Court case: Would the Wake school board majority rather the public just go away? (And, if so, so what?) | Citizen
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Friday, May 14, 2010

Court case: Would the Wake school board majority rather the public just go away? (And, if so, so what?)

Posted by on Fri, May 14, 2010 at 12:33 PM

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Update No. 2: Just heard from a lawyer in the case: Pittman determined that some of the school board's actions were unreasonable, but he ruled that there was insufficient evidence to indicate that the board majority would continue violating the law. So he declined to issue the injunction and he dismissed the complaint.

Specifically, Pittman thought that excluding the public from the Committee of the Whole meeting on March 23 was unreasonable under the Open Meetings Law as was the original ticketing scheme, instituted March 23 but changed since then, which forced people to show up in the morning for a limited supply of tickets to the regular 3 p.m. public session — and once they had a ticket in hand, stay in the building until the meeting started or lose the ticket. But again, he ruled that there was not enough evidence before him that the board majority intended to continue violating the Open Meetings Law.

I'm reading Pittman's order: He's determined that, overall, "the board makes reasonable efforts to conduct its business in the open and in view of the public." He decided it's reasonable, when big crowds come, to provide an overflow room where a video feed is shown of the meeting. Part of the plaintiff's case today was that the video feed comes and goes and, even when it works, is a poor substitute for being in the room — you can't always see who's talking, and you can't see the reaction of others to what's being said. The public, Swain Wood argued, has a right to "look the board in the eye" as it conducts public business.

Pittman's decision is here. Basically, he decided that as long as a public body meets in a place where some people can see them, and the media can see them, that's all that the Open Meetings Law requires. The plaintiffs wanted him to say that people have a right to attend a public meeting, and if — in this case — the school board knows that more people want to be there than can fit in the usual meeting room, they should be required to find a bigger room. Appeals?

Update while we wait for Pittman's decision: The N&O has helpfully posted an affadavit in the case from Christine Kushner, who lays out an argument in fine-grained detail that the school board majority intends to implement its ideas with as little time spent on public process as possible. That's my point, too, below the fold.)

***

Interesting argument in Superior Court Judge Bill Pittman's courtroom this morning. From the plaintiffs, a group of Wake parents and students, comes the complaint that the new school board majority is seeking to inconvenience public attendance at its meetings as a tactic to "curtail" the opposition to its policies. The plaintiff's lead counsel, Swain Wood, argued that the majority's view of the public was captured by School Board Chairman Ron Margiotta's infamous remark, "Here come the animals out of the cages." The majority's refusal to find a bigger meeting room, one big enough to hold the crowds that want to attend, constitutes a violation of the Open Meetings Law, which gives every citizen the right to attend meetings of any public body, Wood maintained.

From the board majority's lawyers, the response was: The meetings are open to whoever can get in; we're under no obligation to meet in a room big enough to let everyone in who wants to come.

So who's right? If the school board meets in the functional equivalent of a "broom closet" (Wood's term), as it does when it convenes for Committee of the Whole sessions, and holds its regular meetings in a room with 153 seats as a way of discouraging hundreds more people who might show up if it met in an auditorium, does that violate the Open Meetings Law?


That's the question before Pittman today.

The plaintiffs want Pittman to invalidate the March 23 meeting, which people could attend only if they came to the school board offices hours before and obtained a ticket. A lot of folks ended up in the hallway or outside the building. The plaintiffs also want the judge to issue an injunction barring — at least temporarily, until the case is finally decided — the board from continuing to meet in rooms too small for public attendance and observation.

Pittman heard arguments for two hours, and promised a decision on the request for an injunction by the end of the day.

I'll write in a bit more detail about the arguments shortly, below the fold.

(And so I did, below the fold —- )

***

So let's set the stage, because if one thing needs to be said at the outset, it's that this is at least as much a political battle as it is a legal one — although in the vein of the Open Meetings Law, the two things certainly intersect.

Remember, the "old" school board was under attack for years by its critics for reassigning students from one school to another over their parents' objections — this was deemed to be "failing to listen to the public" by the offended parents who were quoted in literally hundreds of N&O articles for the last decade.

The "old" board, it's also worth recalling, aided and abetted its demise by conducting copious public hearings on each year's reassignments, giving voice to the critics while feeding the N&O's appetite for the negative.

So now the "new" school board majority takes over, voted in by the critics, and as it seeks to overturn the old board's policies, it's just not that interested in public hearings. Go figure! It isn't even that interested in announcing ahead of time what's going to be on the agenda of its regularly scheduled public meetings.

And if hundreds of people want to attend those regularly scheduled public meetings, well, tough: The room only holds 153, so any more than that and they don't get in.

Why not move the meetings? the new majority's critics ask.

The majority's answer: We don't want to.

That's simple enough.

***

And on the most controversial subject of all, the school assignment process, the new majority has yet to conduct a public hearing or even a meeting of its so-called Student Assignment Committee. The only session held to date on the subject was the one that began at 4 p.m. on a Friday afternoon in April, which consisted of John Tedesco — chairman of the committee that never meets — holding forth for an hour-plus on the subject of what it might do if it ever did meet.

