Here come the lawyers - oh the lawyers -- more lawyers

So what's the tally? Anyone know??? Of course not! We have no way of knowing exactly how many millions of our tax dollars have gone to lawyers. We are paying lawyers all over metro Atlanta – lawyers for the criminal lawsuit against Dr. Lewis and Pat (Pope) Reid and others. Lawyers in the civil case (countersuit) by DCSS against Heery/Mitchell. Lawyers to defend the system in reductions in teacher pay, employment dismissals or bullying or nearly $400,000 spent on a judge to investigate bullying only to find that none existed!  On and on.

In February, the AJC informed us in an article entitled, DeKalb schools hire law firm for ex-superintendent, that the school board capped Dr. Lewis' defense fund at $100,000. Then, Judge Cynthia Becker decided that Dr. Lewis had to find a new lawyer, as his current lawyer is a member of a firm representing DCSS' new construction manager, Barbara Colman's firm.  Colman is scheduled to testify for the school system. So, has the board now thrown more money Lewis' way? Do taxpayers realize that they are paying for the prosecution and the defense in these cases?  In that article, we also discover the following:

DeKalb County schools have capped the amount of money the district will spend representing former Superintendent Crawford Lewis in an ongoing civil lawsuit at $100,000.

The school board has hired Atlanta law firm Goodman McGuffey Lindsey & Johnson to represent Lewis in the school system’s ongoing lawsuit construction manager Heery/Mitchell, but capped the expense at $100,000, district spokesman Jeff Dickerson said Friday.

This is the third law firm the board has hired to help with the suit. The district has already spent $15.5 million in legal fees in the case. The district is seeking $100 million from Heery, alleging fraud and mismanagement.

Earlier this month, the suit was moved from federal to DeKalb State Court and 17 new defendants were added to the suit, including the individual board members and Lewis. Lewis was terminated April and has since been indicted on charges he ran a criminal enterprise at the school system.

Well guess what! Again, according to the AJC, the school board just voted in February of this year to spend $700,000 defending seven former board members in the construction lawsuit. One of the seven, Sarah Copelin Wood is actually still a sitting board member. (Did Sarah vote to spend money on her own legal defense?)

So, the law firm, Elarbee, Thompson, Sapp & Wilson, LLP in Atlanta, was given carte blanche to spend $700,000! Yowsa! And these are "bit players" in the big scheme of the Heery/Mitchell case.

Allow me to continue. But get a tissue, you will cry.

The board has a separate contract with attorney Halsey Knapp, Jr. for former board member Simone Manning-Moon.

There are other, miscellaneous law firms that are hired to handle worker's comp and other employee issues - cases that Josie Alexander is already under contract to handle.

Let's add the aforementioned $15.5 million spent at King & Spalding on the Heery/Mitchell case. The Daily Reporter tells us that King & Spalding might be pushing the limits on this case. The DA "stopped just short of accusing the firm of making a frivolous bid to halt discovery, implying via carefully placed quotation marks that King & Spalding and the school district engaged in disingenuous legal reasoning".

DeKalb DA Robert D. James Jr. wrote that King & Spalding and its client showed "bad faith and collusion" and claimed attorney-client privilege "where it does not exist" in discovery-related matters.

Did I mention that we have paid over $15 million for King & Spalding's legal representation so far? And there is no court date yet on the docket. Judge Seelinger ordered them to remediation out of concern for taxpayers dollars, saying, “This has grown far, far too expensive for the parties, and one party is the school board. Taxpayers are paying for this. Mediation is the best way to get this resolved."  However, that remediation quickly disintegrated.

This is taxpayer money - earmarked by the state and county for educating our children. How much more will taxpayers be forced to spend on law suits instead? What would happen if taxpayers revolted and refused to pay the school tax portion of the property tax bill? What would happen if the state stepped in and demanded an accounting of exactly how many state tax dollars are going into the pockets of lawyers instead of the backpacks of students? How much more of this financial vortex of legal fees must taxpayers endure? When on earth will this nonsense end? Are there any adults in the entire state of Georgia willing to step up and demand answers?

