DeKalb in federal court today but no decision from judge
Update at 7 p.m. : The federal court hearing lasted just under three hours. The judge did not rule yet. He wants to consider all the arguments. I will write up the hearing later. But it was much of the same stuff said at the state hearing.
Despite last-ditch efforts to avoid a court battle, the DeKalb school board drama will move to a federal courtroom this afternoon.
School board member Eugene Walker says his reputation is at stake and he intends to wage battle in court.
It remains unclear whether the DeKalb school board’s vote to hire former DeKalb DA Bob Wilson essentially amounts to a blank check for legal fees; I am trying to find out whether the taxpayer funding for this lawsuit has any limit or does it flow to the bitter end.
Concern over the use of taxpayer funds to finance this legal battle has led State Rep. Mike Jacobs, R-Brookhaven, to propose a law that would prevent suspended school board members from using taxpayer dollars to mount a protracted legal effort to keep their jobs.
His House Bill 468 states: “A local board of education shall not expend any public funds for attorney’s fees or expenses of litigation relating to removal proceedings pursuant to this Code section except as necessary for its defense at the hearing before the state board as provided for in subsection.”
Among those signing onto the bill was state Rep. Mary Margaret Oliver, D-Decatur, who said, “Spending taxpayer money to save your elected job to avoid SACS sanctions is just wrong.”
In polling board members on whether they are willing to resign to avoid what could be costly and protracted court battle, AJC reporter Ty Tagami reports: School board member Pam Speaks said at a state hearing last week that she would resign rather than fight for her seat. Nancy Jester and Donna Edler have expressed uncertainty when contacted by the AJC. The other suspended board members — Sarah Copelin-Wood and Jesse “Jay” Cunningham — could not be reached for comment.
Walker, the former DeKalb school board chairman, told Tagami that he expected the five other deposed board members to fight on, too. “Why would they resign?” said Walker. “If they did, it would shock me.”
In an analysis of the stakes in this fight, Tagami reports:
A drawn-out legal fight could have its own consequences. The board’s three remaining members don’t have a legal quorum to make decisions for the district’s nearly 100,000 students. Deal could eventually appoint replacements, but the process to remove the suspended board members takes two to five months. Interim superintendent Michael Thurmond has said it would be destabilizing to simultaneously have appointed and suspended but unremoved board members.
Adding to the complications is a DeKalb policy that says the local school board, by majority vote, should fill any vacancy that occurs at least 90 days before a general election. If any members resigned and the lawsuit succeeded, then the remaining members would have a hand in picking successors. That may weigh on the minds of the historically fractious board.
School board member Pam Speaks said at a state hearing last week that she would resign rather than fight for her seat. Nancy Jester and Donna Edler have expressed uncertainty when contacted by the AJC. The other suspended board members — Sarah Copelin-Wood and Jesse “Jay” Cunningham — could not be reached for comment.
Some DeKalb lawmakers, frustrated by what they see as an overreach by the executive branch, are pushing to rein in Deal’s powers. State Rep. Dar’shun Kendrick, D-Lithonia, said she was mulling legislation that would allow the governor to replace school board members only after collecting signatures from voters in their districts for a recall.
“I just want people to calm down and take a look at the other side,” said Kendrick, who warned that voters could be “usurped” by state officials. “Think about what this kind of precedent will shape politics moving forward.”
State Sen. Emanuel Jones, D-Decatur, said the powers lawmakers gave the governor were “intended to be a club that no one would ever use.” Now that he’s used them, Jones said, it’s time to rethink that authority.
“I’m hearing concerns about the process. The governor didn’t put the process in place – the Legislature did,” said Jones, D-Decatur. “And we have the responsibility to rework the bill.”
The governor’s office wouldn’t comment on whether the law needed tweaking, but it said Deal had little choice but to take the one “legal step at his disposal” and suspend DeKalb’s board members. “While others fight on behalf of the people who brought the school system to the brink, Governor Deal will fight for our children and the home values of residents throughout DeKalb,” said Deal spokesman Brian Robinson.
