against the Beaufort County Board of Commissioners.
That ruling reversed a decision by the N.C. Court of Appeals regarding the 2006 lawsuit brought by the school board over county funding for county schools and remanded the case to Beaufort County Superior Court.
The state’s high court has agreed to reconsider only two cases in the past 10 years, said Rod Malone, a lawyer with the Tharrington Smith law firm in Raleigh and who will file the petition with the high court.
“It’s an extraordinary thing we are asking,” he said. “We certainly appreciate that it is an uphill battle, but we are willing to take this on.”
The school board did not act to retry the case, and it will ask the high court for a stay in scheduling a retrial until after the court reconsiders the case, Malone said in an interview after he met with the school board Wednesday afternoon.
“We are specifically not asking for a retrial at this time,” he said.
Malone said he will file the petition asking the court to reconsider the case by the Oct. 2 deadline to do so. The court is expected to announce whether it will reconsider the case within 30 days, he said.
The fees for filing the petition will be paid by the N.C. School Boards Association, a professional organization that represents all the boards of education in the state.
The association “has received interest from across the state” because of the court’s decision regarding the instructions by Superior Court Judge William C. Griffin Jr. to the jury that heard the case. Griffin retired earlier this year.
In July 2006, the school board took the county to court, arguing that the school system’s funding from the county was not adequate to properly run county schools for the 2006-2007 school year. A jury subsequently awarded the school board an additional $756,783 for the year. The county appealed the case.
The state high court’s decision was a 4-2-1 split among the high court’s seven justices.
The case was remanded because the high court determined that Griffin’s instructions to the jury were flawed because of Griffin’s definition of the word “needed” as it relates to appropriations needed to operate a public school system in Beaufort County.
In writing for the majority, Justice Mark Martin wrote, “The trial court instructed the jury that the word ‘needed’ … means ‘that which is reasonable and useful and proper or conducive to the end sought.’ Rather than conveying a restrictive definition of ‘needed,’ which is necessary to preserve the discretionary authority of county commissions under Article IX, Section 2(2), the instruction conveyed an impermissible, expansive definition of this statutory term.”
In remanding the case, Martin additionally wrote that the court “should instruct the jury that section 431(c) requires the County Commission to provide that appropriation legally necessary to support a system of free public schools. … The trial court should also instruct the jury, in arriving at its verdict, to consider the educational goals and policies of the state, the budgetary request of the local board of education, the financial resources of the county, and the fiscal policies of the board of county commissioners. … Anything beyond this measure of damages impermissibly infringes upon the discretionary authority of the County Commission under Article IX, Section 2(2) of the State Constitution and may not be awarded by a jury.”
The petition will ask for a clarification of the court’s ruling as to why Griffin’s instructions were not correct.
The school board discussed another lawsuit with its attorneys Wednesday.
Trey Allen, another lawyer with Tharrington Smith, announced a settlement between the N.C. School Board’s Trust and two teachers who were transferred from Eastern Elementary School. Without admitting any wrong-doing, the trust agreed to pay Theresa Oakey and Paula Willey a total of $25,000 in settlement of a lawsuit against school board member Mac Hodges, then-Superintendent Jeff Moss and then-Eastern Elementary School Principal Doris Brown, Allen announced.
The lawsuit was brought as a whistle-blower claim, with Oakey and Willey alleging they had been transferred against their wills after reporting various acts by the principal in regard to their School Improvement Plan, Allen said.
“It made economic sense for the trust to settle the case,” Allen said in an interview after meeting with the school board.