Ramona Tyson promised to the parents attending her first public meeting, the Emory Lavista Parent Council meeting back in April of 2010 that she would conduct an audit. In fact, the ELPC minutes quote her as saying, "The priority will be to protect the services closest to students while conducting a forensic audit to examine programs that are not working." (Click here to review the other unfulfilled promises made at that meeting.)

A small, but rumbling group of parents is fed up. They have begun a campaign to declare the school board incompetent. They are currently taking an approval rating poll and may invoke a public vote of No Confidence. Thank goodness for the will of everyday parents and taxpayers. Maybe they can make a difference where no highly-paid, high-powered official has even raised an eyebrow. Fran Millar tried. He posed placing former state school board president, Brad Bryant as superintendent in order to clean house and mend fences.  After giving Bryant a cursory interview, he was completely ignored. Two additional, viable candidates were sabotaged in the process. Nancy Jester, Pam Speaks, Don McChesney and Paul Womack tried to alert the public regarding the behind-the-scenes manipulation in an email, but were publicly criticized by the board chair. How odd is that? The messengers who informed us of wrong-doing are the ones to be criticized by their leader. However, that same leader put forth no effort to root out the saboteurs.

The comment below was posted by Carolyn Henry Rader on Maureen Downey's 'Get Schooled' article "Can someone shake DeKalb school board out of its fog so it can see mounting problems in schools?"

"A few parents and citizens of DeKalb representing Central and South DeKalb met for the first time last night to start the process of forming a county-wide “Parents Coalition”. There is enough talent, passion, professional and business acumen throughout DeKalb County that needs to be tapped into and utilized. It is time to mobilize parents, business and community leaders to move our school system from dismal to successful. There is no more waiting around for Board members to do this but we welcome those who are passionate about helping the whole school system to move forward in a positive direction. A strategic planning process for DeKalb may be the first item on the agenda and one that includes input from the community, and ultimately produces a bold vision and mission that we all can work towards and uphold. And one more thought – change the name of the School Board to a ‘Board of Trustees’ – elected community members who are entrusted to uphold and be accountable for ensuring the jointly (community/school administration) led strategic plan is followed and implemented. Our next meeting is August 24, The Marlay, in Decatur, at 6:15 pm. Please see http://www.washoe.k12.nv.us/community/strategic-plan
for an inspiring example of a school district that decided enough was enough and they embarked on a powerful strategic planning process with strong community partnership move their schools from failure to success."

Our board does not realize just how fed up the public is with their lack of fiduciary responsibility to the people of DeKalb. What level of cognitive dissonance do our board members have in order to continue this never-ending cycle of outrageous (but hidden) legal fees and bad governance?  How disengaged are our state leaders in that they can continue to turn blind eyes to irresponsible actions of the DeKalb School Board?

At the very least, a NO vote on SPLOST IV this November would send a strong signal that taxpayers won't "take it" anymore.  Do not give them access to another half-billion dollars to squander.  Replace this board and place new school administrators and then we'll revisit SPLOST next year.

Message to DeKalb School Board:  No. More. Money.

DA: 'Bad faith' in schools case

Battle brews over schools' desire to vet requests seeking school system documents from DA's office
By Janet L. Conley, Associate Editor, 'Daily Report'

The DeKalb County district attorney and King & Spalding are clashing bitterly as multimillion-dollar civil litigation over the DeKalb County School District, the firm's client, becomes enmeshed with the DA's prosecution of former school officials.

In a scathing brief filed on Friday and replete with phrases that have been italicized, bolded or both, DeKalb DA Robert D. James Jr. wrote that King & Spalding and its client showed "bad faith and collusion" and claimed attorney-client privilege "where it does not exist" in discovery-related matters.

The DA's office stopped just short of accusing the firm of making a frivolous bid to halt discovery, implying via carefully placed quotation marks that King & Spalding and the school district engaged in disingenuous legal reasoning: "As with the 'confusion' over adequate remedies at law … it would seem that this Court continues to experience delays due to such 'legal missteps.'"