–From Maureen Downey, for the AJC Get Schooled blog
Tell us what you think about the site
Customer Care »
Vacation stops, manage subscriptions and more
AJC Services
Sections
Other Editions
Visitor Agreement | Privacy Statement
© 2013 The Atlanta Journal-Constitution
166 comments Add your comment
Bernie
March 2nd, 2013
1:00 am
It certainly Looks like TWISTER WEATHER in Dekalb County is Brewing. Fasten your seat Belts folks,
its going to get very UGLY, before it gets BETTER!
bigbill
March 2nd, 2013
1:26 am
According to the February 25, 2013 article in the legal newspaper The Daily Report titled, “Judge’s Emergency Order Pre-empts Deal’s Action On DeKalb Schools,” by R. Robin McDonald:
Decatur attorney Robert Wilson who represents the DeKalb School District and (Eugene) Walker (in the U.S District Court case) argues in a legal filing submitted with the motion for a temporary restraining order “that the Georgia law giving the governor authority to remove the board violates board members’ property rights to the political offices to which they were duly elected.”
The article further reports that “Wilson argued that the law ‘on its face…lacks the most basic rudiments of due process and because it does not provide notice and an opportunity to be heard before any government deprivation of a property interest.’”
If this is true then the law enacted by the Georgia General Assembly giving the governor authority to remove school board members would, in my opinion, most certainly be susceptible to a legal challenge by the board members and the school district as to whether it passes constitutional muster under the Fifth and Fourteenth Amendments to the U.S. Constitution which prohibit federal, state and local governments from depriving persons of their property (which definition of property would most certainly include the property rights of elected officials “to the political offices to which they were duly elected.” For one thing, they are paid government salaries.) without due process of law. One famous U.S. Supreme Court decision, Goldberg v. Kelly, held that state laws authorizing the termination of state welfare benefits without the welfare recipients’ right to prior notice and a hearing violated the welfare recipients rights to due process under the Fifth and Fourteenth amendments. This is settled law and applies in any situation where a government seeks to deprive a citizen of a property right.
The question of course is this: does the Georgia statute provide for prior notice and the right to a full and fair hearing for school board members whom the governor proposes to remove from office? The plaintiffs’ attorney in this case strongly argues that it does not. Before public school board members can be removed, these questions must be answered: Was there prior notice to each DeKalb County School System Board member informing them of the charges against them justifying their removal with enough specificity to allow them to respond to the charges and defend themselves at a hearing. And were the board members provided with a full and fair hearing prior to their removal to rebut each and every charge against them, a hearing held before a neutral hearing officer with no stake in the matter? If the Georgia school board removal law does not have these provisions in it, it would indeed be unconstitutional, I believe. And if the removal of the board members occurs without these due process safeguards being followed, their removal could be reversed in a court challenge.
And that is just one issue. There are many other legal issues being raised by the plaintiffs in this case and other cases in Georgia where efforts are underway to remove school board members.
I am another person who would argue as a matter of public policy that, no matter what the complaints against public school board members may be, possibly short of conviction for a felony, the only way publicly elected school board members should be removed from office is by the voters at the next election. The fully politicized governor and the fully politicized SACS should not be trusted with the authority to thwart the will of the citizens who elected the board members. That is completely anti-democratic and wrong.
bigbill
March 2nd, 2013
1:52 am
If I may add this correction to my above-posted opinion: if the statute authorizing the removal of the school board member itself fails to include the due process provisions discussed above, then the statute itself is unconstitutional and arguably any action to remove board members taken under the unconstitutional statute is null and void as constitutionally deficient even if some attempt is made to provide due process to the board members as the process unfolds. I am not a constitutional expert. Others who know more on this subject might want to add to this discussion. But you see the problems that are raised in cases like this where laws are enacted to nullify the will of the voters with the possible exceptions for the the most extreme circumstances justifying removal such as a criminal conviction for the commission of a felony crime.
