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Murphy – Cherokee County Schools is lawyering up over its favored school consolidation plan.
K. Dean Shatley II of the Campbell Shatley PLLC law firm in Asheville sent a letter to Cherokee County attorney Darryl Brown on Sept. 3 “to address the county’s obligations regarding school capital improvements under Chapter 115C of the North Carolina General Statutes, as well as the Board of Education’s authority to make decisions concerning the type of capital improvements.”
Shatley asked that the board of commissioners add discussion of the school plan at its next meeting, which is Monday.
Brown replied to Shatley’s letter on Sept. 5, saying the “Board of Commissioners has authorized me to clarify the distinct and shared responsibilities of the Board of Education and the County in this matter.”
The school board wants to consolidate elementary schools in Martins Creek, Murphy and Peachtree, along with Murphy Middle School, and seek a $52 million lottery-funded state grant to pay for it. The plan would be a net decrease of three campuses.
Instead, the board of commissioners wants the school district to build a new Murphy High School neighboring the Cherokee County Schools of Innovation and Tri-County Community College in Peachtree. The plan would not change the number of campuses in the school district, and in the short term would result in one additional campus until the old Murphy High campus gets sorted out.
Neither side has been willing to back down.
The county’s response
Brown’s response to Shatley’s letter was approved on a 4-1 poll of the board. Commissioner Ben Adams opposed responding to the letter.
“At present, the board of education has offered only an idea, not a plan. The board failed to submit a Capital Outlay request on time, rendering the current grant proposal moot. Without details, the commissioners cannot in good faith approve a grant application that could commit the county to unknown, and possibly unsustainable, costs. The local match for this grant proposal alone may require millions of dollars in county funds, with additional expenses for land, furnishings, fixtures and equipment still undefined,” he said.
“The Local Government Budget and Fiscal Control Act prohibits the county from issuing blank checks, and no exception can be made here. Where does this leave us? The board of commissioners is requesting the information it is legally entitled to review before making a sound fiscal decision. This is not about resisting educational priorities; it is about protecting taxpayers and complying with applicable laws. Given current timelines, it is doubtful the Board of Education can supply the necessary information in time for this grant cycle, and it is too late to request capital outlay funding.
“Suppose the board of education wishes to seek additional revenue independently,” Brown added. “In that case, it may petition under Chapter 115C, Article 36, to request a voter referendum for a supplemental school tax that would increase the county property tax millage rate by up to an additional 50 cents per $100 in value. Is the Board of Education willing to propose higher property taxes? That is a decision the taxpayers should make for themselves.”
The school board did not bring up its lawyer’s letter at the board meeting Thursday. Brown’s response was sent a day later.
However, school board members Arnold Mathews and Shannon Raper defended the pre-kindergarten through eighth-grade Murphy consolidation.
Mathews said the school board needs support from commissioners. Raper, the school board chair, said the board’s 7-0 vote for the consolidation plan shows members’ commitment.
“We can’t do anything without a signature from the board (of commissioners),” she said.
Raper said she would like a better working relationship with commissioners, but added that school board members “really do know what’s best.”
School board’s version
Based on informal discussions between a member of the school board and two county commissioners, Shatley said he understands that two commissioners requested additional information about the legal framework regarding the division of responsibility for school capital improvements. The school board asked Shatley to provide a synopsis of the legal context of school construction and finance.
The board of commissioners has been hesitant in approving the grant application for the project and has decided not to address the matter at the last two meetings.
Adams and Commissioner Mark Stiles wanted to hear what school board representatives have to say about the plans, but were outvoted by commissioners Dan Eichenbaum, Cal Stiles and Alan Bryant at the board’s August meeting.
Chapter 115C establishes the framework for the funding and administration of public schools in North Carolina, and the statutes draw a clear line between the divided responsibilities of the county and those of the board of education, Shatley said.
“For example, N.C.G.S. §§115C-408(b), 115C-426(f), 115C-521(b) obligate counties to provide sufficient funding to meet the capital outlay needs of the local school administrative unit, including acquiring land, constructing new facilities, enlarging or improving existing facilities, and furnishing and equipping school plants,” he said.
“In contrast, N.C.G.S. §115C-521(c) provides: ‘the building of all new school buildings and the repairing of all old school buildings shall be under the control and direction of, and by contract with, the board of education for which the building and repairing is done.’”
While it is a local board of education’s responsibility to oversee the construction of new buildings and a county’s responsibility to provide the funds necessary to do so, a county’s control over the expenditure of funds for school buildings should “not be construed so as to interfere with the exclusive control of the schools vested in the county board of education …” Shatley added.
“Simply, the board is vested with the authority to determine the specific types of capital improvements required to meet the needs of the school system,” he said. “It is not the county’s duty or obligation to approve the plans themselves, rather it is the county’s duty only to provide the necessary funds. Once the county has provided the funding, the board retains exclusive control over the execution of the plans for capital improvements.”
