By Curt Yeomans
A Clayton County Superior Court judge will preside over a hearing in October to decide whether a fellow superior court judge should preside over county school board member Michael King's appeal of his removal from office.
Superior Court Judge Albert Collier will hear arguments on Oct. 19, at 1:30 p.m., on a motion to have Superior Court Judge Deborah Benefield removed from King's case. King is seeking to have Benefield dropped because she dismissed a motion he filed last year seeking to appeal his censure by the Clayton Board of Education.
King also said he may subpoena Judge Benefield to testify in the case that is pending before her.
"Because Judge Deborah Benefield is expected to be called as a witness on behalf of the petitioner, and testify about her actions to deny petitioner due process of law concerning the school system's ethics proceedings, she should be recused as the presiding judge," King said in a July 9 written motion to have Benefield removed.
King won the school board's District 4 seat in an August 2008 special election. His pledge was to save the school district's Southern Association of Colleges and Schools' (SACS) accreditation. SACS revoked the accreditation a few days after King took office, but retroactively restored it on May 1.
King has spent much of his term fighting allegations that he engaged in unethical conduct by continuing to represent a former Clayton County teacher in a federal lawsuit against the school system while he was a sitting board member. The school board's ethics commission decided King should be removed from office on Feb. 11 for his actions, and the school board supported that decision in late March.
King has appealed both the ethics commission's decision, and the school board's vote -- in separate cases. In each case, he argues that the commission is unconstitutional, and does not have the authority to order his removal from office.
The case involving the appeal of the school board's vote is presently before Benefield. In addition to the issue of her involvement in his previous appeal of the censure, King is accusing Benefield of "unlawfully" dismissing his appeal of the censure, and of working to get his cases assigned to her.
Another allegation contained in his July 8 affidavit filed with his motion to have Benefield recused is that she allegedly conspired against him with a former school board attorney and Board Chairperson Alieka Anderson to have him removed from office.
"I believe that Judge Deborah Benefield conspired with former School Board Attorney Julie Lewis, and School Board Chair Alieka Anderson, to bring false ethics charges against me, and deny me fair and impartial administrative, and appeal hearings," King said in his written affidavit.
On Thursday, King declined to go into detail about his allegation of a conspiracy. He said he is still investigating whether it happened. The alleged conspiracy is an accusation Benefield denied in her order July 15, for a hearing on King's motion.
"For the most part, Mr. King's affidavit falls into this category," Benefield wrote in her order. "Other than his 'beliefs,' the only alleged fact is that this court had his case 'unlawfully' reassigned and 'unlawfully' dismissed it. Upon review of the motion and affidavit, if the alleged facts were true, then it appears recusal may be warranted ...
"Therefore, another judge shall be assigned to hear the motion to recuse," Benefield said. "The allegations of the motion shall stand denied automatically."
King said he also filed -- with Clayton County Superior Court -- a notice of his intent to appeal to the Georgia Supreme Court, Judge Geronda Carter's June 30 decision to dismiss the similar case against the ethics commission. Court records show King's notice of appeal was filed on July 30, 17 days after Carter formally put her decision in writing. Supreme Court of Georgia Spokesperson Jane Hanson said the appeal has not yet reached the state's highest court, although King said it is Clayton County Superior Court Clerk Linda Miller's responsibility to pass the case along to the Supreme Court.
King said that he would like to have the State Supreme Court stop the hearing on his motion to have Benefield recused until it can rule on whether the ethics commission is constitutionally valid. If the court declares House Bill 1302, which created the commission in 2008, and the commission as unconstitutional, then, the case before Benefield would become moot, King said.
While King fights to keep his seat, his appeals could possibly ensure that he stays in office for the remainder of his term. House Bill 1302 includes a provision that allows board members to retain their seats, and participate in board votes, while they are appealing a decision by the commission to remove them from office.
A revised House bill passed by the General Assembly earlier this year, strips Clayton school board members of their ability to vote while appealing ethics commission decisions. But, that does not apply in King's case, since the commission had already taken action against him before the revision was signed into law by Gov. Sonny Perdue.
So far, while he has held onto his seat through appeals, King participated in several key votes taken by the school board, including:
· A unanimous 7-0 vote to fire former Superintendent John Thompson, and install Valya Lee as interim superintendent, on March 14.
· Being one of three board members who voted on March 24 against endorsing the decision by the school board's ethics commission to remove him from office. The board voted 6-3 in favor of the commission's decision.
· Being one of four board members who voted against hiring new Superintendent Edmond Heatley, in a razor thin (5-4) vote on May 18.
· Being one of two board members who voted against Heatley's $250,000 per year contract on May 26. The contract was approved at that meeting by a 7-2 vote.
· Being the lone dissenting voice in a 7-1 vote on June 29 to approve the school system's $574.1 million fiscal year 2010 budget.
· Being one of three members who voted on the same day as the budget vote against raising the school system's millage rate to the maximum 20 mills allowed under state law. The board voted 5-3 in favor of raising the millage rate.
· Being one of two board members who voted against uniform dress for high school students on July 13. The board approved uniform dress for the students by a 6-2 vote.
· A unanimous 8-0 vote on Monday to furlough Clayton County teachers and guidance counselors for the equivalent of three days this fall.
The next regular election for King's seat is scheduled to take place next year. King said he expects his appeals to remain in the court system until at least March 2010. The primary election for a four-year term in the school board's District 4 seat is scheduled to take place four months later.
While King said he is hoping for a quick resolution in his favor, he added that previous cases he has taken to the Supreme Court of Georgia have remained on that's court's docket for up to a year. King said he hopes he does not spend the remainder of his term fighting the ethics commission's decision to remove him from office, and the school board's vote to support that decision.
"I don't plan on running for re-election," he said. "I've done what I said I was going to do [to work on restoring accreditation of Clayton schools], but I want to get this constitutional issue resolved."