The legal issue underlying this war of words is whether King & Spalding and its client should be able to vet a third-party discovery request seeking school system documents not from the school system itself, but from the DA's office. Prosecutors had obtained the papers from the school system via voluntary document production, subpoena and seizure following a search warrant.

A key player in this drama is the school system's adversary in the civil case, Heery International Inc., which contends the school system in bad faith terminated its contract to manage school construction projects.

Heery has, in the context of its civil litigation, asked the DA's office to produce documents the DA obtained from the school system in preparation for a criminal corruption case alleging school officials including former Superintendent Crawford Lewis jettisoned Heery and its joint venture partner, E.R. Mitchell & Co., so they could illegally steer contracts to friends. That request came on the heels of Heery's so-far unsuccessful bid to get those same documents via an Open Records Act request.

"This Court should prohibit Heery from obtaining through the back door what it cannot [get] through the front door," wrote King & Spalding partner Robert C. Khayat Jr. That plea came in a motion to prevent the DA from producing the documents until the school district's counsel can review them for attorney-client privilege or work product issues.

But the DA's office responded that the school district has stonewalled discovery all along: "The paucity of documents produced and the improper redacting of documents that were provided forced the District Attorney to obtain search warrants in order to properly investigate its case."

Khayat, in an interview, said his firm was not involved in the production of those documents and always has encouraged the school district to "cooperate as much as possible."

The school district first attempted to protect the documents with a motion for a protective order to the judge in the civil matter, DeKalb Superior Court Judge Clarence F. Seeliger. He heard arguments on the issue in March and, at a suggestion from the DA's office—which Deputy Chief Assistant DA John S. Melvin later retracted—told the schools' counsel he thought they needed to petition for mandamus.

On April 1, the school district filed a petition for mandamus, only to be met by the DA's vehement motion to dismiss. The mandamus, the DA argued, seeks "what is tantamount to preemptive injunctive relief" and is legally insupportable to a degree that the school system must have known.

Khayat responded: "The relief that we're seeking is not in any way frivolous. We're seeking the protection of the attorney-client privilege, which is one of the most sacrosanct privileges in law."
James, did not return a call for comment.

David Rubinger, a spokesman for DLA Piper, the law firm for Heery International, declined to comment because the matter is pending, saying that the DA's filings speak for themselves.

One of those filings, a brief in support of the motion to dismiss the mandamus petition, calls the nature of the petition "haphazard and ill-advised." It links the school district's pushback on discovery requests to "a belief that at least some [school district] officials and employees who are being prosecuted in the Criminal Case cannot be called as witnesses in the Civil Case due to the potential that they may raise their Fifth Amendment privilege."

But the Fifth Amendment doesn't present an absolute bar to calling criminal defendants in civil cases, the DA's office argued. It added in a footnote that the Fifth Amendment shields against compelled self-incrimination, not legitimate inquiry, which means it is the trial court's responsibility "to determine whether the refusal to respond to discovery is within the privilege claimed."
The motion to dismiss then lists at least 25 grounds for dismissal.

Included are suggestions about appropriate means by which King & Spalding could have sought to protect the documents—such as excluding such evidence at the civil trial. The DA also alleged that the school district waived any privilege it had when its counsel contacted lawyers for a defendant in the criminal case.

The DA charged that the petitioned relief—an order "essentially directing the District Attorney to 'pre-clear' responsive documents through counsel" for the school district—can't prevent their public use because they are subject to being filed as discovery. The documents can also be introduced as evidence in the criminal case to which the school district is not a party and has no standing, the DA said.

Also, the DA said, to support a petition for mandamus, the school district must show it would suffer harm, and it hasn't done so.

Instead, the school district "merely incants 'privilege,' failing to identify any particulars," the DA's office argued.

