FAIRFIELD CITIZENS FOR BETTER SCHOOLS

ELECTRONICALLY FILED

3/19/2008 10:51 AM

CV-2007-000932.00

CIRCUIT COURT OF

JEFFERSON COUNTY, ALABAMA

EARL CARTER, CLERK

IN  THE   CIRCUIT  COURT  OF  JEFFERSON  COUNTY,   ALABAMA

BESSEMER DIVISION

CITIZENS   FOR BETTER  SCHOOLS,       

an unincorporated association                  

by Ronald E.   Jackson,   Gladys              

T.   Coleman,   a Fairfield                        

Resident,                                                 

Plaintiffs,                      

vs.                                                                         Case No. CV 07 932

DR. ANTHONY GREENE; MARION   
EASLEY; ELLA WILLIAMS; SETH
GOODMAN; and, SEBASTIAN
CARILLO,                      

 Defendants.        

AMENDED ADDENDUM TO ORDER DATED SEPTEMBER 17, 2007 MAKING ORDER OF JANUARY 16, 2008 A FINAL ORDER

SUMMARY: This court entered an order dated September 17, 2007 styled "Final Order." However, based upon argument of counsel on November 14, 2007 this court entered an order setting aside the finality of the above referenced order in order to allow Plaintiffs to submit evidence on the issue of attorney fees - an issue presented by the Plaintiffs at the onset of this litigation but not addressed by the court.

After a review of argument of counsel and the law the court found that Plaintiffs were entitled to an attorneys' fee based upon the "Common Benefit Doctrine" and award counsel for Plaintiff Gladys T. Coleman attorney fees and costs by order dated January 16, 2008. The day thereafter counsel for Citizens For Better Schools and Ronald E. Jackson filed what the court considered to be a Rule 59 Motion seeking reconsideration and leave to file its request for attorney fees. Written submissions were thereafter entertained and a hearing held February 25, 2008. After a full consideration of the same the court finds that Plaintiff for Citizens For Better Schools likewise is entitled to attorney fees and costs. Thus, in its entirety, the final order after Rule 59 Reconsideration reads as follows:

I.  INTRODUCTION

This action was filed July 13, 2007 by the Plaintiffs to void the appointment by the Fairf ield School Board of Dr. Anthony Greene as permanent Superintendent of the Fairfield School System. Plaintiffs allege the specially called June 29,

2007 Fairfield School Board meeting during which the Board purported to approve the appointment of Dr. Greene violated the Board's own policies and the State's open meeting laws and as such was illegal as were all matters voted upon during said meeting.

More specifically, Plaintiffs allege, inter alia, that the Fairfield Board of Education violated its own policy when a specially called Board Meeting was held without the Board President's specific authorization. Plaintiffs also allege that insufficient meeting notice and posting was had by the Board, and that the notice was deficient because a preliminary agenda was not properly posted or alternatively, the posted notice gave no statement as to the reason and purpose of the specially called Board meeting.

An initial hearing was held July 23, 2007 during which the parties attempted to settle all issues. A second hearing was scheduled for August 2, 2007. At that hearing the parties agreed: (1) that the only issue to be submitted to the court was the propriety of the Board's action of voting Dr. Greene as permanent School Superintendent during the June 29, 2007 specially called meeting (i.e., all other items acted upon during that meeting would not be challenged) ; (2) that the matter would be submitted to the court on the written submissions of counsel; (3) that both the preliminary hearing mandated by Section 36-25A-9 and ultimate hearing on the merits mandated by Section 36-25A-

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9(c) would be combined; and, (4) that counsel for the Plaintiffs would be given an additional thirty (30) days (i.e., until September 4, 2007) to submit additional written responses to Defendant's Motion For Summary Judgment.

On August 29, 2007 Plaintiff Gladys T. Coleman filed her written submissions. On the same date Ollie Underwood, Peggy Mobley and Dr. Gayle Gear, plaintiffs in an action similar to the one at bar, sought permission to file an Amicus Brief - this request was granted.

On September 5, 2007 counsel for Plaintiff Citizens For Better Schools requested additional time to respond to the Amicus Brief and Plaintiff Gladys Coleman's submissions and on September 10, 2007 left a telephone message with court staff requesting until the end of the week (i.e., until September 14, 2007) to file its written submission - none was forthcoming.

