ag v birmingham schools: motion for temporary restraining order and preliminary injunction

7/31/2019 AG v Birmingham Schools: Motion for Temporary Restraining Order and Preliminary Injunction

1/10

223203.1 1

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

STATE OF ALABAMA BOARD OF

EDUCATION, DR. THOMAS R. BICE, in his

capacity as State Superintendent of Education,

LUTHER STRANGE, in his capacity asAttorney General of the State of Alabama,

Plaintiffs,

v.

BIRMINGHAM CITY BOARD OF

EDUCATION, EDWARD MADDOX,

President, Birmingham City Board of Education,

ALANA W. EDWARDS, Vice President,Birmingham City Board of Education,TYRONE H. BELCHER, SR., District 1

Representative,Birmingham City Board ofEducation, EMANUEL B. FORD, District 5

Representative, Birmingham City Board of

Education, BRIAN GIATTINA, District 3Representative, Birmingham City Board of

Education, W.J. MAYE, JR., District 6


Education, VIRGINIA S. VOLKER, District 2Representative, Birmingham City Board of

Education, APRIL M. WILLIAMS, District 8

Representative, Birmingham City Board ofEducation, PHYLLIS F. WYNE, District 9


Education; SAMUETTA DREW, ChiefOperations Officer and Putative Interim

Superintendent, Birmingham City Board of

Education,

Defendants.

)

)

)

))

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

CIVIL ACTION NO. CV-2012-902271

MOTION FOR TEMPORARY RESTRAINING ORDERAND PRELIMINARY INJUNCTION

The State of Alabama Board of Education (SBE), Dr. Thomas R. Bice, in his capacity

as State Superintendent of Education, and Luther Strange, in his capacity as Attorney General of

the State of Alabama, move this Court for entry of a Temporary Restraining Order and a

ELECTRONICALLY FILED7/20/2012 1:15 PM

CV-2012-902271.00CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMANNE-MARIE ADAMS, CLERK


2/10

223203.1 2

Preliminary Injunction to prevent the defendants, and everyone working in concert or

participation with them, from acting in defiance of the authority of the SBE and Superintendent

Bice to manage and control in all respects the financial operation of the Birmingham City Board

of Education (the Birmingham Board) until the rights and duties of the parties can be

determined by the Court and proceeding to consider preliminary and permanent injunctive relief

can be conducted. As grounds for this motion, the plaintiffs show as follows:

Introduction

Now and for some time in the past the Birmingham Board has been in an unsound

financial condition, which has created exigent and adverse circumstances affecting the

immediate and long-term educational interests of the Birmingham school system. For example,

the Birmingham school system is unprepared, both fiscally and administratively, to begin the

2012-13 school year. The fiscal unsoundness of the Birmingham Board has prompted

intervention by the SBE, and Superintendent Bice has assumed full and complete control over

the financial operations of the Birmingham Board. The Birmingham Board, however, has openly

defied the authority of Superintendent Bice by refusing to implement a Financial Recovery Plan

(that has been approved by the Birmingham Board) that is essential to restoring fiscal stability to

the Birmingham Board, and has even taking the extreme action of denying, temporarily, the State

Superintendents staff access to the offices of the Birmingham Board and to their own files and

computers. In short, the Birmingham Board is in a state of financial instability and political crisis

and immediate court intervention is necessary to restore order and to ensure the prompt opening

of the Birmingham school system for the 2012-13 academic year.


3/10

223203.1 3

Argument and Citation to Authority

1. In response to this crisis, and pursuant to state law ALA.CODE 16-6B-4,1 see

also 16-3-11 (The State Board of Education shall exercise, through the State Superintendent

of Education and his professional assistants, general control and supervision over the public

schools of the state .) and 16-4-8 (the Superintendent shall have the authority to review

actions and orders of city boards of education and of city superintendents of schools in

matters relating to finance and other matters seriously affecting the educational interest. Upon

such review the State Superintendent of Education shall have the power to determine from the

facts the just and proper disposition of the matter. The order of the state superintendent shall be

binding.) Superintendent Bice appointed Dr. Ed Richardson as Chief Financial Officer

(CFO) and made him responsible for preventing further deterioration of the Birmingham

Boards financial condition, restoring the Birmingham Board to financial stability, and enforcing

the Birmingham Boards compliance with statutory, regulatory, and other binding legal standards

or requirements relating to the fiscal operation of the Birmingham Board.

