Motion to Compel the Entry of an Order
Compelling the Parties to Mandatory,
Binding, Confidential Arbitration
Binding, Confidential Arbitration
in Full, Final and Complete Resolution
of the above-referenced action
of the above-referenced action
on behalf of Jane Doe, et. al.,
the citizens and children of DeKalb County
the citizens and children of DeKalb County
Comes Now, the undersigned citizens and taxpayers of DeKalb County, Georgia and File, this, their Motion to Intervene for the Limited Purpose of filing this Motion to Compel the Entry of an Order Compelling the Parties to Mandatory, Binding, Confidential Arbitration on behalf of the Jane Doe, et.al., the citizens and children of Dekalb County and respectfully show the Court as follows:
1.
The undersigned understand that this action began as an action filed by Heery-Mitchell, in essence to collect a debt on contract for $500,000.00 (approximately) owed by the DeKalb County School System (DCSS) for outstanding construction projects on SPLOST I and SPLOST II at the time that DCSS determined that it was no longer interested in having Heery-Mitchell continue as the contractor for various construction projects. Heery-Mitchell’s claim includes a claim for approximately $1 million more in attorney’s fees.
2.
DCSS has spent approximately $19 million in taxpayer funds, out of the general pool of funds that would otherwise be available to the children of the DCSS to fund education in the DCSS schools. The undersigned believe that these funds could have otherwise been spent on things such as teachers, books, copy paper, toilet paper and roof repairs. The undersigned further understand that a component of this $19 million includes over $3 million on a study to determine that the counterclaim against Heery-Mitchell in this suit should be filed for $100+ million in damages sustained by DCSS arising from issues relating to work orders and other issues stemming from the work done by Heery Mitchell during the course of the parties’ tenured relationship.
3.
Heery Mitchell moved to add various individual members of the DCSS Board of Education (hereinafter “BOE”). The BOE has funded the legal fees of these individual board members, just during 2011, to the tune of over $700,000. These funds have been paid out of the general operating budget, which could have otherwise been used to pay for teachers’ salaries, books, photocopy paper, toilet paper and roof repairs, etc. The undersigned understand that additional funds have already been requested by these individual board members may have already been approved. The undersigned fail to understand why the individual board members do not have insurance, specifically an umbrella or officers and director’s insurance policy to cover such legal fees.
4.
The undersigned further understand that the pending criminal RICO indictment of the former superintendent, former COO, and two others in various positions in DCSS, make for the perfect “cat and mouse” game for this civil litigation based on what is perceived to be overlapping evidence and the different burdens of proof and personal interests at stake in the various cases. It would seem that the criminal trial would have to come first. Further, it seems that there would be appeals available to whoever wins this civil action. Such appeals could be taken to at least one and to perhaps as many as two different levels. It is not clear, however, to the undersigned, as to how the fees will be paid for said appeals for DCSS. If paid further out of pocket, it is more money that could otherwise be spent on teachers, books, copy paper, toilet paper and roof repairs.
5.
If DCSS is to win the action and is to obtain a $100 million judgment against Heery Mitchell and win all these appeals, the undersigned fail to understand how this will be quickly translated into funds for the benefit of the children (e.g. dollars going to pay for the teachers, books, copy paper, toilet paper and roof repairs).
6.
The undersigned have noted that the Court’s efforts to get the parties to mediation were not successful, partially, perhaps, because of all of the fees that need to be recaptured by counsel for DCSS before DCSS recovers a dime. Accordingly, the undersigned believes that it is in the best interests of the children, who are suffering in classrooms stuffed to maximum capacity, with teachers who have been suffering with furlough days, DCSS’ failure to contribute to DCSS’ equivalent to social security retirement plan, to DCSS’ failure to give much of anything to the teachers in raises, to kids suffering in moldy buildings with leaky roofs (which may actually be the result of poorly done projects under SPLOST I and SPLOST II), to teachers running out of copy paper mid-year and parents needing to contribute copy paper, toner and toilet paper, we the citizens and parents of DeKalb County, urge the Court to stop the bloodletting in attorney’s fees that has gone unchecked at the expense of the school children and mandate confidential, binding, out-of-state, arbitration in this action.
7.