RealPhD
March 2nd, 2013
3:08 am
The DeKalb NAACP’s comments on this issue is THE reason that I no longer attend meetings and will not donate a dime, even though I am a silver life member of the NAACP . . . incompetence is not racism . . . yes there are racists elements involved, but 10 years of consistent decline in a school system where more and more of the teachers and administrators are Black, should cause Black people to wonder why . . . Black teachers, Black administrators, and low Black child performance–why? . . . boards are at the strategic, policy making level–if their policies aren’t working then they should be removed, however that isn’t what happens most of the time with my people–we get fascinated with a personality, and the more flawed the more we make excuses that “whatever it is” it isn’t his or her fault–its “the system” . . .what system? the system where Black people select their own leaders . . .is that “the system” . . . “that system didn’t work in Clayton County, and a lot of graduating seniors had their high school diploma turn into butt wipe, in front of their eyes–many accepted to college lost their scholarships and others had to take the GED but still lost substantial credit” is that the system that we think needs to work? . . . My people will be crying as their home values take a nose dive if and when they re-elect the same idiots or worse to office, because as Black people we are consumed with skin color–I simply pray for more parochial schools and private schools to open as an option for employers we need to move into this county . . . the poor judgment of the majority in this county is what is making the north part of the county manipulate to re-create Milton County and leave this county, or worse, remain in the county and get approval to establish their own school districts that WILL magically be able to perform superbly . . . wonder why a change in leadership would result in such rapid improvement in results . . . those are the questions the majority needs to be asking, OR we can keep be illogical and ignorant while maintaining the worse school system in North Georgia. I guess that is the choice we demand . . . the choice to destroy the each subsequent generation.
Private Citizen
March 2nd, 2013
4:14 am
Two observations:
1. Prior to and unrelated to the current topic, I have noted Georgia school boards and their deeply rooted minions, who knows how it works? in this “right to work” state… is it 100 people in each community who exercise this type of power? A school teacher will not ever know. Anyway, this folk get to play Big Time with not only the local school tax money paid by property owners, but with additional money collected by state income tax. Point is, it is a mixed system in incoming money for them to command, and yet especially the troublesome school boards act like their decisions are a local issue. But they are not just using local monies. It is a weird mixed system. And then when the state tries to exert management authority, the school board acts like “I don’t know you. What are you doing here?” The whole thing is ill-designed.
2. If I wager a dollar, I predict Dr. Walker’s end-game in the long run is a settlement where he is personally paid as a victim who has been “damaged” “reputation damaged” or somesuch. I just bet you that is his end-game. Right now there is basically two people involved in holding up the reformation of the DeKalb School board – Dr. Walker and his attorney. As long as the private attorney is getting billable hours, he’s in a “win” situation. He’s not on salary, he’s paid per hour. Does anyone know how much Mr. Wilson is charging per hour for his service?
and a note: At the DOE hearing, when Mr. Wilson did his summary at the end of the hearing, it sounded like the type plea-for-understanding formula that might go with any felony or criminal trial. The emotion, the “I implore you,” and all of that. It did not ring true to me.
Private Citizen
March 2nd, 2013
4:18 am
Guessing that Walker’s end-game is a personal settlement, receiving a check for lost “property.”
Private Citizen
March 2nd, 2013
4:35 am
Opinion: We are in the process of witnessing a crime of “conversion,” where a public office is converted into personal property. Wild stuff to see this so out in the open. Dr; Walker is a very creative fellow, that too bad the object of creativity tends to be in one direction, for him and his interests, not outward, to service and community.
Opinion: What we are witnessing is a very fanciful approach to embezzlement. Just wait and see for the claim for loss, request (demand) for payment.
Private Citizen
March 2nd, 2013
4:54 am
(video game voice) Money extraction sequence in progress.http://yourlisten.com/channel/content/16957308/Money_extraction_sequence
Private Citizen
March 2nd, 2013
4:54 am
http://yourlisten.com/channel/content/16957308/Money_extraction_sequence
redweather
March 2nd, 2013
5:25 am
O.C.G.A. 20-2-73 (2010)
20-2-73. Removal of board members under certain circumstances
(a) Notwithstanding Code Section 20-2-54.1 or any other provisions of law to the contrary, if a local school system or school is placed on the level of accreditation immediately preceding loss of accreditation for school board governance related reasons by one or more accrediting agencies included in subparagraph (6.1)(A) of Code Section 20-3-519, the State Board of Education shall conduct a hearing in not less than ten days nor more than 30 days and recommend to the Governor whether to suspend all eligible members of the local board of education with pay. If the State Board of Education makes such recommendation, the Governor may, in his or her discretion, suspend all eligible members of the local board of education with pay and, in consultation with the State Board of Education, appoint temporary replacement members who shall be otherwise qualified to serve as members of such board.
(b) Any local board of education member suspended under this Code section may petition the Governor for reinstatement no earlier than 30 days following suspension and no later than 60 days following suspension. In the event that a suspended member does not petition for reinstatement within the allotted time period, his or her suspension shall be converted into permanent removal, and the temporary replacement member shall become a permanent member and serve out the remainder of the term of the removed member.
