Bundy, Schwartz argue case for jurors

Oct. 08, 2013 @ 09:57 PM

Attorneys Ligon Bundy and Richard Schwartz delivered their closing statements Tuesday morning, wrapping up the nine-week trial pitting the Union County Board of Comissioners against the Union County Board of Education over school funding. 

Judge Erwin Spainhour clarified for the jurors that all of the evidence had been presented and that closing arguments are not evidence. The attorneys are allowed to argue, but they cannot become abusive, express their personal beliefs or brings up outside evidence. 

Bundy, the attorney representing the county commissioners, addressed the jury first. 

“I don’t consider (the county commissioners) to be my clients, I consider the people of Union County to be my clients,” Bundy told the jury. 

He added, “I’ll try to be short, although brevity has been lacking in this case.”

Bundy said he was surprised that Roofing Consultant Nelson Hall was not the first witness the school board called. He said he thought the roofs would be the first evidence they would hear right out of the box as it was the strongest. He clarified that he was not conceding that everything identified was a need. 

Instead, he noted, the plaintiff called County Manager Cindy Coto and Chairman Jerry Simpson for “vigorous” questioning and that it took two weeks to get to the subject of capital needs. 

Bundy argued that the plaintiff wanted

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to beat the county into submission before the other evidence was presented. He said the capital evidence did not paint a pretty picture, showing that Union County Public Schools had the capital problems for years and had money in their fund balance, but spent millions on computers. 

Bundy said that you do not spend millions on something not required by the state while buildings fall into disrepair. 

Schwartz, the attorney for the board of education, countered this in his closing statement. He told the jury he called Coto and Simpson first to show that the money to fund these needs was there. 

“We have the needs. They have the money. They’re not going to give it to us,” Schwartz repeated through his closing. 

Bundy argued in his closing that the school system had not presented its needs and costs adequately. They have the duty to come forward, Bundy said. 

Bundy said the school board should come to the county commissioners with an appropriate request. He contended that they did not come with an appropriate request, only line items. He noted that Hall could have spoken with the commissioners and teachers. 

Bundy said the trial had “not been a pleasant experience” for the jurors, school board or commissioners. He said that if any good comes of it, perhaps it will be that the board of education will do a better job of identifying their needs and have more transparency. He said the school board is not supposed to come to the county and ask for millions of dollars when they have a fund balance. 

Schwartz refuted this contention. He asked the jury if anyone could think of a time the school board came forward with their needs, then pointed out the comprehensive facilities study.

“We did that four years ago,” Schwartz said. 

He added that since then there had been the capital improvement plan and other studies. Schwartz said Coto testified that she did not know about those things because they happened before she took her current position. 

“They can’t have it both ways,” Schwartz said. 

He referred to Bundy’s closing when he said they should present their needs and asked how many ways that must be done. Schwartz noted a piece of evidence from 2011 that had to do with capital plans. It was signed by Former Chairman Dean Arp and Former Superintendent Ed Davis. It was also signed by Coto and Simpson, saying that they had received and reviewed the document, but their signature was not an endorsement. 

He also referred the jury to a piece of evidence from 2010 when Coto gave her recommendations for school funding. It was about $66 million from 2010-2014. 

“If we hadn’t presented those needs, why is the county manager recommending funding them?” Schwartz asked. 

“They can’t say with a straight face we haven’t presented our needs,” he said. 

Bundy discussed the one-to-one laptop initiative, a program that provided each student with a laptop or Chromebook, the initiative had come up numerous times during the trial. He argued that the initiative has an impact on what they need. 

Bundy said that they spent at least $11.7 million on the program and there was testimony that a good bit of this money could have been used on capital expenses.

He told the jury they should deduct $3.3 million in operating costs dealing with the one-to-one initiative because “they don’t need to be spending that money.”

Bundy also contended that the school system did not have as many leaky roofs as they claimed, pointing to the testimony of Jennifer Mao, a teacher at Walter Bickett Education Center, where she said she had not seen the roof leaking in the cafeteria this year. 

Bundy told the jury that if they reached a verdict and gave the board of education money, they did not have to use that money on the capital projects identified during the trial. He said there was no oversight and they can spend that money on any lawful purpose. 

Bundy pointed to other aspects of the trial and said they were not the issues at hand. Those issues included whether or not the county unreasonably changed the schedule for the requests, whether or not County Finance Manager Jeff Yates made an error in estimating state revenues or whether the funding formula was fair. Bundy asked what those things had to do with the needs of the schools. 

He also reminded the jury the trial was about the current fiscal year, not capital outlay needs beyond this year or what had happened in the past. 

Bundy argued the school should not be sitting on assets or sitting on real estate while allowing the schools to “go down.” 

Bundy moved on to talk about money and what verdict the jury should reach during deliberation. The current expense was adjusted for about $85 million. Bundy asked if they had convinced the jury they needed that. He pointed out that the estimated state appropriation was about $1.5 million less due to changes in state policy. 