The undersigned propose the following:
a) Each side chooses one arbitrator for a 3 arbitrator panel and the 2 selected arbitrators chose the third.
b) The arbitration occur on “neutral” territory (an “Iowa” if you will)
c) The arbitration be completely confidential and nothing shall be allowed to escape the confines of the arbitration except for the final order, which shall be reported back to this Court for final entry under seal for final, non-appealable, binding resolution of this matter.
d) The arbitration shall last for however long the parties and the panel needs for both sides to thoroughly flush through all issues – this could be 3 days or a month.
e) The parties equally share the expense of the arbitration but for DCSS this comes out of the $19 million already paid unless DCSS recovers more than that from the panel (e.g. the citizens have paid enough and unless the “victory” is big enough to sustain more than fees already paid plus additional costs and then “something” – it’s been paid).
f) The panel shall put in terms that are collectible so that there is final resolution that finally and conclusively resolve this in a meaningful and conclusive manner.
g) Nothing that comes out during the arbitration shall be allowed to be used in any other proceeding.
h) Arbitration shall occur as soon as possible so that this can be concluded. Alternatively, we petition the court to set dates for the trials to begin. And then begin.
8.
Thank you for allowing the citizens to address the Court.
WHEREFORE, the Citizens and Taxpayers of the DeKalb County, Georgia on behalf of the Children of DeKalb County Schools, Jane Doe, etc., respectfully request that the Court grant it the relief requested herein, primarily that the parties be ordered to binding, mandatory, confidential arbitration in complete and final satisfaction of this litigation for the ultimate benefit of the school children and for such other and further relief as the Court deems just and proper.
======
THE PETITION
Settle the lawsuit with Heery Mitchell
The school system has spent over $15 million on King & Spalding attorneys and could end up paying an additional $15-20 million or more when the case is resolved. This outlay of cash is paid from the General Operating Budget of our school system and is taking away from our children. Stop spending money on a lawsuit where the system's main witnesses are indicted on criminal charges of racketeering! Settle with Heery-Mitchell via arbitration or mediation. End this nonsense so that we can turn our attention to our schools and our children!
SIGN THE PETITION by clicking HERE.
38 comments:
This looks like a start to putting our past behind us. We need to get this settled expeditiously.
We also need to get the trials of Pat Pope and Crawford Lewis scheduled, tried, and decided. Again, this would allow us to get beyond our past.
Finally, Dr. Atkinson needs to address the matter of a bloated administration bureaucracy. Nepotism needs to be exposed to some sunshine.
Let's stop waddling around in our past, put it behind us, and fix our sights on the future.
Absolutely! And if they can't mediate or arbitrate, then lets get a court date!
If my memory is correct, aren't we being counter sued by Heery Mitchell? What will happen to that counter suit if we stop our civil lawsuit?
No - actually DCSS' suit IS the countersuit. HM filed suit for the half million owed - plus attorneys fees of a million. DCSS countersued for $100 million per Pat Pope and Dr Lewis' 'emergency' response (after spending something like $3.6 million for a study conducted by Neilsen-Wurster/Marsh.
More money down the rabbit hole
Thanks Cere for the clarification. This has been going on for so long that the details got murky.
As an employee of the county I completely agree with this petition. The wasteful spending in the county is astounding. No step increase in years... teachers buying their own supplies, students using books from10-15 years ago... its ridiculous!
Out with the old...in with the new!!
Mediation is the best option.
Too much mess and the clew pope team is already out.
What poor juror could we trick
to listen to a mess for 1 year to just conclude both parties are
liars and idiots that truly deserved each other but not at our
children's expense.
Mediate and close it down.
The attorneys don't want mediation. Are you kidding? They're telling the board that they need to keep pushing forward and the board is foolish enough to believe them. That's why we have lost millions upon millions of dollars in this lawsuit.
King and Spalding should be ashamed of themselves. I go to church with many employees, partners and lawyers for King and Spalding. What they are doing with our kids money for education is bordering on criminal. Mediate, extricate and eleviate DCSS from this mess NOW!
Maybe Friends of Dekalb Schools/Fernbanker Amy Power can help with the petition, as an attorney and someone who knows how to get a political action committee up and running in no time. Marhshall can help too.
To read our reposted article (with permission) on the case from the Fulton Daily Report (law rag) click here:
K&S will remain on schools case: More on the story
A DeKalb County Judge ruled Wednesday that King & Spalding can remain the counsel for the county school system in a multimillion-dollar case, despite his view that the firm's lawyers negotiated an unfair fee agreement, stonewalled discovery and potentially witnessed discussion of criminal activity.