(c) Upon petition for reinstatement by a suspended local board of education member, the Governor or his or her designated agent shall conduct a hearing for the purpose of receiving evidence relative to whether the local board of education member’s continued service on the local board of education is more likely than not to improve the ability of the local school system or school to retain its accreditation. The appealing member shall be given at least 30 days’ notice prior to such hearing. Such hearing shall be held not later than 90 days after the petition is filed and in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act,” except that the individual conducting the hearing shall have the power to call witnesses and request documents on his or her own initiative. For purposes of said chapter and any hearing conducted pursuant to this Code section, the Governor shall be considered the “agency” and the Attorney General or his or her designee shall represent the interests of the Governor in the hearing. If it is determined that it is more likely than not that the local board of education member’s continued service on the local board of education improves the ability of the local school system or school to retain its accreditation, the member shall be immediately reinstated; otherwise, the member shall be permanently removed, and the temporary replacement member shall become a permanent member and serve out the remainder of the term of the removed member or until the next general election which is at least six months after the member was permanently removed, whichever is sooner. Judicial review of any such decision shall be in accordance with Chapter 13 of Title 50.
(d) This Code section shall apply only to a local school system or school which is placed on the level of accreditation immediately preceding loss of accreditation on or after July 1, 2010.
(e) This Code section shall apply only to local board of education members elected or appointed on or after July 1, 2010.
Dr. John Trotter
March 2nd, 2013
10:15 am
@ bigbill: You laid out the issues very well. I believe that there is a high threshold for taking away the will of the people. I don’t believe that the kangaroo-type group “hearing” constitutes a substantive due process hearing for each school board member whom the Governor is attempting to remove. Each member should have a right to confront the witnesses making allegations against him or her and to cross examine these witnesses. The Georgia Supreme Court allows for a thorough and sifting cross examination. Property interests are definitely at stake.
SACS’s conclusions and report about this school board have caused the chain of events to occur. Yet, SACS, in an incredible display of hubris, does not provide for any documents or testimony from which SACS allegedly drew its report, many conclusions of which are easily proven to be false. The same thing occurred in Clayton County. For example, I believe that Elgart & Gang wrote that the Kaplan Program (which the Clayton School Board had abandoned) had been working very well in the elementary school, but the program was not even used in the elementary school (or vice versa). Many of the conclusions that SACS reports are simply skewed and biased or downright and explicitly wrong. SACS shrouds its “investigations” in secret. SACS is about as transparent as a 100 year old Chero Cola bottle. Trying to “see through [this] glass darkly” is frustrating to all who have a stake in the matter. SACS needs to come out of the catacombs and into the sunshine. After all, it appears to “blackmail” the school systems into to giving it upwards to $25,000,000 or more each year. Something about its cloak of darkness is just unseemly and wrong. I have been railing against SACS for over five years now. The people need to be freed up from the threatening and menacing edicts of SACS which appears to be guided by a capricious and arbitrary leader.
I think that it is very dangerous for a democratic society to start allowing the government to circumvent the will of the people, despite how bad the people’s choices may seem to be or how emotionally charged the opponents’ arguments are about allegedly “protecting the children.” It is especially dangerous to allow an unelected and unaccountable private company to set the chains in motion for this removal.
Pardon My Blog
March 2nd, 2013
11:45 am
Well, Obama circumvents the will of the people all the time by using “Executive Power”.
CompetenceNotDiversity
March 2nd, 2013
11:55 am
@RealPhD – Amen, brother. Well said.
Or, you can saddle up with the “shoot the messenger” crowd. Life is about choices, and all choices have consequences.
John Friedricks
March 2nd, 2013
12:46 pm
Easy solution. Just pour a bucket of water on Walker. His last words will be, “I’m melting…”
kaitmsom
March 3rd, 2013
11:39 am
@RealPhd…you said a mouthful. You articulated just what I was I thinking.
Fred in DeKalb
March 4th, 2013
6:35 am
Well said, RealPhd! I’m in a similar position and respect your comments. There are many that believe as you stated however they don’t frequent blogs but quietly work in the community to make changes. One should not interpret the lack of people on camera saying what you did or posting to blogs as a lack of concern. Regretfully the media does not actively seek out comments like yours.