Board of Education gets more time before possible transfer of power

by Melissa Boughton, NC Policy Watch, September 14, 2017.

It will be at least another month before state Superintendent Mark Johnson can take over at the helm of the Department of Public Instruction, which leaves the Board of Education in charge of the state’s 1.5 million students and $10 billion budget.

A three-judge panel partially granted a request to extend a temporary stay in a lawsuit over the transfer of power from the board to Johnson. The panel ruled for Johnson in July in the case but issued a 60-day stay to allow for an appeal.

The board asked the court Thursday to extend that stay to allow for the appeal process to play all the way through the state Supreme Court. The board’s attorneys said they planned to file a motion to stay the panel’s decision within days to the state Court of Appeals but wanted the extension to prevent an emergency filing, which might constrain the appellate court.

The panel granted a 30-day extension rather than an extension that would cover the appeals process. If the appellate court or state Supreme Court does not extend the stay, it will mean Johnson takes over DPI at 5 p.m. Monday, October 16.

Johnson’s attorney Philip Isley argued at the hearing that the plaintiffs had 60 days to file that motion and failed to do so.

Andrew Erteschik, one of the Board’s attorneys responded that the 60 days was spent in negotiation with Johnson’s counsel “to prevent a situation like what we have now where this court had to come to Raleigh to deal with this.”

“We tried very hard for a very long time — outside counsel, inside counsel, back and forth between the parties, for weeks, multiple calls, lengthy calls, in person meetings, in person meetings at my office, in-person meetings in state government offices — and we could not reach a full resolution,” he said. “We did everything we were supposed to do and we’re right back where we started.”

The plaintiffs’ attorneys told the panel that without a stay, there would be an enormous change in the governance structure of the Department of Public Instruction, one that would give Johnson unilateral authority to determine school exemption status and hire and fire managerial employees “without any input, direction or say so from the Board.”

“Without question we would contend that the state board from a governance standpoint is essentially left on the sidelines and all of the critical decision-making,” said one of the board’s attorneys, Bob Orr.

Isley said he was irritated at the plaintiffs’ characterization of his client and the idea that “all hell is going to break loose” when he took over leadership of DPI.

“They make my client out to be this boogeyman whose going to come with an axe and start swinging heads and everyone’s going to be fired,” Isley said, visibly annoyed.

He said that the affidavits filed by the plaintiffs outlining what could happen once Johnson is at the helm of DPI are not based in fact, but are all hypotheticals.

“The plaintiffs have done an extraordinary job of trying to convince this court, and possibly the appellate court, that it’s going to just stop, that the world will stop turning the day that Mark Johnson becomes the de facto leader of the Department of Public Instruction,” Isley said.

He indicated that Johnson didn’t have major plans to change DPI once he takes over and asked the court to just wait and see what happens.

“I feel obligated to tell the panel that the hypothetical, theoretical, hair on fire moment that has been pronounced by the affidavits of the plaintiff just do not ring [true] in any way shape or form,” he said. “It’s difficult for me to tell the panel, you have to trust us.”

Erteschik said the plaintiffs have a very different approach to the case than the defendants, and for good reason.

“Our approach is let’s do this calmly, slowly and let’s give the appellate courts a chance to rule and make a final resolution of this issue before as Judge [James] Ammons said, we have a sea-level change,” he said. “For stability purposes and status quo purposes and the 1.5 million school children and $10 billion dollars at stake, it makes sense to move very carefully.”

He added that for a case of this size and magnitude, “a let’s just see approach” is not what’s best for North Carolina students.

The panel, which included Judges Donald Bridges, James Ammons and Martin McGee, had a number of questions for each party.

Isley asked for the panel to not issue any stay and Erteschik asked for some kind of stay, at least 30 days but preferably 60 days.

The stay that was issued prevents the new state law that transfers power from the Board to Johnson from going into effect while the plaintiffs seek review from a higher court.

Erteschik guessed it would be a matter of days or weeks for that to happen. He assured the judges that they were not seeking a delay to drag their feet on filing with the higher courts and said they could make their decision contingent on filing within the next few days.