Courts & the Law, News

Board of Education asks Court of Appeals to pause transfer of power to Superintendent

Superintendent Mark Johnson (left) and State Board of Education Chairman Bill Cobey (right)

The State Board of Education has officially asked the Court of Appeals to stop Superintendent Mark Johnson from taking the reigns of the Department of Public Instruction until the appeal process is complete.

The motion for temporary stay and writ of supersedeas was filed late Tuesday afternoon. A three-judge Superior Court panel ruled for Johnson in a lawsuit over the transfer of power but issued a 60-day stay to prevent its ruling from going into effect right away.

The Board’s attorneys used those 60 days to try to negotiate with Johnson’s attorneys but were unsuccessful, so they went back to the panel to ask for another stay. The panel gave the Board 30 more days, which ends at 5 p.m. Monday, October 16.

Now, the Board is asking the appellate court to step in and extend the stay to preserve the status quo while litigation continues.

“Here, a stay of the trial court’s decision during the appeal is warranted because it is necessary to preserve the Board’s constitutional power and duty to supervise and administer the State’s public schools — a nearly 150-year-old responsibility,” the court document states.

The Board’s argument is that its power is derived — and has been for 150 years — from the N.C. Constitution.

“In stark contrast to the broad, sweeping powers and duties that the North Carolina Constitution confers on the Board, the North Carolina Constitution has always confined the [Superintendent of Public Instruction] to a limited role,” it states.

The document contends that a constitutional amendment would be required to flip-flop the Board’s and the SPI’s constitutionally mandated roles.

Without the appellate court issuing a stay, the legislation in question will move the entire $10 billion public school system under the control of a single individual for the first time in North Carolina history, according to the court document.

“This seismic shift will generate enormous disruption for our State’s public schools,” it states. “Worse, this seismic
shift would occur overnight, without any transition period whatsoever. As part of this disruption, the SPI would be immediately empowered to take drastic actions that could not be undone.”

Board’s Motion for Temporary Stay and Petition for Writ of Supersedeas by NC Policy Watch on Scribd

Courts & the Law, News

Appellate panel in Rules Commission case: Board of Education power subject to General Assembly laws

While litigation involving a transfer of power from the State Board of Education to Superintendent Mark Johnson, a three-judge appellate panel has ruled in another case that rules made by the Board are subject to statutes enacted by the General Assembly.

The Board sued the state of North Carolina and the NC Rules Review Commission over a separation of powers argument: review of the Board by the Commission encroaches on its constitutional authority.

Judge Lucy Inman wrote in the opinion, released Tuesday, that the appeal of a lower court’s ruling in favor of the Board presents a question of first impression.

“Does the North Carolina Rules Review Commission, an agency created by the General Assembly, have the authority to review and approve rules made by the North Carolina State Board of Education, whose authority is derived from the North Carolina Constitution?” she wrote. “For the reasons explained in this opinion, we conclude the answer is yes.”

The Rules Commission was created in 1986 and the Board took legal action in November 2014.

“The Board’s complaint sought a declaratory judgment preventing the Commission from exercising any authority over the Board and, specifically, controlling the Board’s enactment of rules,” the appeal states.

In Inman’s ruling, she gives historical context about the Board, its creation and evolution. It helps explain how the court reached its conclusion.

“We hold that the review and approval authority delegated to the Commission is an appropriate delegable power and that the General Assembly has adequately directed the Commission’s review of the Board’s proposed rules and limited the role of the Commission to evaluating those proposed rules to ensure compliance with the APA,” the appeal states. “By providing adequate guidelines for rules review, the General Assembly has ensured that the Commission’s authority as it relates to the rules promulgated by the Board is not ‘arbitrary and unreasoned’ and is sufficiently defined to maintain the separation of powers required by our state constitution.”

Judge John Tyson dissented from Inman’s opinion, in which she was joined by Chief Judge Linda McGee.

“By establishing a Board of Education with the specific constitutional authority to promulgate its own rules and regulations, the framers of Article IX and the People, upon ratifying the Constitution, vested the authority to administer and supervise public education to the State Board, not the RRC,” Tyson wrote. “This intention is clearly set forth in the plain language of the Constitution in Article IX.”

That’s an argument the Board’s counsel has used to oppose the transfer of their power to Johnson. Johnson’s attorneys have said that the General Assembly has the power to transfer that power.

A three-judge Superior Court panel sided with Johnson but an appeal is pending at the state Court of Appeals. It’s expected to go to the state Supreme Court.

News

Attorney General expands opioid investigation, calls for more funding to battle crisis

N.C. Attorney General Josh Stein at a Tuesday press conference on the opioid epidemic.

Attorney General Josh Stein is joining 40 other state attorneys general in an expanded investigation of five opioid manufacturers and three opioid distributors, he announced in a Tuesday press conference.

The investigation will look into how the companies may have contributed to the national opioid epidemic through their business, advertising and marketing practices.

Approximately 1,600 North Carolinians died of drug overdoses last year, making it the number one cause of accidental death in the state, Stein said. That’s nearly four a day. According to the latest data, one in 100 newborns in the state begin life with opioid dependency.

“A crisis of this magnitude deserves our attention,” Stein said Tuesday.

That means more funding, more education and treatment, Stein said – but it also means looking carefully into the origins of the epidemic.