The division of responsibilities ensures that the educational needs of the community are met, while maintaining the proper allocation of authority between the county and the board, he said.
Shatley said the school board is not asking the county to fund this entire project, as it is the board’s intent to seek state grant funds that will provide up to $52 million. Although a 5% local match is required, this grant will take a significant burden off the county and local taxpayers, and will provide the opportunity to build a new school that will serve the community for decades.
“We trust that the county will fulfill its statutory obligations in a timely and collaborative manner by approving the grant application and agreeing to provide the necessary matching funds. On behalf of the Board of Education, I request this matter be addressed by the commissioners at its next meeting,” he said.
County board’s version
“It is clear that the Cherokee County Board of Education wants to construct a pre-K through eighth-grade school in the Murphy area. I am also aware of their desire to apply for a grant that would provide up to $52 million to build such a facility,” Brown, the county attorney, responded. “You correctly noted that the county has been hesitant to approve the grant application for the project. Rest assured, this hesitation is not without reason.
“You have cited the venerated case of Atkins vs. McAden, 229 N.C. 752 (1949), but omitted its primary holding:
“The county board of education and the school commissioners or trustees of an administrative unit are charged with the responsibility of building all new schoolhouses and repairing the old ones in their respective administrative units. However, the board of county commissioners is charged with the duty to determine what expenditures shall be made for the erection, repair, and equipment of school buildings in the respective administrative units in the county.”
Brown said this principle is reaffirmed in Parker vs. Anson Co., 237 N.C. 78 (1953):
“The right of the board of commissioners to determine what expenditures shall be made arises when a proposal for the expenditure of funds for school facilities is made by the board of education. Having determined that question and having provided the funds it deems necessary, its jurisdiction ends, and the authority to execute the plan of enlargement or improvement reverts to the board of education.”
In short, Brown said, the board of education may propose projects, but the county must first decide what is financially feasible before any plan can move forward.
“The statutes confirm this division of responsibility. N.C.G.S. §115C-429 provides:
“(b) The board of county commissioners shall complete its action on the school budget on or before July 1, or such later date as may be agreeable to the board of education. The commissioners shall determine the amount of county revenues to be appropriated in the county budget ordinance to the local school administrative unit for the budget year. The board of county commissioners may, in its discretion, allocate part or all of its appropriation by purpose, function, or project as defined in the uniform budget format.
“(c) The board of county commissioners shall have full authority to call for, and the board of education shall have the duty to make
available to the board of county commissioners, upon request, all books, records, audit reports, and other information bearing on the financial operation of the local school administrative unit.”
No fund for construction
N.C.G.S. §115C-426 requires school budgets to include three separate funds: State Public School Fund, Local Current Expense Fund and Capital Outlay Fund, Brown said.
“Yet, the board of education’s latest request to the county only included Local Current Expenses. No Capital Outlay request – the fund for construction – was submitted,” Brown said. “Should Cherokee County Schools wish to make a construction funding request in the next county budget cycle, such would be duly considered, provided supporting information as cited in 115C-429(c).”
The law is clear, Brown said. “The board of education sets priorities, but the county commission decides what is financially feasible. As part of this responsibility and as outlined by N.C.G.S. §115C-429, the board of commissioners has the duty to obtain ‘all books, records, audit reports, and other information bearing on the financial operation of the local school administrative unit.’ This means reviewing details – including proposed building locations, construction plans, cost estimates, staffing impacts, etc.
“If school consolidation is under consideration, the board may also want evidence of a public hearing as mandated under N.C.G.S. §115C-72,” Brown said. “The community deserves to be heard before any decision to close or consolidate schools is finalized. Anything less would be a disservice to taxpayers and a failure of the board of commissioners to protect public funds.
“Put plainly, commissioners cannot approve a project that could commit taxpayers to unknown costs, and the board of education lacks the authority to dictate county appropriations,” Brown wrote.
“The statutory scheme of checks and balances provides for fiscally responsible use of taxpayer dollars to construct and maintain needed facilities. The courts have long recognized this balance.”
In Wilson County Board of Education vs. Wilson County Board of Commissioners, 32 N.C. App. 13 (1977), the court stated, “The board of commissioners are the representatives of the taxpayers in levying the tax, collecting the revenue therefrom, and spending it – all in the manner which will best suit the needs and interests of all the taxpayers. One of their duties is to provide the funds necessary to operate the public schools for nine months, but only such funds as are needed for the economical administration of the schools.
“They can only fulfill their duty to the taxpayers by considering closely all budgets presented to them as requests for funds. The statute requires the itemization of the budget requests, and we think the General Assembly intended that each item be considered by the county commissioners, regardless of whether additional tax levy is necessary.”