By JOHN HOFHEIMER
Leader staff writer
The two Pulaski County Special School District employee unions will appeal Pulaski County Circuit Judge Mary McGowan’s Wednesday ruling releasing state Education Commissioner Tom Kimbrell and the Arkansas Department of Education as defendants in a lawsuit to restore many elements of their contracts.
McGowan’s ruling would leave the school district, its acting Superintendent Jerry Guess and members of the personnel policy committees as defendants, according to Clayton Blackstock, their attorney.
The question now is whether the Pulaski Association of Classroom Teachers and the Pulaski Association of Support Staff should appeal this aspect of the case before proceeding with the trial or to proceed with the suit and appeal later, he said.
McGowan found that Kimbrell and the state are protected by sovereign immunity from the suit.
“We think the ruling was correct as to ADE and the state,” said PCSSD attorney Sam Jones. “What happens beyond that gets kind of murky.”
Jones said the ball was in Blackstock’s court, but that it was likely that attorneys for the two sides would confer before the decision was made.
“They can approach the circuit court for an order allowing an immediate appeal,” he said.
The state Education Department found the district to be in fiscal distress March 30, 2011.
The fiscal distress statutes provide the ADE authority to identify a district as being in fiscal distress and authorizes a number of actions, including the firing of the superintendent, dismissal of the school board and to “evaluate and make [binding] recommendations to the district superintendent regarding staffing of the school district and fiscal practices of the school district.”
McGowan ruled that Kimbrell acted in his capacity of commissioner of the Department of Education and thus suits against him and the department are barred by the doctrine of sovereign immunity.
According to the judge, “the ADE and Commissioner Kimbrell argue that all of the decisions are authorized by statute and are being made by an executive branch agency of the state. Therefore, the Plaintiff’s Claims are barred by sovereign immunity.”
The unions argued that parts of the professional negotiated agreement — such as teacher evaluation systems — don’t cost money to implement.
“The remedy for school districts who find themselves in fiscal distress is extreme,” McGowan wrote. “It is basically a takeover by the state. Here the teachers and support staff will bear a heavy burden in getting the school district back into fiscal health. It is unfortunate and unfair that the teachers and support staff did not have the responsibility for making the decisions that led to the fiscal distress, but will suffer because of those decisions.
“However, in this case, there is no evidence of any illegal, unconstitutional, ultra vires (beyond the power), in bad faith or arbitrary action on behalf of the states,” she concluded.
The district’s main fiscal problem, which must be corrected by next June, is its declining legal fund balance. Guess has cut $11 million from the annual budget and projects a carry over of about $14.5 million at the end of this school year.
He and John Walker, attorney for the Joshua Interveners in the 20-year-old school desegregation case, just negotiated Walker’s fees down to $875,000 from $3 million, according to Guess.