2. Since Superintendent Bice appointed the CFO, the Birmingham Board has

opposed the authority of Superintendent Bice and his appointed CFO. The actions of the

1Section 16-6B-4 pertains to the SBEs intervention powers to maintain financial

accountability and provides, in relevant part: Upon approval by the State Board of Education,the State Superintendent of Education shall appoint an individual to be chief financial officer to

manage the fiscal operation of the local board of education, until such time as the fiscal condition

of the system is restored . The State Superintendent of Education, directly or indirectly

through the chief financial officer, may direct or approve such actions as may in his or herjudgment be necessary to: (1) Prevent further deterioration in the financial condition of the local

board; (2) restore the local board of education to financial stability; and (3) enforce compliance

with statutory, regulatory, or other binding legal standards or requirements relating to the fiscaloperation of the local board of education .


4/10

223203.1 4

Birmingham Board threaten effectively to undo the action of Superintendent Bice in appointing

the CFO.

3. As a consequence of the Birmingham Boards unlawful conduct and defiance, and

its attempt to effectively undo the appointment of the CFO, the rights and interests of the State

are being irreparably harmed each day that the CFO is unable to perform his duties.

4. Based on the contents of the verified complaint and its exhibits, plaintiffs are

likely to succeed on the merits of this action to determine the respective rights of the parties

under Alabama law. The rights of the parties are clear and well-defined under Alabama law;

however, the actions of the defendants have given rise to uncertainty and insecurity with respect

to the plaintiffs rights, status, and other legal relations so as to make immediate injunctive relief

appropriate. Superintendent Bice has been granted the express authority by the SBE to intervene

and assume direct control of the fiscal operation of the Birmingham City Board of Education

and to appoint a Chief Financial Officer to manage the financial operations of the Birmingham

City Board of Education and to make associated recommendations to the State Superintendent of

Education as necessary to restore the Birmingham City Board of Education to a sound financial

condition. Superintendent Bice has duly appointed a CFO, Dr. Ed Richardson. Nevertheless,

the Birmingham Board, without legal basis, has refused to cooperate with the CFO, and through

him with Superintendent Bice (and the SBE), and instead has defied the CFOs authority to

manage and control the Birmingham Boards financial operations. Accordingly, the Birmingham

Board is acting beyond its authority and directly contrary to and in defiance of Alabama law and

the lawful directives of state officials.

5. Plaintiffs are suffering immediate and irreparable injury as the Defendants are

openly defying state law and directives of state officials authorized to give those directives.


5/10

223203.1 5

Without a temporary restraining order and a preliminary injunction, plaintiffs will continue to

suffer immediate and irreparable injury as is evident from the Birmingham Boards

obstructionist tactics and actions over the past several months, and its inability to meet its

obligations for the 2012-2013 school year in that the authority of Superintendent Bice will

continue to be defied, challenged and disregarded, further jeopardizing the fiscal soundness of

the Birmingham Board and the Birmingham school system and the prompt opening of the

Birmingham schools for the 2012-13 academic year.

6. Plaintiffs have no plain, speedy or adequate remedy at law to protect their

interests, foremost of which is protecting the students of the Birmingham school system and their

parents from the continuing and further dangers associated with the Birmingham Boards fiscal

mismanagement.

7. There will be no hardship to Defendants as a result of injunctive relief because

Defendants are acting unlawfully. In any event, any hardship imposed on Defendants by an

injunction would not unreasonably outweigh the benefit accruing to Plaintiffs.

8. The injunctive relief requested by plaintiffs, moreover, will not adversely impact

the public interest. To the contrary, the public interest would be served by injunctive relief

because, without an injunction, the Birmingham Board will continue to defy the authority of

Superintendent Bice which, in turn, will jeopardize the fiscal soundness of the Birmingham

Board and the prompt opening of the Birmingham school system. Indeed, if injunctive relief is

denied, the opening of the Birmingham schools may be delayed significantly.

9. The undersigned counsel certifies that prior to filing and presenting this motion,

he notified legal counsel for the Birmingham Board that the motion was being presented to this

Court, and served by email a copy of the motion on counsel for the Birmingham Board.


