LITTLE ROCK — A still acutely divided Little Rock School Board on Thursday chose North Little Rock attorney Morgan "Chip" Welch to defend it against a lawsuit filed by district residents seeking to prevent a buyout of Superintendent Roy Brooks' contract using public funds.
The School Board previously hired Welch, of the firm Welch and Kitchens, to represent it during hearings on whether to suspend and fire Brooks. Welch subsequently represented the board in a lawsuit Brooks filed to stop the suspension hearing.
Ultimately, the board voted 4-3 on May 24 to buy out the two remaining years of Brooks' contract instead of continuing with the termination proceedings.
Last week, Little Rock School District residents filed a class-action suit that argues that the publicly funded buyout amounts to severance pay, which is not authorized by statute. It further contends that paying a public employee to not work violates the state constitution and amounts to an illegal exaction of taxpayer funds.
The district cost of the buyout could be more than $600,000, not counting the possible payment of Brooks' legal fees.
The suit asks that the clause in Brooks' contract that permits a buyout be declared null, void, inoperative and unenforceable under state law.
The board voted 4-2 to keep Welch for the case. Dianne Curry made the motion for Welch, and Mike Daugherty seconded the motion.
"Mr. Welch has handled the case with the superintendent," Curry said before she made the motion. "And I feel that based on the fact that since this is connected to that, my preference would be to continue with the services of Mr. Welch."
Joining Curry and Daugherty were Charles Armstrong and School Board President Katherine Mitchell - the same majority that initially voted to retain Welch and remove Brooks.
Voting against hiring Welch were Melanie Fox and Baker Kurrus, who have opposed ousting Brooks. Larry Berkley, who has sided with Fox and Kurrus during the debate over Brooks' fate, was absent from the meeting.
Fox and Kurrus suggested that the board instead use the Friday, Eldredge and Clark law firm, which typically represents the district.
Fox asked representatives from both law firms to describe their experience with illegal exaction lawsuits and their hourly fees.
Welch told the board that the fee will be $250 per hour for his work on the case, $175 per hour for work by his partner Lloyd "Tre" Kitchens and $150 per hour for the work of all other associates at his firm.
His firm has so far chargedthe board about $30,000, Welch said after the meeting.
Welch said his firm has experience with class-action litigation but not specifically in illegal exaction cases. "I have also a lot of experience in dismissed lawsuits," he said.
Chris Heller of the Friday law firm said because his firm provides most of the district's legal services, the 26,600-student district - the state's largest - gets a discount. He said the hourly fee is $175 for all partners and $140 for all associates.
He said his firm has defended "more than 20 illegal exaction cases." Recently, he said his firm successfully defended the Bentonville School District in an illegal exaction case.
Heller said he agreed with Welch that the case "isn't very complicated."
"The facts probably aren't in dispute," he said. "It's a case that probably ought to be decided on a motion to dismiss or a motion for summary judgment."
He said the Arkansas Legislative Audit Division reviews the finances of districts across the state and hasn't taken exception to contract buyouts.
Daugherty said he didn't want to appear like he had no faith in the Friday law firm but choosing it in this case would be problematic.
"The Friday firm is working on a number of things with this administration," he told Heller, "and we're facing a lawsuit that, in effect, is seeking to keep this administration in place, and I think that would severely compromiseyou all."
Kurrus said inviting Welch to attend Thursday's meeting was "out of our routine and ... different from our policy."
"The idea is simply to hire himbecause he was involved in ousting Dr. Brooks," he said. "I really don't think this lawsuit is about Dr. Brooks. It's about whether a school district can pay severance pay under these circumstances."
After the meeting, Kurrus would not cite the specific district policy violated, but he gave a reporter a copy of the district's policy for choosing legal services. The policy says that firms expressing an interest in serving as school attorneys should fill out a survey questionnaire and be interviewed by the board.
State law bans school districts from seeking competitive bids for professional services such as legal,financial advisory and professional consultant services.
Under Arkansas Code 19-11-802, school systems "may encourage firms engaged in the lawful practice of these professions to submit annual statements of qualifications and performance data." The law also says school districts "may request" a company's qualification for a particular project.
Welch assured the board that he is not seeking to become the district's main attorney. However, he said, if the case goes to trial, Heller might better serve the district on the witness stand as someone who will attest that superintendents' contracts ofteninclude buyout clauses.
Thursday's special meeting was sparsely attended, but among those in the audience was Teresa Gray, the parent of a child at Terry Elementary School and one of the plaintiffs in the class-action lawsuit.
After the meeting, Gray said she remained undeterred in her lawsuit, even if it costs district funds.
"Six hundred thousand dollars is a lot of money to spend," she said. "It should be spent for the education of our children. Our schools have a lot of needs, and our students have a lot of needs that that money could be spent for."
Arkansas, Pages 11, 14 on 06/22/2007