The DA added that King & Spalding took one "desultory swipe" at privilege when it alleged that the DA's office was cooperating with Heery, as the DA produced some of the allegedly privileged documents after the school district filed its motion for a protective order but 24 days before a response was due.

Those affidavits were from Cynthia L. Hill, a lawyer working as a compliance officer with the school district who became a whistleblower and whose affidavits apparently address whether Heery was wrongfully terminated.

The DA's office said the school district's claim of privilege in that affidavit, because it involves "one lawyer speaking to another lawyer," is a "mischaracterization" because Hill "was not seeking or giving legal advice."

The DA analogized that claim to "the same sort of frivolous claims of 'potential privilege' condemned by [the] Federal District Court for the Northern District of Georgia in CBT Flint Partners LLC v. Return Path, Inc. … [where] Judge Thomas Thrash awarded attorney's fees after King & Spalding … made discovery claims that were determined to be, among other things, 'just not true.'"

That case, said Khayat, is irrelevant in the present action. "I think this should be decided on the facts and circumstances here," he said.

The DA's office also alleged that King & Spalding and its client mischaracterized their release of the Hill affidavits as "evidence of some sort of preposterous conspiracy between Heery … and District Attorney James. This tapestry of vitriol is unsupported by anything other than fear and suspicion and is patently false."

In a footnote, the DA's office continued, "Such acrimony is indicative of counsel who not only files suit without legal justification, but who has also lost objectivity."

Khayat denied that his firm acted without legal justification. "The relief that we're seeking is not extraordinary. It's just an opportunity to make any appropriate privilege reviews," he said. "It's standard to review your own documents prior to production, and often in the context of two parties, who for example have contracted together and done so on a confidential basis, it would be ordinary for one to offer the other to review documents prior to a response to a subpoena. Here, it's a little bit different because the district attorney's office seized … some documents, and others were given voluntarily."

Khayat said some of the documents likely are privileged because they reflect the content of meetings between the district and its lawyers. He stressed that his client was not looking for a blanket protective order, only for an opportunity to raise any privilege issues before the judge.

But the DA's office, in its motion to dismiss, pointed to a darker notion, alleging that rather than attempting to satisfy the "towering legal burden" required to support a mandamus, the school district and its lawyers cited law that was "at best, inapposite," and chose to "mischaracterize the facts and law and engage in wild, unsupportable accusations."

The inference the DA's office drew from that tactic in its motion to dismiss: "The American justice system has long observed that how an individual reacts when confronted reflects not only the veracity of the confronting facts, but also the lack of credibility of the one confronted. Georgia law contains voluminous authority for the admissibility of 'adoptive admissions,' 'admissions by conduct' and 'admissions by silence.'

"Applying those principles to this case would lead to one, inescapable conclusion: The school district 'is wrong, they know it and went forward anyway.'"

The case is DeKalb County School District v. James, and Heery Int'l, intervenor, No. 11CV4122.

Correction: The May 4 story "DA: 'Bad faith' in schools case," about the DeKalb County School District's civil litigation, reported that DeKalb Deputy Chief Assistant District Attorney John Melvin during a hearing retracted an earlier statement indicating a petition for mandamus was the appropriate vehicle by which to resolve an aspect of the dispute. Melvin's position is that he maintained that mandamus was the proper vehicle, but said during the hearing that even mandamus would not work because of the right the school system was attempting to exert. Also in this story, the Daily Report reported that David Rubinger was a spokesman for DLA Piper. Rubinger is a spokesman for Heery International, Inc., DLA Piper's client.

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Reprinted with permission from Daily Report

And the Winner Is...

Why - the lawyers, of course!

Below is a snippet of a February 12, 2011 article in the Daily Report written by R. Robin McDonald. This is a very expensive, subscription-only news source for the legal field. Not long ago, we quoted from a past report in the Daily called, "School Case has a Civil Side". (Click here to read our post on it.)

OF ALL THE LEGAL QUESTIONS currently dogging the DeKalb County School District, one about a fee arrangement with a law firm would appear to be among the least of its concerns.

