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Some board members counter grand jury report

The following is a statement by five members of the school board:

Dear Mr. Keller:

The purpose of this letter is to respond to the proposed report of the grand jury and to inform you that on behalf of five of the eight present members of the Clayton County Board of Education, who I represent, we object to the proposed report on several grounds. On behalf of my clients, Nedra Ware, Connie Kitchens, Linda Crummy, Carol Kellam, and LaToya Walker, we submit that the Grand Jury's proposed report is legally improper; exceeds the Grand Jury's legal authority; is contrary to established Georgia law; and erroneously and illegally states that wrongdoing and misconduct has been engaged in by the Clayton County Board of Education or certain of its members. Additionally, as will be more fully set forth herein, the proposed report is flawed, in that certain alleged facts that the report is based upon did not occur and were not engaged in.

My clients were delivered a copy of the Grand Jury's proposed report by School Board attorney Gary Sams at their last boar meeting. The report issued to them is numbered pages 4 through 9. We assume that what they were delivered is the complete report. Before stating our objections to the report, please allow me to discuss with you the circumstance surrounding three of my clients being interviewed by the media and holding a news conference on Monday, April 28.

I have been informed by these three clients that they only held the news conference to discuss the report after being contacted by a member of the press who already had a copy of the proposed report. One of my clients actually made inquiry of the news reporter pertaining to when and where this reporter received the proposed report and the reporter indicated that the report was received on Friday from another School Board member, the identity of which the reporter would not divulge.

In my April 17 letter to you, I questioned whether this Grand Jury was investigating these matters in good faith, or whether this investigation had been prompted and influenced by those aimed at discrediting my clients. We have received information that Dan Colwell, the disgruntled former superintendent, may have been among those who requested this grand jury inquiry. Suffice it to say, it appears from my research and investigation, that this type of grand jury investigation is almost unprecedented. When former Superintendent Joe Hairston was forced to resign by the Clayton County School Board and replaced with Superintendent Colwell, although questions were raised by several of my clients who were members of the School Board, pertaining to the legality of that action, no one invoked the grand jury's jurisdiction or power. It is also unprecedented that a grand jury would place in a report that a public official, or a group of public officials, should be voted out of office. This is clearly an improper area for a grand jury to get involved in and such an attempt to control the independence of a elected School Board member to vote his or her convictions and to do what he or she believes is appropriate in changing the school system for the better is totally improper. This report of the Grand Jury seems to ignore that the voters elected these School Board members.

The Presentment prepared by the Clayton County Grand Jury exceeds the permissible scope of its powers created by O.C.G.A. 15-12-71. That code section specifically sets forth the duties of a grand jury. Included in the duties enumerated in O.C.G.A. 15-12-71 is the power to inspect or investigate the county board of education, and ability to prepare reports or issue presentments based upon it's inspections. See O.C.G.A. 14-12-71 (2) and (3). This grant of power to grand juries is not without limitations.

The proposed presentment exceeds the Grand Jury's power in two ways. Grand juries may not prepare reports which contain statements unnecessary to the purpose of the report and grand juries may not file a report charging misconduct in office upon an officer or impugn his character except by presentment or true bill of indictment charging such individual with a specific offense. See Thompson v. Macon-Bibb County Hosp. Auth., 246 Ga. 777 (1980) and Kelley v. Tanksley, 105 GA. App. 65 (1961), respectively.

This presentment contains numerous statements unnecessary to the purpose sought to be accomplished by the presentment, and which under a reasonable interpretation thereof, do by innuendo and implication cast reflections of misconduct upon the Board of Education and its individual members, including my clients. See In Re: Floyd County Grand Jury Presentment for May Term 1996, 225 Ga. App. 705 (1997) (citing to Kelley v. Tanksley at 66-67). The presentment's stated purpose is to "examine the action of the Board of Education relating to the firing of Superintendent Dan Colwell and all other matters relating to the conduct of the Board of Education since January 2003." Ironically, January 2003 is when the makeup of the Clayton County School Board changed drastically. Although it well established that prior to January 2003 an individual who did not even reside in the district in which that individual served voted an served on the Clayton County Board of Education for an extended period of time, no question appears to be raised by the Grand Jury about this matter. Despite the alleged purpose, the proposed report does little more than impugn the character of the School Board members and cast reflections of misconduct on their offices.

While examining the circumstances relating to the dismissal of Superintendent Colwell is stated as a purpose for the investigation and the report, no one can contest that a school board and its members have the express statutory authority to hire and fire a school superintendent. See O.C.G.A. 20-2-101. Elected School Board members, my clients, have the legitimate power to discuss Colwell's performance and to vote to remove him as school superintendent. The Grand Jury's investigation of this personnel decision and the Grand Jury's attempt to mandate that no senior administrative personnel be removed or replaced until a new superintendent is chosen is also beyond the Grand Jury's jurisdiction and authority.

