LITTLE ROCK — A judge presiding in a lawsuit on whether the Little Rock School District can legally buy out its superintendent will consider Friday's arguments and testimony over the weekend before deciding either to dismiss the case or stop any severance payment.
At issue is whether public money can be used to pay someone who is not doing the work - a matter that has implications for school districts and superintendents' contracts across the state, though Pulaski County Circuit Judge Tim Fox told attorneys that his focus is solely on the Little Rock district contract.
But Fox also said he couldn't be swayed by the argument that contractual buyout provisions and severance pay have been used before in Little Rock or elsewhere around the state.
"What does it matter if it was unconstitutional 25 times and someone finally raises their hand and says it is unconstitutional?"he asked. "If the [Arkansas] Constitution says it is unconstitutional, it is. Here is the decision that has to be made: Are the plaintiffs correct that this is unconstitutional, or are they incorrect and it is merely a matter of public policy, which is for the legislative branch or in these circumstances a matter for the Little Rock School Board, but not for the courts?"
The School Board voted 4-3 on May 24 to exercise a clausein Superintendent Roy Brooks' contract that permits the board to unilaterally terminate the employment upon 90 days' notice. The clause also mandates payment that Brooks would otherwise earn if he remained on the job for the duration of the contract, which is two more years.
School district officials have estimated that the total payment could be as much as $656,357, not counting any legal fees that the district might have to pay on Brooks' behalf. The exact amount has yet to be negotiated between Brooks and the district.
Fox questioned Friday what benefits - such as annuities or health insurance - would be covered in the buyout amount but was told that nothing was decided.
Five Little Rock School District taxpayers - led by school district parent Teresa Gray - sued the School Board and district in June to stop the buyout, arguing that a publicly funded buyout amounts to severance pay, which is not authorized by statute. It further argued that paying a public employee to not work is unconstitutional. The suit asks that the provision in Brooks' contract that permits a buyout be declared null, void, inoperative and unenforceable under state law.
Brooks was not named as a defendant in the lawsuit, a decision by the taxpayers that was questioned by Fox. But attorneys for Brooks on Thursday asked that Brooks be allowed to intervene in the lawsuit to protect his contract rights and to join the school district defendants in seeking the dismissal of the lawsuit.
Fox declined Friday to rule on the motion to intervene, saying that the taxpayer plaintiffs and school district had not had adequate time to respond to the request.
He said he would consider Friday's arguments and testimony over the weekend before deciding whether to dismiss at least part of the lawsuit or, on the other hand, issue a temporary restraining order to stop payments to Brooks.
Brooks is scheduled to leave the superintendency sometime during the week of Aug. 20, lawyers said.
"The centerpiece of this case is an important factual question and we are all kind of dancing around it," Roger Fitzgibbon Jr., one of the team of attorneys representing the Gray plaintiffs, told Fox at one point during the hearing.
"What benefit, what operational benefit, what service benefit is provided to the school district - this is a factual question - by paying a contract buyout to Dr. Brooks? That is a fact question and that by itself makes a summary judgment motion inappropriate."
The plaintiffs in the lawsuit are considered to be sympathetic to Brooks and oppose his dismissal from the state's largest school system.
Morgan "Chip" Welch, an attorney for the Little Rock School Board and district, said in defending the buyout and seeking a dismissal of the case that such contractual clauses are justified and the plaintiff's real purpose in challenging the clause is to keep Brooks as superintendent.
"This negotiated contract contains terms that were created to attract talented people from around the country to come to Little Rock," Welch said. "[All of this] is to ask this court to micromanage issues that have nothing to do with taxes or illegal exactions but rather has to do with refereeing political disputes."
The taxpayer group, represented Friday by John Gill, Don Trimble, and Eugene Sayre as well as Fitzgibbon, called Roger Norman, the state's newly appointed head of the Bureau of Legislative Audit, and Katherine Mitchell, Little Rock School Board president, to testify.
In response to questions from Sayre, Norman said other schooldistricts such as Newport had recently paid out a settlement to a superintendent who had resigned. Norman also said that as former legal counsel to the bureau he had helped prepare a request for a state attorney general's opinion sometime around 2001 on whether taxpayer funded severance packages in school districts and municipal government are constitutional. He said the response was not definitive. He acknowledged to Fox that the ultimate decision in the Little Rock case could provide guidance for the rest of the state.
In response to questions from Gill, Mitchell said her intent in exercising the unilateral buyout clause of Brooks' contract was to remove him from his job. She said she continues to believe he could have been fired for cause but the board decided that conducting a termination hearing would be costly and take a lot of time. She said the district does not expect Brooks to perform any work for the district after his 90 days' notice expires next month.
Others called to testify Friday included Clinton Brown, a long-time human resources professional, and James Williams, a lawyer and accountant, both of whom testified that severance packages for public employees are rare. Williams said governmental accounting requirements call for buyout payments to be noted separately on agency financial statements and not be made part of operational costs.
Welch argued that the plaintiff's attorneys had failed to show that they would suffer irreparable harm, which is necessary to obtain a temporary restraining order.
Gill responded that constitutional violations are cause for irreparable harm. He also urged the judge to prevent any misapplication of taxpayer funds and not put people to the trouble and expense of getting the money back once it is paid. He said that the district currently has a superintendent and an appointed interim superintendent, adding to the turmoil and expenses of the district.
Fox stated early in the proceeding that he is a graduate of the Little Rock School District, that his children attend parochial schools and that he is not related to School Board member Melanie Fox. The judge scolded the nearly dozen attorneys at court Friday for appearing to engage in some "brinkmanship." He noted as examples last-minute motions and subpoenas, as well as the failure to include Brooks as a defendant in the case because he might ultimately be paid and then asked to return public funds.
The plaintiffs have based their lawsuit in part on Article 14 of the Arkansas Constitution that restricts the use of funds derived from property taxes to be used solely for maintenance and operation of the schools. The suit also relies on Arkansas Code Annotated 6-13-620 that lists the elements that can be included in a superintendent's contract. Those include the duration of employment, specific duties and annual salary. They don't include severance pay.
Welch argued that the statute sets a "floor" for contracts and not a "ceiling."
Jess Askew III, an attorney for Brooks, has said he will argue, if Brooks is allowed to be an intervenor party, that the statute applies to annual contracts and doesn't apply to a three-year superintendent's contract. Another statute, Arkansas Code Ann. 6-17-301, authorizes three-year contracts for superintendents. It does not list required provisions of the contract, Askew said.
Besides Gray, the plaintiffs in the lawsuit are Keith Broach, Renita L. Thompson, Steven B. Thompson, Eleanor Burress and Marnita Bisbee.
Brooks, 56, is paid $198,000 a year plus benefits that include a $25,000-a-year annuity and an $11,000-a-year car allowance. He also receives vacation, sick leave, teacher retirement fund contributions and health insurance. He was promised a $30,000 service bonus if he received good evaluations over time.
Front Section, Pages 1, 10 on 07/28/2007