After all, the district's construction contracts have spawned criminal charges against former top school officials and a civil suit against the school district by its former construction management companies that has already cost it more than $20 million to defend.

But the fee deal with King & Spalding, which is representing the district in the civil case, has taken center stage as it has become entangled in the criminal case.

The fee contract, inked in June 2008, allows King & Spalding to collect both its standard hourly rates and a contingency share of whatever damages the school district may collect-should it win its $100 million counterclaim.

If the case settles in a way the firm does not like, it can convert its contingency payment to hourly fees.

Lawyers for the district's former construction managers claim that those terms give King & Spalding so much power over its client that the firm could effectively veto an attempt by the school district to settle the case.

The opposing lawyers say that King & Spalding's resulting financial stake in the case prompted it to try to delay the criminal investigation of its star witness until after the civil case went to trial.

For these reasons, the former school construction managers — Heery International Inc., E.R. Mitchell & Co., and Heery/Mitchell Joint Venture — have asked a DeKalb judge to disqualify King & Spalding as the school district's counsel in the civil case.

King & Spalding lawyers have countered in court pleadings that the allegations against the firm are "complete and utter fiction" and "reminiscent of a John Grisham novel.

The firm dismissed the attacks as a tactic intended to delay a trial at any cost, distract from Heery/Mitchell's alleged misconduct while overseeing $500 million in school construction projects, and "to punish the school district and denigrate its lawyers for holding Heery/Mitchell accountable for its near decade-long reign of fraud, waste and abuse."

There's more. Much more. But you'll have to find a hard copy of the Report to read all about it. Ask the lawyers you know — the ones in the big firms, as this news report is very pricey and small firms don't usually subscribe. Read on for just a bit more:

According to Heery/Mitchell's pleadings, from February 2007 when it filed suit in DeKalb County Superior Court to June 2008, King & Spalding ran up a $20.5 million bill to defend the district and assert what was then a $17 million counterclaim. The total included $8.7 million for attorney fees at what King & Spalding attorneys have said was a discounted hourly rate and more than $11 million for experts and consultants the firm had hired, all of which the district has paid.

King & Spalding's running tab occurred at a particularly inopportune time, Heery/Mitchell said, as the school district was preparing to furlough teachers and close schools to save money.

Below are some interesting facts I pulled from the article as well as from our archives and include here as bulleted text:

• Heery/Mitchell served as DCSS construction manager for DCSS for nine years.
• The system terminated HM's contract in 2006, about a year after replacing long-time manager Stan Pritchett with Pat Pope.
• Heery/Mitchell then sued the school system in February, 2007 for $478,000 in outstanding invoices plus $1 million in damages, interest on the outstanding debt and attorney fees.
• DCSS countersued for $17 million — alleging fraud among other claims.
• After paying $8.7 million to King & Spalding, $3.6 million for a study conducted by Neilsen-Wurster/Marsh, and millions more for other experts, the school system ratcheted up their countersuit to include racketeering and boosting damages to $100 million.
• In a big twist, last May a DeKalb County grand jury charged Lewis, Pat (Pope) Reid and her secretary Cointa Moody along with Pope's then husband Tony Pope with racketeering and public corruption associated with school construction contracts.
• The new "break even sum" is a formula that includes three elements: Recovering the $8.7 million K&S billed and DCSS paid for defending the original $17 million counterclaim, plus more than $11 million K&S contracted for experts and consultants, also already paid by DCSS, and all attorney fees that the firm has incurred since June 1, 2008 through the end of the case.
• King & Spalding then stands to collect an additional 25% of the first $30 million collection, 20% of the second $30 million and 15% of any amount over $60 million.
• If the school district decides to settle with Heery/Mitchell for less than the break-even sum, "contrary to K&S's explicit advice," the firm is entitled to collect either 30 percent of the proposed settlement amount or its actual attorney fees at standard hourly rates - whichever is higher.
• King & Spalding's published "Going Rate" ranges from $460 to $900 an hour.
• It was four months after signing this agreement, negotiated by Josie Alexander for DCSS, that King & Spalding amended the school district's counterclaim against Heery/Mitchell to include $100 million in damages for alleged racketeering, which also carries with it the possibility, if successful, of treble damages.
• Heery/Mitchell attorneys claim that K&S's interest in making sure the firm is eventually paid for what could be as much as an additional $10 million or more in unpaid fees gave it "an irresistible economic incentive" to tailor its legal advice to limit the scope of the criminal investigation or, at the very,least, keep it under wraps until after a trial in the civil case, which was originally scheduled to begin in March 2010.
• Heery/Mitchell attorneys claim that Dr Lewis alerted King & Spalding of a criminal investigation into Pat (Pope) Reid as early as November, 2008, 18 months before the indictments. King & Spalding partner Robert C. Khayat Jr. denies this claim, saying that they were not made aware of the investigation until as late as June, 2009.
• According to notes from an interview with Lewis by W.C. Nix, deputy investigator for the DA, Lewis stated that on the advice of K&S attorneys,  he placed a call to the county's chief assistant district attorney seeking to "table" the investigation of Reid until the civil case was over. Lewis stated that K&S had made it perfectly clear that Pat (Pope) Reid was their best witness in the civil case and that Lewis and the board have not chosen to take actions against Pope due to the amount of money already invested in the civil case. This action by Lewis is what prompted a grand jury to charge Lewis with hindering the criminal investigation. King & Spalding attorneys Hinchey and Khayat emphatically deny advising Lewis to take any action to "table" the investigation.