Meanwhile, however, the new majority reassigns students a few at a time, drip drip drip, which has the effect of submarining the old assignment process without the headache of coming up with a different one — a headache that would presumably require a public process and a bunch of controversial public hearings and battle-zone stories in the N&O.

It's against that backdrop that some critics of the new board went to court last week with a case based on the Open Meetings Law. Representing the critics: Raleigh attorneys Swain Wood and Damian Blue, son of state Sen. Dan Blue, and Katy Parker of the ACLU-NC. Backing them up were other counsel from the UNC Center for Civil Rights, the NC NAACP and the Southern Coalition for Social Justice.

Aside from their case on the legal merits, their political case is coming through loud and clear: The new board majority "is not listening to the public."

***

On the other side, meanwhile, two lawyers represented the school board and the school board majority, since they are no longer exactly the same thing. And they were a legal odd couple indeed: Ann Majestic is the school board's regular attorney and has been for years; Kieran Shanahan, who was plugged in alongside of Majestic by the new majority, is a Republican stalwart currently serving as treasurer finance chairman of the state Republican party.

(Majestic, as you may have read, could be on her way out as board attorney following a recent "audit" for the board majority by another of its favorite Republican lawyers, Thomas Farr, about whom I've written in the past.)

***

Call the court to order. The Hon. Bill Pittman, Superior Court judge, is hearing the case.

For the plaintiffs, Swain Wood argues that the issues swirling around the new school board are a subject of enormous, and very unusual public interest. "Once in a decade" stuff, he says. And the board majority knows it — knows that vast numbers of people would come to its meetings if they were convenient. People have a right to attend under the Open Meetings Law, Wood says. But more than that, the law requires that the board itself make a good-faith effort to see that people can exercise that right. It's not enough for the board to say, well, the room can't hold the crowds. Given the high level of public interest and the board majority's awareness of it, the board has a "special responsibility" under the law to figure out a way for everyone who wants to attend to be able to do so.

Instead, Wood tells Pittman, Board Chairman Ron Margiotta has dragged his heels for nearly six months. Rather than find a bigger room, Wood says, Margiotta's solution has been to thwart the crowds by instituting a ticketing procedure under which people must show up hours ahead of time to get a meeting pass or else they may not get in. Not surprisingly, Wood contends, the once-overflow crowds have dwindled since the ticketing plan took effect. And when, at the end of April, Great Schools in Wake coalition leader Yevonne Brannon wrote politely to Margiotta asking him to find a bigger meeting space, Margiotta gave her a cool kissoff, saying he could move the meetings to the RBC Center and she'd still complain.

When Shanahan gets up, he is shaking his head in incredulity. There's no "special duty" to accommodate the public under the Open Meetings Law, he says. Nor any guarantee that people can get in. Why, that would be like saying that, if overflow crowds came to the courthouse for a murder trial, that the judge should move the trial to an auditorium. "There is an availability to the public" to attend school board meetings, Shanahan counters. "Therefore, the Meetings Law has been met."

For her part, Majestic argues that, far from trying to squelch public participation, the new majority has welcomed it by keeping public comments periods open at every meeting so everyone who wants to be heard gets a chance.

At the March 23 meeting, when Margiotta first instituted the ticketing plan and the crowds (and tempers) boiled over, even there, Majestic says, the board heard comments from 55 citizens over a 2 1/2-hour period. It could've cut them off after the official 30-minute public comment time ended, she points out. But it didn't. "This board believes in hearing from the community," Majestic asserts.

***

In rebuttal, Wood calls Majestic's point about public comments "a red herring." Sure, everybody who comes despite the inconvenience and stays long enough to be heard gets two minutes at the microphone. (But it's 2:00 flat; you're gonged after that.)

But fewer and fewer people are coming and staying, and that's the point, Wood says.

And just to make sure that he's understood, he notes that the next school board meeting — Tuesday, May 18 — will come one day after the 56th anniversary of the 1954 Supreme Court decision in Brown v. Board of Education declaring school segregation unconstitutional.

Critics of the new majority believe they intend to resegregate the Wake schools, either intentionally or by reckless neglect. Led by the State NAACP President Rev. William Barber, they are planning a mass meeting in Raleigh the night before (at Martin Street Baptist Church) and could turn out in force for the school board meeting the next day.

To meet the spirit of the Open Meetings Law, Wood argues, the school board majority should be compelled to have a contingency plan so that, when it knows a big crowd is coming, or would come except for the inconvenience of the ticketing system, it's able to move its meetings to bigger locations.

That's what Wood and his clients want Pittman to order. Their suit asks him to overturn the March 23 meeting and everything done in it, but that's pretty unlikely. But it also asks him to issue an injunction against the ticketing system and order that the school board majority be more user-friendly even to its critics.

You know, like the "old" board was.

l

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