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Petition filed for fee arbitration between attorneys and board

This is the text of the petition for fee arbitration involving attorneys Terry D. Jackson and Lee Sexton and the Clayton County School Board and District. The petition was filed March 24 and is in a question and answer format.

What is the total amount of attorney's fee?

The total amount billed to date is $70,849.50 for attorney's fees and costs, a copy of that bill dated Han. 27, 2003 is attached. Since the mailing of this bill counsel has received two additional bills from court reporters for the board meetings of Jan. 13, 17 and Feb. 3, 2003 of $650 and $423, courier fee of $6 and copying costs at the Fayette Courthouse of $65.50 (copies of receipts attached.) Also, counsel has not billed the respondent for a supplemental bill for the contract legal services hired to obtain certified divorce documents for former Superintendent Dan Colwell and District Court Documents relating to the noticed hearing of $987, of which $400 was billed as an estimate with the original bill. Counsel has incurred additional time since Jan. 27, 2003 in finalizing the settlement documents, and related matters that was not billed totaling 20.5 hours @$275 for Terry D. Jackson and 15 hours @ $375 for Lee Sexton, for a total bill for attorney's time of $11, 262.50 after Jan. 27, 2003. A supplemental bill is attached.

In addition to the above amounts, counsel is seeking attorney's fees and costs for the respondent's stubbornly litigious conduct shown in this matter as provided by OCGA 13-6-11, and that interest at 7 percent per annum be imposed on the respondent for the breach of the fee agreement as provided by law since Jan. 27, 2003. The respondent should also be required to pay all costs of arbitration, including all arbitrators' fees and expenses. It took seven hours of time to review the file put together (and) put together this petition.

How much of this amount is in dispute?

The respondent has paid nothing and in a meeting with counsel Feb. 2, 2003 in his office, Board Member Latoya walker stated that counsel should cap their fees at $20,000. Counsel refused. Board members Linda Crummy, Nedra Ware and Connie Kitchens were also present at this meeting. The respondents has never offered to pay a cent of the fee, and has failed to make any offers through counsel.

In discussions with the Board's counsel, Gary Sams, Mr. Sams inquired whether counsel would be willing to submit the dispute in question to binding arbitration. Counsel agreed, and offered both private arbitration and the State Bar's Fee Arbitration programs as alternatives. Counsel also offered a one time offer to further reduce the bill that was rejected. Mr. Sams told counsel that the Board did agree to submit the dispute to binding arbitration by vote in executive session, but it refused to use a private arbitrator and wanted to use the State Bar Fee Arbitration program. After waiting more than three weeks for that petition to be submitted, counsel submits this petition.

How much has been paid to the attorney?

None

In what city and state were the legal services performed or supposed to have been performed?

The client is located in Jonesboro, and the majority of legal work was performed in Atlanta, Jonesboro and Stockbridge.

When were the legal services performed?

Jan. 2, 2003 through Feb. 8, 2003

On EXACTLY what date did the fee dispute first arise?

February 2, 2003

For what type of case of legal services was the attorneys employed?

Counsel was retained to represent the school board in removing former Supt. Dan Colwell.

List the main reasons you feel the fee is not correct (or is correct).

On Jan. 2, 2003 Board Chairman Nedra Ware contacted plaintiff's counsel and plaintiff's counsel's office regarding whether counsel would be willing to assist the board in removing then Supt. Dan Colwell due to matters reflecting conflict of interest and moral turpitude while he was superintendent, and that the former board majority illegally made an anticipatory appointment to extend his contact by more than 1 year through January of 2005, despite the fact that Colwell's current contract would not expire until September of 2003. Ware also stated that former Chairman (Mark) Armstrong had lived and resided in another part of the county for more than two years, and that conduct might impact affect the contract of Colwell as Armstrong could not vote or sign any contract while he was an illegal constitutional officer.

Counsel Terry Jackson also related to Ms. Ware that he had one current and one dormant lawsuit pending against the school district in unrelated 42 U.S.C. 1983 matters, including one of those cases that Ware and other board members have been deposed by Jackson on prior occasion. Jackson and Sexton made it clear to the board that these matters would not be discussed with the board, and that the board would have to to waive any potential conflict by unanimous vote, and it did in executive session which was transcribed by the board secretary. The board also voted to retain Jackson, Sexton and Bobby Lee Cook on two different open session voted on Jan. 13, 2003 and Jan. 17, 2003 as reflected by the Court Reporter's Transcription of both of these meetings. Certain board members have stated that counsel agreed to bill only $125 per hour for our services, the same as allegedly billed by other counsel employed by them, but counsel never agreed to limit our fees in total amount or by the hourly rate.