Bowen acknowledged that the district's fee contract with K&S would obviously be part of any settlement discussion, but he defended the agreement by saying paying the firm on a contingency basis avoided up-front costs from the schools' already-strained operating budgets.
We are hearing that the additional fees racked up are already at least another $15 million -- to be paid from the award if there is one (or according to the contract, from the school system directly if the award is not enough).
I don't understand this blog's desire to take up Heery-Mitchell's position. Its clear they have a philosophy of trying to outspend their opponents. They clearly didn't follow procedure and cost the school district money. The reason this is going on for 4 years is primarily Heery-Mitchell and they have no interest in a settlement. Like Walmart, they simply do not settle. They fight everything regardless of merit.
If there is value in this lawsuit, we shouldn't just give it up. If K&S has mis-advised the school board, they have a fee discussion when the case is over and re-negotiate.
To 10:07-
This is school system that has money to educate children. I understand that you think on principle it should continue. And you don't want HM to "win". But sometimes you have to cut your losses and move forward. The school board needs to get their focus (and funds) back on the students.
@10:07 a.m.:
Funny, just last evening I was reviewing the literary term "logical fallacy" with my son as part of an assignment. Think I just ran into one here. Go to the Perdue Univ. OWL reference site and read all about it.
I don't see anything in the post above which states or infers "taking up Heery Mitchell's position". Rather, I see the taking up of one and only one position -- what's right for children and taxpayers. Even those who are not legal beagles know that even if litigation was a good idea at the start, several years and millions of dollars later (out of public money) it may not continue to be a good idea.
The racketeering charges against Lewis and Pope/Reid made the school system's case became weaker. This mitigating circumstance was large enough that the BOE should have moced to settle the case. The school board is being stubborn IMO.
They don't want a case that they spent millions on to be used in the next election (same strategy in the last election). The BOE needs to put the interest of the students above their political aspirations. They don't want to admit they messed up by backing Lewis and Pope and cost the students of DeKalb millions in instructional dollars and missed educational opportunities.
The HM case has become all about the egos of the BOE and not about the children they were elected to serve.
I have no opinion on Heery. I will say that if I sued someone for $5,000 and they responded by countersuing me for 100,000 I could certainly put the gloves on and fight it. If that person continues to fight back and ends up spending $50,000 then that would be their problem, not mine.
I am against the petition. I strongly suspect that Pope and CLew brought the suit as a cover up, aided and abetted by members of the BOE at that time.
But assuming that I am wrong, why give up the possibility of getting $130 million, or at least a part of it? There should be no further expenses since K & S are now on a contingency basis.
Assuming that I am right, the suit should bring out the incompetence and maybe mal/misfeasance of Pope, Clew and/or BOE members. A loss will be a monument to to the incompetence of DCSS and might serve to steer a better course for the future.
Interesting take on the situation. FWIW, it's $100 million - no guarantee - and we've already spent somewhere around $15-19 million (out of pocket - gone forever) on King & Spalding, etc, and to date have racked up another $15 million owed (or possibly more). Without even a date for a trial...
The contract is deceiving. Yes, it says "contingency" however, if we don't 'win' or don't get enough, we still owe all the costs we run up from now until after a trial. We could lose, and end up spending $60-75 million in total... for nothing.
It's really not 'contingency'... it's deferred payment. Like a credit. Which is why the judge said it's unfair to DCSS. There is no motivation for K&S to settle.
Read these blog posts for more info:
And the Winner Is...
Why - the lawyers, of course!
So, how is the civil case between DCSS and Heery Mitchell coming along?
Some quotes:
--King & Spalding is representing the school system in the civil case and claim that the criminal charges have nothing to do with their civil suit. They also say that Heery Mitchell is using the criminal lawsuit to deflect attention from their own poor job of managing $1 billion of construction.
--Heery Mitchell’s attorney, Mark Grantham of DLA Piper stated that the criminal charges show that Heery Mitchell’s termination may have actually been due to the school administrator’s scheme to engage in criminal conduct.
--The Heery International v DeKalb County School District case has 1,053 docket entries that include depositions sought or taken of Lewis, Reid, Pope and Moody. The sealed deposition of Reid, is 7 inches thick.
--Included in the indictment is an attempt by Lewis to stall the criminal probe because he feared the criminal probe investigation might damage the school system's defense in the Heery/Mitchell suit.