The other purpose stated, examining all other mattes related to the conduct of the board since January 2003, is so vague and amorphous that it cannot be viewed as valid. The conduct and actions of a grand jury in investigating decisions of an elected body within that elected body's legitimate authority is clearly unprecedented. When the proposed presentment is viewed in light of its intent to examine the circumstances surrounding the dismissal of Superintendent Colwell, a purpose that we believe in and of itself exceeds legitimate authority of the Grand Jury, it is apparent that other paragraphs contained in the presentment exceed the permissible scope of the Clayton County Grand Jury's power and legally must be stricken.

Enumerated paragraphs two (2) through seven (7) have no relation to the dismissal of Dan Colwell and must be struck based on the fact that they are unnecessary to the report. Paragraph two (2) addresses the appointment of Carol Kellam to the Board of Education and claims that this was not included in the published agenda for the January 13th meeting. As I am sure you are aware, O.C.G.A. 50-14-1 the Open Meetings Act, expressly allows items to be added to an agenda when it becomes "necessary to address during the course of a meeting." See O.C.G.A 50-14-1 at (e) (1). Moreover, the claim that the appointment of Carol Kellam was not included on the agenda is wrong and incorrect. In fact, the agenda itself, a copy of which is attached, reveals that this very item was on the agenda for the January 13th meeting. It is agenda item number one (1) and is listed as follows: "Discussion and possible appointment of school board member for District 7."

Paragraph three (3) focuses on the appointment of an attorney and the subsequent realization that this appointment may have arguably created a conflict of interest. Although the attorney was hired to represent the board with regard to the dismissal of Superintendent Colwell, this is not enough to make this paragraph necessary to the report. Paragraph four (4) merely perpetuates a story reported b the press regarding an inquiry into allegations of mismanagement . Paragraph five (5) refers to the School Board's former policy of videotaping meetings for the public. This paragraph bares no relation to the dismissal of Superintendent Colwell, additionally, the Clayton County School Board is not required to videotape its meetings. Paragraph six (60 addresses alleged communication problems between members of the School Board. This paragraph perpetuates negative press reports of Board meetings, and has no relation to the dismissal of Superintendent Colwell. Paragraph seven (7) appears to be nothing more than a threat against School Board members which is obviously unnecessary to the report.

Beyond impermissibly attacking the character and integrity of the School Board, these paragraphs appear to be an attempt by this grand jury to usurp the School Board's power by limiting how it can act procedurally and substantively. The Clayton County School Board is an autonomous authority empowered to make certain decisions within the scope of certain state and local rules and regulations. The Clayton County Grand ;Jury is not charged with the authority to dictate how the school board must act, if the Schol Board acts within the bounds of its legitimate authority; that is for the voters to decide at the ballot box. It is also clearly established that the Grand Jury should not be able to dictate how elected officials cast their votes.

The grand jury ha(s) no right to return a report charging or casting reflections of misconduct in office upon the (school board members) or impugning (their) character, without a presentment or true bill of indictment charging (them) with a specific offense against the State; and it is the right of the (school board) members who are subject of such extra-judicial report, to have it expunged from the official records See Id. (citing Harris v. Edmonds. 119 Ga. App. 305 (1969); see also In Re: Presentments of the Lowndes County Grand Jury, March 1982, 166 Ga. App 258 at 259 (1983) Several of the enumerated paragraphs charge and imply misconduct on the part of the School Board members and impermissibly impugn their character. This informal allegation of misconduct exceeds the scope of the Grand Jury's power because it fails to list specific offenses. The presentment informally accuses the board members of violating the Open Meetings Act, malfeasance in the hiring of counsel, and mismanagement which could lead to the loss of accreditation. Not only is the substance of these accusations completely unfounded and unsupported by fact, but the informal manner in which thee allegations are presented is a clear abuse of the Grand Jury's power. These allegations as presented are impermissible and should be struck from the proposed report.

The presentment prepared by the Clayton County Grand Jury is nothing more than an impermissible attack on the character and reputation of the Clayton County School Board and its members. This presentment clearly exceeds the powers granted to that body by O.C.G.A. 15-12-71, and as such should not be presented to the Court on April 30, 2003 as you have indicated it will be.

If the Grand Jury's report is submitted to the court, it is our intention to see whatever legal remedies are available to strike and challenge the legality of the Grand Jury's actions and the report. In the event that you submit the report to the Court as planned we request that you provide the Court with a copy of this letter setting forth our objections to the same. Additionally, I respectfully request that you provide us with a copy of any final report submitted to the Court.

I appreciate your consideration of my clients' position and objections to the report. If you have any questions, or you would like to discuss this matter, please do not hesitate to call me.

Charles A. Mathis Jr.