After investigating these matters, and conducting legal work that is reflected in detail in the bills attached to this petition, former Superintendent Dan Colwell agreed to resign on Jan. 22, 2003 and the counsel was able to cut off more than $232,000 in additional compensation that Colwell was contending was owed and due Colwell under the October 2002 extension approved by five of the eight board members present that night. The school district was also able to avoid a protracted legal battle where Colwell had retained two law firms n Brown & Associated and Burr & Forman n to represent him in these matters. In return, Colwell was paid the term of his original contract set to expire in September 2003, and he was paid through December 2003 so as to not affect his retirement under the Georgia Teacher's Pension Plan. Colwell was paid no attorney's fees and his involvement with the school district ceased immediately as required under the terms of the agreement. At the time the matter was resolved at a board meeting lasting until 2 a.m. counsel Sexton and Jackson told the board that they were about to receive a bill of approximately $75,000, that if the Fair Dismissal Act hearing was held in 10 days it would likely cost another $70,000 minimum and that a protracted legal battle would dwarf any amounts owed and due Colwell. Despite our confidence that he could be fired with cause voiding any further obligation to him. A Pyrrhic victory is not a victory, and the Board agreed to settle the matter. However, after Colwell agreed to our terms of settlement board member Latoya Walker telephoned another lawyer on her cellphone, and she then convinced several other board members to renege on its offer to settle with Colwell. After two more hours of negotiation, the Board again made the exact offer it made to Colwell previously and the matter was settled on the exact terms Colwell accepted previously. Unanimously.

Colwell created a media fire storm by attempting to make the terms of his removal a race issue and soliciting widespread media coverage of this issue. But, when he and his counsel were confronted with the evidence in question, and told that the allegations and evidence we were mustering would be presented against him in a public forum before the board the matter was resolved after less than 10 days without further delay. The legal bills in fighting Colwell and his counsel would have dwarfed Colwells' entire contract, including the Oct. 2, 2002 extension of more than $250,000.

After submitting the bill to the board, hand delivering a copy to board chairman Ware on Jan. 27, 2003, counsel heard no complaint from the board about the bill until Sunday afternoon, Feb. 2, 2003. In a meeting requested board chairman Ware in counsel's office, LaToya Walker stated that if counsel cared about the kids of Clayton County we would agree to cap our fees at $20,000 despite close to 300 hours of legal work being performed to date in that matter. The chief complaint of Walker and the other board member involved were that they were catching "heat" from their constituents for the amount of the bill once it began (became) public, not about the quality or end result of the objective they hired counsel for in this matter. The Board has yet to identify or quantify a single complaint with the quality of legal services provided, that the goal of removing Colwell was not achieved, or the bill submitted. The Board simply does not want to pay it because it is "too high," they are catching "heat," and they now dispute our hourly rates and falsely argue that we agreed to cap our fees.

By simple math, counsel saved the school district over $232,00 on Colwell's contract for the period Jan. 1, 2004 through Jan. 1, 2005. Counsel saved the school district at least $75,000 additional dollars in fees for the legal work that would have been required to proceed with a Fair Dismissal Act Hearing, and it avoided protracted litigation in the state and appellate courts with Colwell over this matter with legal bills that would have easily eclipsed Colwell's contract in total.

Counsel did not seek out the board as a client, it sought counsel to represent it. Now that the work is done, the desired result accomplished inside 10 days from the firing of Colwell, the Board is simply unwilling to pay the bill for those services.

This board continues under public scrutiny for its misconduct in this matter and other dealings, and the Clayton County grand jury is currently taking testimony on the behind the scenes machinations of these board members in these and other matters.

Counsel for the Board set aside depositions previously scheduled and other legal matters to devote their full attention to the Board's business at its request in this matter including attending two board meetings that last past midnight and fielding telephone calls from the board members at all hours of the day and night. Counsel believes that this case is the classic tale of being called upon by a public entity to assist it in defusing a media mess created by its own rash decisions, and for that effort counsel is now being punished because the board is catching "heat" for its decision. No good deed with the Board goes unpunished.

On a separate piece of paper state in DETAIL (1) the nature of the dispute, (2) the particulars of your position, and (3) all relevant dates. State the amount of attorney fee that you feel is correct. This is your opportunity to explain your side of the fee dispute. Please take advantage of it by being complete, yet concise, in answering this question.

See number 8 above

Have you made a good faith effort to resolve this dispute?

Yes. Counsel has received no offers in this case, but agreed to arbitrate this matter before the State Bar or a private arbitrator. Counsel also made a one time offer to reduce the bill to the Board's counsel in lieu of arbitration to decide the matter, using the state bar'srules, to expedite the resolution of this matter. Counsel believes that the reason for this continued delay is just that, delay. After waiting weeks for the Board to submit the prition to the Bar, we have submitted our petition instead and ask that this binding arbitration matter be expedited.

Is this dispute over attorney's fees presently the subject of litigation in any court?

No. Counsel agreed to forego filing a lawsuit in Clayton County Superior Court against the board if it agreed to binding arbitration and this petition follows that agreement.

Do you agree to be bound by the results of this arbitration?

Yes. Both parties have agreed to be bound by the arbitrators' decision.