“As millions of Americans were becoming addicted to prescription pain killers and communities were struggling to respond to this crisis, drug companies were reaping enormous profits,” Stein said.

“Our investigation will determine whether the drug manufacturers and drug distributors unlawfully created and fueled this crisis,” Stein said. “And if they did, I will hold them accountable.”

The expansion of the investigation, which began earlier this summer, will include Purdue Pharma, Endo, Janssen, Teva/Cephalon, Allergan and distributors AmerisourceBergen, Cardinal Health and McKesson.

Stein was joined at Tuesday by a half-dozen people with expertise in and personal knowledge of the opioid epidemic and its costs. They included Nashville, NC Police Chief Thomas Bashore, N.C. Secretary of Health and Human Services Dr. Mandy Cohen and Dr. Ashwin Patkar of Duke University Medical Center. Read more

Courts & the Law, News, Tracking the Cuts: The Dismantling of Our Public Schools

State, not local government, to blame for poor school conditions, Appeals Court rules

The local government in one eastern North Carolina county can’t be held responsible for “serious problems” with chronically underachieving local schools, a state appeals court ruled Tuesday.

Responsibility for Halifax County’s lagging district falls instead on North Carolina’s state legislature and its executive branch, judges argued.

That ruling comes after five students in the county and their parents or legal guardians accused Halifax County commissioners of unequal funding for the county’s three school districts, slighting two districts largely composed of minority students.

It’s a pivotal ruling related to the state’s long-running Leandro case, which began in 1994 when plaintiffs in several low-wealth counties, including Halifax, argued students were not afforded the same chance to succeed as their peers in more affluent North Carolina counties.

In the Leandro case, the court found the state has a constitutional obligation to provide a “sound basic education” to students.

The plaintiffs in Tuesday’s ruling said decisions made by local county commissioners infringed on that right, although two out of three judges found that the local board of commissioners cannot be solely blamed for the districts’ myriad issues with facilities, supplies and performance listed in the case.

Mark Dorosin, an attorney with the UNC Center for Civil Rights who represented the Halifax County plaintiffs, called the decision “disappointing.”

“The court’s ruling in the Halifax case really tries to narrow the scope of the constitutional right to a sound basic education in a way that I don’t think the court that decided the Leandro case intended,” said Dorosin.

Issues in Halifax’s minority-dominated districts include flagging test scores, deteriorating facilities and marked difficulty in hiring quality, experienced teachers—all in contrast with a third, primarily white local school district.

The majority sided with an earlier trial court dismissal in the case, finding “serious problems in the schools in Halifax County, but because this defendant—the Halifax County Board of Commissioners—does not bear the constitutional duty to provide a sound basic education, we affirm the trial court’s order dismissing this action.”

Instead, the court found that responsibility rests with state leaders in the N.C. General Assembly and the executive branch, including Gov. Roy Cooper, the State Board of Education and the N.C. Department of Public Instruction.

However, one dissenting judge, Chief Judge Linda McGee, wrote in her opinion that local governments have a “role to play” when it comes to the financial backing of the public schools.

Because one judge dissented, the plaintiffs will have the right to appeal their case to the state Supreme Court. Dorosin said Tuesday he would be speaking to his clients in the coming days to discuss further appeal.

Look for more on this pivotal case later this week from Policy Watch.

Environment

Illegal oil and gas commission postponed, one statement of economic interest still missing

Jim Womack (File photo: Lee County government)

The state oil and gas commission, which had planned to meet, albeit illegally, in Sanford tomorrow, has been postponed for at least a month. Jim Womack, whose chairmanship is in dispute, told Policy Watch that he decided to cancel the meeting because the state ethics commission didn’t have adequate time to review the members’ statement of economic interest reports.

“We want to make sure there’s no legal challenge” to the meeting Womack said. The meeting has been postponed until late October or early November.

The ethics commission must review and approve SEIs, as they’re known, before a board or commission can pass rules, take action or even call a quorum. Five of the six annual reports, including Womack’s, had been filed late. Stanford Baird filed his report yesterday afternoon after Policy Watch reported it was missing. Charles Taylor has yet to file his, according to the ethics commission website.

However, Lee County Manager John Crumpton said that last night county commissioners voted to make sure the oil and gas meeting was legal before allowing it to be held. Crumpton said he was still investigating the legality of the meeting when Womack decided to cancel it.

As Policy Watch reported yesterday, Chief Deputy Secretary of the Environment John Nicholson sent a letter to Womack questioning both the legality of the meeting his legitimacy as chairman of the nine-member oil and gas commission. Womack had originally been appointed to the commission by Sen. Phil Berger. But after a state Supreme Court case, the legislature created a new commission with new appointees. Womack was not one of them.

Womack told Policy Watch that Nicholson is wrong, and that he was “validly appointed by Sen. Berger.”

The governor appoints four members and the House and Senate leadership each appoint two.

According to a roster of the oil and gas commission, in July 2016, House Speaker Tim Moore appointed Ray Covington — who told NC Policy Watch yesterday he is no longer serving on the commission — and Karen Glaser. Senate President Pro Tem Phil Berger appointed John Lucey in August 2017. He did not reappoint Womack.

Within days of leaving office last December, former Gov. McCrory appointed Randall Williams, Charles Taylor, Ronda Jones, Stanford Baird and Victor Gaglio to the commission. Williams resigned two weeks ago, after taking a job with the state of Missouri in March.