--The HM contract was terminated in February 2007.
--Some of the projects Heery/Mitchell were accused of mismanaging are now part of the criminal case against Lewis, Reid, Pope and Moody. They include the McNair Cluster Elementary School, the Mountain Industrial Center and the Miller Grove projects.
--The indictment and pleadings by Heery/Mitchell show that Reid's hiring coincided with an overhaul of vendors involved in the school system's construction program.
--In 2006, Lewis asked the school board to vote to replace an auditor that had given Heery/Mitchell a glowing report the previous year, telling the board the move was "an emergency," according to the plaintiffs.
--MGT of America in a May 2005 audit reported that "an overall on-time and within budget completion in the face of a nearly 20 percent funding shortfall is evidence of the professionalism and experience of the Heery/Mitchell Joint Venture."..."The [school system] is to be commended for hiring a competent agency representative," MGT concluded.
--Lewis wanted Rubino & McGeehin of Bethesda, Md., to become the new auditor, and its 2006 report was highly critical of Heery/Mitchell, although it did not accuse the companies of fraud.
The civil case Heery International v. DeKalb County School District, is No. 07CV2532 and is before DeKalb Superior Court Judge Clarence F. Seeliger.
FWIW - The petition states that in lieu of settling, let's get the court case going - which insists the judge set a date for a trial. Either way -I think it's high time the taxpayers start publicly expressing their outrage at the feet-dragging, wasteful spending going on that is robbing children of money taxpayers in good faith and trust paid for their educations.
It's literally MILLIONS of dollars homeowners paid on their property taxes and taxpayers of Georgia paid to the state with the intention of educating children - not paying lawyers for civil lawsuits relative to school construction costs.
Too much coffee this morning... K&S is not criminal for representing DCSS. excuse my reaction. However, it seems like everything is contingent on the outcome of the Clew/Pope trial. Plus, it could take some more time now that the Palace is being cleansed. What will be uncovered as Dr. Atkinson shakes out the door mats and brings in new ideas and people. One thing for sure it's time to unhitch the DCSS past as soon as possible.
Well then, what's the holdup with starting the criminal trial? The judge ruled that Lewis can keep his attorney. The DA's office has been ready to go for a long time. So, ... go!
The criminal trial is not proceeding because the state through the DeKalb County District Attorney's office has petitioned the Georgia Supreme Court for review of the Court of Appeals's decision allowing Lewis to retain Alston & Bird as his counsel. The petition for review is pending, and the Supreme Court can take months and months to decide it. Should they grant the petition and decide to review the Court of Appeals decision, expect an additional delay of more than a year. The Supreme Court case number is S12C0419, and information about the case can be found on the Supreme Courts website (www.gasupreme.us)
That is the most depressing news on the subject yet. That puts some major brakes on any progress whatsoever. What a Catch 22! Can't do the civil trial until the criminal trial is over... but that apparently won't be for years... how convenient. More Purgatory for DeKalb taxpayers. A terrible, terrible mess.
There's no logical fallacy in reading between the lines that many posters here want the lawsuit ended immediately. Some are accepting the Heery-Mitchell lawyer's position that Dekalb is delaying this and shouldn't be able to do discovery. Heery-Mitchell has, to my knowledge, ever shown any interest in mediation.
The school board needs to choose the best financial decision for DCSS. The tone of this article is "Just finish it." Dekalb taxpayers have zero influence on Heery-Mitchell. I think this petition is seriously detrimental to the taxpayers of the county as it tries to put pressure on the board to drop the lawsuit, assuming (which noone on this board has the detail knowledge the attorneys have) that there is little basis for large claims.
Maybe it is best for DCSS to settle soon, but this petition is just wrong.
Seeliger said he thought of ordering mediation for the school system and the construction companies with whom it has been locked in litigation for four years. But he decided there is no way the two sides can resolve the case without a trial, which will take place after the criminal matters have been tried.
"I've had lots of cases, but this has probably infuriated me more than any other," said Seeliger.
It's a stalemate. Pity the taxpayers.
@January 6, 2012 7:18 PM -- What you are forgetting is -- this is not DCSS' money - it is TAXPAYER money - money people paid with their sweat and time with the intention of it going to educate children. Instead, we are already at least $30 million into a lawsuit that will obviously go on for years and cost another $30 million or more. You really think this is ok? It's taxpayer money - and if taxpayers decide they don't want it spent on this they should have this right. A petition is a statement. We are sickened by the money going down the tubes on this lawsuit. We aren't going to just stay bent over.