II.  FINDINGS OF FACT

1. The Fairfield Board of Education (hereafter also referred to as "the School Board" or "the Board") is currently composed of Board President Dr. Barbara Lloyd; Vice-President Marion Easley; Secretary and Interim Superintendent Dr. Anthony C. Greene (who had been serving as the Interim Superintendent for a period of some two years); Sebastian Carrillo; Seth Goldman; and, Ella Williams. The Board's regularly scheduled meetings are held during the third Thursday of each month.

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called meeting.  Dr. Barbara Lloyd was under the belief that a decision had been made to hold the meeting on July 6, 2007.

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be discussed during the special board meeting.

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superintendent. Board Members Carrillo; Goldman and Williams voted in favor of the motion, and Board member Easley abstained from voting. Various other matters, including acceptance of the resignation of certain teachers and the declaration of the vacancies of certain other teachers were addressed during the meeting.

17. Some thirty to forty members of the public were in attendance during the specially called June 29, 2007 meeting.

III.  ANALYSIS AND CONCLUSION

Based upon the above facts the court finds that the Defendants violated not only the spirit but the letter of Section 36-25A-(b) (1) of the notice provision of the Open Meeting Act when it "failed to post the preliminary agenda on the bulletin board at a. place convenient to the public in the central administrative office of the board."

In so holding the court does not opine regarding the fact that the preliminary agenda prepared by Dr. Greene omitted the subject matter of the selection of a permanent superintendent for the Fairfield School System or the provision in the law that allows items not included on the printed agenda to be addressed.

The court simply holds that when school board members prior to a regularly or specially called meeting, discuss the fact that they want to decide the important matter of selecting a permanent school superintendent prior notice of that action item

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should appear on either the notice of the meeting or the preliminary agenda in order to give true meaning to the purpose of the Open Meeting Law.

The School Board's vote of June 29, 2007 appointing Dr. Greene permanent Fairfield School Superintendent is declared null and void. Effective July 1, 2007 Dr. Greene is restored to the position of Assistant Superintendent.

The court must impose a civil fine in accordance with Section 36-25A-(9) (g) - this provision of the law is mandatory and leaves the court with no discretion. The court wishes the law provided it with the discretion not to impose a civil fine in a situation like the one at bar. Public service on a school board is one of the most demanding and least appreciated ways one may serve his or her community. The court finds no ill motive on any of the Defendants' part - in fact, the court notes that they sought the legal advice of counsel and simply had a honest difference of interpretation of what was required - and because the facts of the case were submitted by written submissions, including the affidavits of Dr. Greene and Dr. Lloyd, the court must take Dr. Greene's statement that he forgot to put the action item of voting for a permanent superintendent on the preliminary agenda as fact.

The Court also notes that the law does not differentiate culpability. For instance, Dr. Greene forgot to put the action item of selecting a new superintendent on the

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preliminary agenda but all defendants who attended the June 29, 2007 specially called meeting are equally culpable under the law by their mere attendance.

Nevertheless, the court shall impose on each Defendant a $25.00 civil fine to be paid through the Office of the Circuit Clerk.

The Court makes no finding or opinion regarding the validity of School Board action taken after the June 29, 2007 specially called meeting.

IV.  ATTORNEY FEES

After a thorough review of argument of counsel, their briefs and the applicable law, the court concludes that Plaintiffs are entitled to a reasonable attorney fee under what is commonly known as the "common benefit doctrine." This is so despite the court's earlier finding of "no ill motive" on any of the defendants' part.

The common benefit herein is the ultimate holding in this court's order that

when school board members prior to a regularly or specially called meeting, discuss the fact that they want to decide the important matter of selecting a permanent school superintendent prior notice of that action item should appear on either the notice of the meeting or the preliminary agenda in order to give true meaning to the purpose of the Open Meeting Law.

Page 7/8 of this Order.

Had Plaintiffs not filed suit the application of the

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law as to the facts presented in this litigation would not have been pronounced for members of the Fairfield Board of Education to follow and for the citizens of Fairfield, Alabama to be made aware of.

In accordance with the Evidentiary Submission In Support Of Plaintiff Coleman's Application For Attorneys' Fees and Litigation Costs Plaintiff Coleman is awarded an attorney fee against Defendants in the amount of $16,940.00 plus costs of $893.85 and costs of court and Citizens For Better Schools is awarded an attorneys fee against Defendants in the amount of $11,100.00 plus costs of $900.76 and costs of court, the court determining that said attorney fees are reasonable under the circumstances.

Any requested relief not granted herein by the parties shall be deemed denied and any affirmative defenses asserted after entry of the order dated September 17, 2007 are denied as untimely.

Done and Ordered this 19th day of March, 2008.

/s  Eugene R. Verin

Circuit Judge