More on the subject:

This article in the Reporter comes on the heels of a recent report by Megan Matteucci entitled, "Ruling could cost DeKalb schools millions more in legal fees". In it, we learn that --

"DeKalb County taxpayers likely will have to pay millions of dollars more in legal fees in the school district's civil suit against a construction manager, which could include funding representation for ex-superintendent Crawford Lewis, because of a federal court ruling."

"On Tuesday, a federal judge granted the company’s request to send the case back to DeKalb County Superior Court, where it originated. In November, the school system had the case moved to federal court in an effort to circumvent DeKalb Superior Court Judge Clarence Seeliger's decision to enable Heery/Mitchell to sue 17 individuals, in addition to the school system.

As it stands, the district will have to pay for its own legal bills and provide lawyers for those 17 individuals, including Lewis, former chief operating officer Patricia Reid and members of the 2006 school board.

The school system already has spent more than $15.5 million in trial preparation for the suit. The judge's decision could cost several more million dollars, board chairman Tom Bowen said."


What about future SPLOST spending?


Faye Andresen laid out the necessary steps for the board to take in order to avoid future legal pitfalls in their continuation of SPLOST construction. Read her open letter to the board by clicking here.

In conclusion:

Taking all of the above into account, the scene is overwhelming. Will the (partially new) board be able to hold the legal line? Will the school system continue to bleed money into the pockets of lawyers for the forseeable future? Will there ever be a trial? Is there a chance to settle, close this ugly chapter and move on? As taxpayers, we have no idea, yet we are beholden to pay for the process, both in civil and criminal court, both for defense and prosecution. There just doesn't seem to be a resolution in sight. We remain in limbo. Now SACS has expanded the scope of our limbo by deferring any kind of accreditation decision until October, when they will reevaluate. The system's timeline for a new superintendent includes a start date of August.

All of this begs the question: Who in their right mind would apply for the job as superintendent of DeKalb County Schools? Who will come to DeKalb and rescue the children from this tangled web of corruption, deceit and waste?

Hope is dwindling. Help does not appear to be on the horizon. How will we dig out from this deep hole?

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UPDATES:

Read Sunday's report on this subject in the AJC
Firm’s methods questioned

And a follow-up article in Monday's AJC
DeKalb's lawsuit tab: $15.5 million and climbing

And $100,000 for Pat (Pope) Reid's legal fees
DeKalb schools hire lawyer for ex-COO