Four CCCC trustees to keep appointments — for now

Aug. 15, 2013 @ 07:54 PM

The four trustees of Central Carolina Community College who sued the college and the state last month won at least a temporary victory in court Thursday.

Jan Hayes, Tony Lett, Chet Mann and Norman "Chip" Post Jr., all appointees of the Lee County Board of Education, filed suit in late July after a local bill, which later became law, would have removed them from the board on Aug. 1 — before any of their terms had expired — and also prevents them from being immediately re-appointed to the board.

They asked to be allowed to remain on the board and also have the law, which was proposed by local Rep. Mike Stone, declared unconstitutional.

Judge Winston Gilchrist decided in Lee County Superior Court on Thursday, after about three hours of hearing evidence and arguments from both sides, that the plaintiffs had a good enough case for the lawsuit to go to trial. He allowed a preliminary injunction for them to stay on the board until then.

"Very pleased," local attorney Jon Silverman, who represents the four trustees, said after the decision. "... We feel like the constitution has been defended."

Questions of fairness, legality

Many of the arguments centered around legal standards and technicalities, but politics also came into play. Stone has previously claimed the law was written to correct a system of appointing trustees that isn't entirely legal. But Silverman argued that, using Stone's logic, 12 of the board members were illegally appointed. He asked why Stone's law only targeted four of those 12 — noting that those four are all registered Democratic or Unaffiliated voters, and that Stone is a Republican, as were the vast majority of other supporters of this bill on the state and local levels.

"I challenge anybody to tell you ... what reason there was to boot the four Lee County Board of Education appointees but leave (the eight appointees of the Lee, Chatham and Harnett boards of county commissioners)," Silverman said.

The appointees of the governor's office are not believed to have been done illegally.

Addressing the political angle is important, Silverman argued, because the group that accredits community colleges will remove accreditation if it believes there are undue political influences on trustees. And if the college loses its accreditation, its students lose the ability to use federal Pell Grant financial aid — grants which he said more than half of the college's students have.

But Melissa Trippe, the state's attorney, argued that devious politics aren't necessarily to blame just because only one part of a problem was addressed in the bill. The General Assembly can address and fix problems, she said, but it doesn't have to do it all at once.

And Eva DuBuisson, an attorney representing the Chatham County Board of Education — that board joined with the college and the state as a defendant, arguing that it had an interest in preserving Stone's law which gives it and the Harnett County Board of Education appointing powers — said that if every politically motivated law were to be challenged, it would bog down the courts considerably.

Affecting the minority

The arguments could have gotten even more political, but Stone was noticeably absent in the audience. Silverman tried to subpoena him to testify, but he said Stone claimed legislative immunity. Silverman did subpoena Lee County Commissioner Jim Womack, who came but was never called upon.

Womack did speak at one point — but just on tape. Toward the end of the hearing, Silverman played a recording of a Senate committee discussing and ultimately approving Stone's bill, during which Womack and County Commission Chairman Charlie Parks spoke in favor of the bill and school board member Tamara Brogan spoke against it.

Silverman noted how no one who supported the bill's stated aim, to get the board in compliance with state law, ever mentioned the other eight of the 12 appointees who might have been appointed illegally.

"Can Mr. Womack not count?" Silverman asked, noting that his board has just as many illegal appointments as the school board. "Can Mr. Parks not count?"

Trippe, however, argued that the Lee County commissioners stated their intention to address their methods during other state-level conversations.

Standing and privilege

Getting away from politics, Silverman argued that the state constitution prohibits local bills from amending or changing the state's general statutes — which he said Stone's bill did. He also said the state constitution guarantees trustees the privilege to serve out their full terms, and that by removing them prematurely, they're being deprived of those rights and that they and the community will be done "irreparable harm."

Trippe argued that none of the plaintiffs even claimed irreparable harm in their own affidavits, and that any constitutional privilege extends to the seats on the board in general — not to the individuals in those seats.

"There's no constitutional right to hold a public office," she said.

Trippe also said none of plaintiffs had standing to sue in the first place since they were allegedly appointed illegally. When Silverman was pressed on a similar point earlier by Gilchrist, he argued that these four shouldn't be treated any differently than the other eight appointees who aren't being removed from the board.

Next steps

Silverman also said Stone's law added to a growing list of questionable legislation coming out of Raleigh lately.

"We have become known as a wacky state doing wacky things," he said. "This is an opportunity to go back to our roots of enforcing fairness."

But Trippe said declaring a law unconstitutional requires the highest standard of proof.

"The court cannot substitute its views for those of the legislature," she said, later adding: "... It's civics 101. This legislation was passed, and it passes constitutional muster."

Gilchrist struck a middle ground between the two sides, not giving his opinion on any constitutional matters but also keeping the argument alive by allowing the suit to proceed to a trial where the judge would potentially do so. It's still unknown when that trial might take place.