Attorney: Asking two Phenix City school board members to leave closed session was improper

mrice@ledger-enquirer.comJuly 17, 2014 

It was improper for the Phenix City Board of Education president to ask two board members to leave last week's closed discussion of a lawsuit, the general counsel for the Alabama Association of School Boards said Thursday.

Although neither state law nor AASB policy addresses the matter directly, AASB general counsel Jayne Harrell Williams said she never has heard of such a situation in her 13 years of practicing school board law.

"I would not advise for it to be done," Williams told the Ledger-Enquirer. "… It's not how I would have handled it. It just seems so far afield to me for that to be the action taken."

During its July 8 called meeting, the board voted to go into closed session to discuss two issues: the "good name and character" of an individual and pending litigation, as allowed by Alabama law. After dealing with the first issue, board president Brad Baker asked board members Barbara Mitchell and Zara Parham to leave the room and not participate in the discussion of the pending litigation, Mitchell said Thursday.

The litigation the board discussed was the Rev. I.N. Hudson Jr.'s lawsuit filed July 1 against the board for an alleged violation of the Alabama Open Meetings Act during its superintendent search. Hudson, the senior minister of Nichols Chapel AME Church, seeks the Russell County Circuit Court to invalidate the board's hiring of Randy Wilkes.

The board ended its 6½-month superintendent search June 10, when it hired Wilkes from Crenshaw County without a public interview or his candidacy being disclosed. The surprise move came at the end of a called meeting and after a 30-minute closed session to discuss "good name and character."

Wilkes' hiring wasn't on the agenda and was approved without public discussion. Baker, vice president Kelvin Redd, Rick Carpenter, Fran Ellis and Paul Stamp voted to hire Wilkes. Those board members had met individually with Wilkes. Mitchell and Zara Parham, the two board members who hadn't met with Wilkes, abstained from the vote.

That's why, said Hudson's attorney, Joseph Wiley, the original filing of the lawsuit named the board as a whole and the five members who voted yes as individuals -- but not Mitchell and Parham. And that's why Baker asked Mitchell and Parham to not participate in the closed discussion about the lawsuit, Mitchell said.

Asked whether anyone in the boardroom objected to that request, Mitchell said, "We were just asked to leave, and we obeyed. I didn't have any qualms about it either way."

Parham referred all questions about the situation to Baker, who wasn't reached for comment. Sydney Smith, the board's attorney, said in an email, "I am aware that you have called the Alabama Association of School Boards asking about this matter. Neither I nor Mr. Baker have any comment on this."

Smith filed the board's response to the lawsuit July 10, two days after the closed session. In that response, the board alleged Hudson and the group of activist ministers to which he belongs, the Community of Concerned Clergy, are "harassing, intimidating, humiliating, defaming and interfering" with the board and some of its members.

Asked whether that's how she feels about Hudson and the clergy group, Mitchell said, "No, sir. Those folks haven't said one word to me. They've just shown up … I think they can do that; it's a public meeting."

The board's response to the lawsuit also states, "Plaintiff's Complaint does not name all of the Board Members who remained in attendance at the meeting allegedly held in violation of the Open Meeting Act."

That point is among the amendments Wiley filed Monday to Hudson's original lawsuit. So now Mitchell and Parham are indeed named individually along with the rest of the board members in the lawsuit.

Williams, the AASB's general counsel, noted the board being sued as a whole makes moot the issue of which board members were named individually.

"Even if at the time of this executive session those two board members were not named in the suit," she said, "the board itself was sued."

As a result, Williams said, Mitchell and Parham shouldn't have been asked to leave.

"Executive session is a tool for the board," Williams said. "That's a function of the board, not any individual members."

Mitchell said she abstained because she wasn’t available when board members met individually with Wilkes and therefore didn’t have enough information to vote on the superintendent. She said she also wanted the board to interview Wilkes in public, as the board did with two other candidates.

Mark Rice, 706-576-6272. Follow Mark on Twitter@MarkRiceLE.

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