He subtracted $3.3 million from the total, dealing with the one-to-one initiative. He also asked if they felt the county should cover money lost from the state and federal government. 

If so, Bundy arrived at a total of about $82.4 million. 

He said the bottom line is how much money, if any, should the county appropriate for local and current expenses and capital outlay beyond what they have done. He reminded the jury that they appropriated $82.3 million already. 

Bundy pointed to other sources revenue as shown by Accountant Diane Goode in her testimony. He said they should get no additional dollars for capital expenses. 

“I say that without apology,” Bundy said. 

He said the county has appropriately funded the school system and the school board has failed to prove otherwise. 

“We all want what’s best for our children and we want what’s best for the citizens and taxpayers,” Bundy said. He added that they may not agree on how to achieve this. 

After a recess, Schwartz took the stage for his closing. 

He noted that he did not agree with much of what Bundy said and took the time to thank the jurors. 

“You’ve been awesome,” he said. He thanked them for being so attentive and diligent with note-taking. 

Schwartz said the school board was his client and thus he represented the children of Union County. Schwartz said since the trial began, about 500 children were born in Union County, part of the class of 2030. He told the jury that what they did in the jury room would impact those kids. 

Schwartz reminded them of the standards involved in a “sound and basic education,” which the free public education system is required to provide. He said that included high test scores and a Level 3 in proficiency. Previous testimony said that about 30 percent of students are not meeting that standard. 

He said there are some kids who will succeed in any conditions, but other kids need help and more chances. He reminded the jury of Monroe Principal Brad Breedlove’s testimony about a student who was taking an online class to stay on track for graduation. When he noticed she had not logged on, he had an assistant principal go to her home. The student is now on track to graduate. 

Schwartz returned to Bundy’s allegation that the school board had not been good stewards of the taxpayer’s money. 

He returned to something from Bundy’s opening statement that was not included in his closing statement, the contention that UCPS had 560 administrators. Schwartz told the jury they did not hear that in his closing statement because it is not true. He reminded them of the testimony of N.C. Department of Public Instruction Director of School Business Alexis Schauss from late August. She testified that their central administration was one of the leanest in the state and laughed at the 560 number. 

Schwartz said they made an assumption and set out to prove the assumption, which, he noted, the county does “time and time again.” He also pointed out the press release sent out with incorrect information, which the county sent out in their newsletter after they found out it was incorrect. He said it was on their website until Bundy told them to remove it during the trial. 

Schwartz talked about bringing a pet rabbit into the courtroom and releasing it. He said if he did so, the jury would watch the rabbit, curious about where it would go and be distracted by it. He said he named his rabbit “Chromebook.” 

“Where is the waste?” Schwartz asked the jury. “That we bought Chromebooks, I guess.” 

He noted that they bought and paid for the technology last year after saving money in their general fund. The principals agreed to the purchase unanimously and put 20 percent of their supplies budget toward it while department heads contributed 5 percent. 

Schwartz said the technology depot and technology buildings were also rabbits. 

He also pointed to the E-Rate reimbursements as a rabbit and clarified that money was not flowing into the school through that program and that it was paid directly to the provider and they paid a discounted rate. He noted that Goode, a forensic accountant, assumed it came in as sales and use tax, pointing out another assumption. 

To refute Bundy’s allegation of only giving the county a “flimsy” document in their request, Schwartz pointed the jury to a piece of evidence, a portion of Coto’s proposed budget with “page after page” of information. 

Schwartz pointed out a “big rabbit,” that it was up to the school board how to spend the money and they did not make wise choices. He reminded the jury that they had about $233,000 left over to meet about $5.3 million in needs. He said any choice is a bad choice, whether they choose to fix the bathrooms in Walter Bickett Education Center or the roof of Monroe High School. 

Schwartz returned to Goode’s testimony, saying that the jury, after sitting through Shauss’ testimony, probably knew more about North Carolina education finance than she did. He said she came here and put together graphs with “defective analysis.” He said it is up to them how much credibility they give her, but he would recommend “next to none.” 

“You can’t trust Mr. Yates’ numbers and you can’t trust Debbie Goode’s analysis,” Schwartz said, adding that they just do not know enough about education finance. 

He said that instead of working with the school system, the county demonizes them, through releasing statements with bad information and not correcting it or the website that appeared in testimony that was paid for by Commissioner Jonathan Thomas and written by School Board Member Kevin Stewart. The website was very critical of UCPS. 

Schwartz also talked about their needs. He said they had numerous ways to determine the capital outlay, either through the testimony or looking at plans. He suggested: $XX million. 

“I’ve got faith in you,” Schwartz said. “I know you’re going to do what’s right.” 

He said it was extremely important for them to reach a verdict they could be proud of. 

“You have awesome power right now,” he said. 

He said their job as adults is to pack the bags of students with what they will need to succeed in the future. He reminded them of Superintendent Mary Ellis’ testimony about being a voice for the children.  

“It’s time to pack their bags,” Schwartz said. 

The jury entered deliberation Tuesday afternoon and did not return before press time.