Parents argue for redistricting injunction

Jul. 18, 2014 @ 03:28 PM

Citizens for Adequate Public Schools (CAPS) and the Union County Board of Education met again in the courtroom Wednesday for a preliminary injunction hearing. 

Special Superior Court Judge Lucy Inman presided. She expects to make a decision early next week. 

George Sistrunk and Keith Merritt of Hamilton, Stephens, Steele and Martin represented CAPS, a parent-advocacy group suing over the controversial redistricting plan passed in March.

The lawsuit said that the school board violated open meeting and public record laws in their March vote. Plaintiffs allege that the vote was discussed in a private meeting and say the scripts Council members John Crowder, Rick Pigg and Michael Guzman read from that night are proof. The lawsuit also said that the school system was slow in responding to the open record requests made by the public.  

Richard Schwartz and Brian Shaw of Schwartz & Shaw represented the school board. 

While discussing the resolution passed in July, affirming the school board’s redistricting vote and including the changes in lines to include the Millbridge development and nine other students, Sistrunk said the logical extension of their action is that they can violate laws as many times as possible, then pass something when they are caught. 

“(It) flies in the face of North Carolina open meeting law,” he said. He said they allege that the script was written and agreed to prior to the meeting. 

Inman asked if his position is that the very existence of the scripts indicated a violation of the open meeting law, Sistrunk said “absolutely” and noted that multiple board members read from a script. 

Sistrunk said it was “part of a pattern” that showed that the board did not care about open meeting laws. 

“We believe that the process was designed to keep the public out,” he said. 

Inman asked if his position was that changes to the assignment maps could not be delegated, but must be made in an open meeting. 

Sistrunk said yes and that the action was “part of a pattern of gamesmanship.” 

We caught them and they “scrambled” to fix it, he said. 

Inman had affidavits from the school board members. In Chairman Richard Yercheck’s affidavit, he said he conferred with Crowder prior to the meeting. Crowder said that he wanted to call the vote. Inman asked if Yercheck having individual discussions violated the open meeting law. 

Sistrunk replied that based on the context of the discussions, it could violate the spirit of the open meetings law. He also questioned the timing indicated in Yercheck’s affidavit because he did not see a printer on stage. 

He said it was “part of a pattern” as was the fact that the vote on redistricting did not appear on the agenda published prior to the meeting. 

Sistrunk told the judge that if the board revisits the issue and follows the process, parents would be upset, but they would not have a legal complaint. 

Inman was also not sure if the court had the authority to enjoin the board. 

Speaking for the defense, Schwartz said it was a “disguised case” about nothing other than overturning the current reassignment plan. 

Schwartz read an exerpt from the Feb. 18, 2014 meeting minutes where Superintendent Mary Ellis stated she needed direction from the board by April 2014 in order to have the time to implement all needed changes. The minutes state Crowder said he hoped the decision would be made in March.

Contrary to the plaintiff’s argument, Schwartz said redistricting was on the March 4 meeting agenda, though it was marked for information only. That meeting, he said, was widely publicized and simulcast on the Internet for people not able to attend.

Since January, UCPS received 79 public information requests. So far, 70 of the requests have been fully filled, Schwartz said. They represent 143,415 pages that UCPS employees had to print out and review for personnel information and other data not covered by public records law.

All of the plaintiff's requests were responded to, Schwartz said. 

Six of the plaintiffs made 17 different information requests. Some mentioned in the lawsuit were submitted to UCPS one to four business days before the March 4 vote. Schwartz said it was unreasonable to expect school staff to provide hundreds of thousands of pages of requested information in such a short amount of time.

“Nobody’s been denied access,” Schwartz said. “Everyone who’s inquired has been told the request has been received and that we’re working on it. That’s not the same as denying requests.”

Open meetings law applies to simultaneous meetings of an elected body in secret, not consecutive meetings between one or two board members and other individuals on the board, he said. Before the March 4 meeting, Crowder indicated he wanted to vote on redistricting and by email, other board members agreed. Some suggested drafting a motion before the meeting to get the exact wording down. Schwartz said there is no question that the motion was drafted before the vote that more than one board member read from. But Schwartz denied there was a secret meeting by a board quorum.

“There’s nothing hiding under the bed in the dark. It’s been very open,” Schwartz said. “But the plaintiffs don’t want to believe it happened the way it did.”

The board held several public meetings to gather input, though the law did not require it, he said.

Schwartz also said the plaintiff’s argument that a violation of the state’s open records law should prevent the school board from exercising an authority granted by the N.C. General Assembly. The logical solution to a violation of that law would be to end all future violation of open records law. The plaintiff’s suit sets up the complaint of a violation, but its remedy does not address how to correct such violations, Schwartz said.

Even if the plaintiff’s allegations were true and Inman ruled in their favor, the court cannot nullify the board’s authority to make decisions about redistricting.

“With all due respect, nothing would stop the school board, if the court ruled the March 4 vote null and void, from calling a special meeting 48-hours from now and having a vote to reaffirm redistricting,” Schwartz said.

Sistrunk countered that, because UCPS submitted the redistricting plan to public comment, it cannot retroactively claim public comment is irrelevant. He said the school board should be held to its own policies, which disallows changing meeting agendas from the published form and other guidelines that were overlooked on March 4.

Inman concentrated on allegations the plaintiff made in the complaint and lack of support in affidavits or provision of public record. She disagreed that the March 4 vote was similar to case law about a school board vote where the public was required to get tickets.

Allegations of a secret meeting were supported by all school board members attending a facilities committee meeting eariler that day, Sistrunk said.

“Where is the evidence that there was a facilities meeting earlier that day?” Inman asked.

“I believe that’s a matter of public record,” Sistrunk said.

“And do you have that public record here today?” Inman said.

“No, we do not,” Sistrunk said.

When Sistrunk linked an allegation to a statement by a plaintiff, Inman asked why no affidavit stating that was included in the complaint. Sistrunk said Marce Savage and Sherry Hodges said they felt left out of the discussion leading up to the vote. Inman noted that both board members stated in their affidavits they did not believe the other board members held secret meetings or broke the law.

Before recessing the hearing, Inman asked Sistrunk to name what harms would be done to the plaintiffs if redistricting was allowed to move forward. He said the people would have been robbed of open and honest government. Inman disagreed, citing the multiple public hearings.

“There’s an immediate impact on property values,” Sistrunk said.

“So we are talking about property values? Before you said that wasn’t a reason,” Inman said.

“Yes,” Sistrunk said.

He also cited disruption for families who might need to move. Safety is a concern for families who take advantage of the grandfathering amendment and use their own transportation to stay at former schools. And students assigned to new schools would be harmed by leaving behind friends and teachers.

Inman said she did not see those as “harms that stem from violations of the open meetings law.”