6/10

223203.1 6

WHEREFORE, premises considered, Plaintiffs respectfully request this Court to take

jurisdiction of this cause and:

(a). Enter, in accordance with Ala. R. Civ. P. 65(b), a temporary restraining

order specifically restraining and enjoining defendants from (i) interfering, directly or indirectly,

with the implementation of the Financial Recovery Plan heretoforeapprovedby the Birmingham

City Board of Education, (ii) interfering, directly or indirectly, with any other decisions or

actions deemed necessary and appropriate by Superintendent Bice to ensure that the Birmingham

school system opens in a timely and orderly manner, (iii) interfering, directly or indirectly, with

Superintendent Bices and his staffs unfettered access to the offices of the Birmingham City

Board of Education and their computers and files, and (iv) taking any action that is inconsistent

with Dr. Craig Witherspoons continuing to serve as the Superintendent of the Birmingham

Board, until the rights and duties of the parties can be determined by the Court and any further

injunctive relief can be considered.

(b). Set this matter for hearing on preliminary injunction within 10 days, and

upon such hearing, specifically restrain and enjoin defendants, pending a final decision on the

merits, from (i) interfering, directly or indirectly, with the implementation of the Financial

Recovery Plan heretoforeapprovedby the Birmingham City Board of Education,(ii) interfering,

directly or indirectly, with any other decisions or actions deemed necessary and appropriate by

Superintendent Bice to ensure that the Birmingham school system opens in a timely and orderly

manner, and (iii) interfering, directly or indirectly, with Superintendent Bices and his staffs

unfettered access to the offices of the Birmingham City Board of Education and their computers

and files, and (iv) taking any action that is inconsistent with Dr. Craig Witherspoons continuing

to serve as the Superintendent of the Birmingham Board.


7/10

223203.1 7

Respectfully submitted this 20th day of July, 2012.

LUTHER STRANGE (STR003)

Attorney General

BY:

s/Joshua K. Payne

Joshua K. Payne (PAY024)

Assistant Attorney General

OF COUNSEL:

Office of the Attorney General

501 Washington Avenue

Montgomery, AL 36130334/242-7300

334/353-8440 (fax)[email protected]

s/David R. Boyd

One of Counsel for the State Board of Education

and Dr. Thomas R. Bice

OF COUNSEL:

David R. Boyd (BOY005)Dorman Walker (WAL086)

G. Lane Knight (KNI028)

Balch & Bingham LLPPost Office Box 78

Montgomery, AL 36101-0078

334/834-6500

334/269-3115 (fax)[email protected]

[email protected]

[email protected]

Larry E. Craven (CRA007)Juliana T. Dean (DEA036)

Alabama State Department of Education

P.O. Office Box 302101Montgomery, AL 3613-2101

334/242-1899

334/242-0982 (Fax)

[email protected]@alsde.edu
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


8/10

223203.1 8

DEFENDANTS TO BE SERVED BY CERTIFIED MAIL:

Birmingham City Board of Education

2015 Par Place North

Birmingham Alabama 35203

Edward Maddox

President




Alana W. Edwards

Vice President




Tyrone H. Belcher, Jrs.

District 1 Representative




Emanuel B. Ford





Brian Giattina





W.J. Maye, Jr.






9/10

223203.1 9

Virginia S. Volker





April M. Williams





Phyllis F. Wyne





Samuetta Drew

Chief Operations Officer





10/10

223203.1 10

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the foregoing with the Clerk of the Court

using the AlaFile system which will send notification of such filing and/or that a copy of the

foregoing has been served upon the following by electronic mail, on this the 20th day of July,

2012:

Frederic A. Bolling, Esq.

The Bolling Law Firm LLC

1370 Rock Creek Lane

Pleasant Grove, Alabama 35127

E-mail:[email protected]

Tom Stewart, Esq.

Waldrep, Stewart & Kendrick

2323 Second Avenue North

Birmingham, Alabama 35223E-mail: [email protected]

Afrika C. Parchmank, Esq.

Birmingham City Schools

2015 Park Place

Birmingham, Alabama 35203

E-mail: [email protected]

s/David R. Boyd

OF COUNSEL
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

ag v birmingham schools: motion for temporary restraining order and preliminary injunction

Documents