I don't see the petition (requesting arbitration) as "Heery wins" or "DCSS wins" or "pack up marbles and go home" -- rather I see it as a "win/win" -- a way to get both sides to a point where a rational resolution of a mega-legal issue can be resolved in a way that can allow both sides to "save face" and move on. If DCSS ultimately wins the legal battle, there will be fees and appeal -- appeals cost money -- the judgment DCSS gets has to be collectible. DCSS might get a $100 million judgment but how much will it cost the taxpayers to get there and how long will it take? Will Heery Mitchell really then be able to pay it? Where's the construction industry really at these days? Will it force Heery into bankruptcy at that point? If DCSS loses and Heery ultimately wins (remember Heery actually filed the case in the first place), will DCSS have to pay Heerey's fees? Where's the ultimate "win?" If arbitration is mandated and some neutral panel comes up with a binding and rational solution to the mess -- we can then move forward to the real business of DCSS, which is supposed to be educating kids (although that's been lost and left out of the picture over the past half dozen years). And I haven't even mentioned the creditbility of our chief witnesses in this anaylsis.
Petition is a "win-win." Sometimes when you are "right" and you push forth legally to "win", you lose big time due to lawyers' fees, court appearances, appeals, etc. It was an excellent idea when we started, but too much time has past and too much of our taxpayer money. We do need to move forward.
I disagree that it was ever a good idea. I think it was Lewis' idea so that it would deflect attention from the fact that he and Pat Pope were doing some illegal deals while no one was looking. The attorneys sold it. The board fell for it.
I agree..we should end this asap and this is where Atkinson should put a priority on. This will assure some prediction of funds for funding needed instructional programs. WE MUST ADDRESS INCREASED STUDENT ACHIEVEMENT, ASAP with our new leadership. I want to see improvement and not tthreats and punishment like Atlanat did. I want to see program inprovement, instructional support for local schools and RESULTS starting this school year.
On the contrary, Dr Atkinson should pay no attention whatsoever to this lawsuit. She should focus solely on education and getting our school system functioning well. She should take all of her requests that work toward that goal to the board for approval.
Sadly, it was a former superintendent, Dr. Lewis, who along with an army of attorneys convinced a mostly former board to file this enormous lawsuit, but the current superintendent has absolutely no power to do anything about it. This is completely the board's responsibility and they and their attorneys are convinced they will win $100 million.
@ 8:34 PM Arbitration is not supposed to come up with a "rational solution". That is done in mediation. Arbitration is supposed to be win or lose, just like a lawsuit but without many of the formalities and usually no right to appeal.
8:45 -- I understand that but in this case arbitration couuld be set up to hold the "trial" behind closed doors with judge seeliger to review the proceeding -- if it's done "right" then it's done. If not, then the case could go forward, this way, the arb panel could actually look at everything and force a "fair" resolution behind close doors and remove the politics that is really holding everything back (compared to typical arbitration which is geared against one side or the other in a securities case or a car case).
Where does this leave the case with news of the passing of E.R. Mitchell this week?
Adding to that - this article came to our attention -
Fulton County Schools
March 9, 2006
CONTRACTOR REIMBURSES $1 MILLION TO SYSTEM
The School Board and Superintendent have taken a series of decisive and progressive actions, including outsourcing the construction program, and working with contractors and asking them to review their own books. As a result, several companies voluntarily refunded and credited the school system millions of dollars. Substantial savings in the construction costs have been realized and, according to an October 2005 report from the system’s construction management firm, approximately $8 million has been saved by outsourcing and moving to a hard bid rather than Guaranteed Maximum Price (GMP) contracting practice.
...
The Board also announces an agreement, in principal, with one contractor to return an additional $1 million from one of the other projects being audited. E. R. Mitchell has already returned over $700,000 to the school system. In recent negotiations the Fulton County School System has been able, through its attorneys, to secure an additional $1 million settlement from E. R. Mitchell, bringing the total to over $1.7 million in direct cash reimbursements.
“We are pleased with the additional funds from E. R. Mitchell,” Dean continued. “Our efforts have already saved the school system millions. The Board has been diligently working for some time to bring more accountability into the construction process and we are now realizing the benefits.”
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