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Public records reveal open meetings violation; board took action by emails

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Alamance-Burlington school board members apparently violated the state’s Open Meetings Law by effectively voting via email to approve increases in contracts for additional cleaning at three ABSS facilities following the discovery of mold late this summer.

That de-facto “vote” was revealed in documents that ABSS furnished last week in response to an October 20 public records request by The Alamance News, seeking to inspect all correspondence to, from, and among superintendent Dr. Dain Butler and each of the then-six sitting school board members.

Those increases were previously described to Alamance County’s commissioners and school board members as “Rough Order of Magnitude” (ROM) estimates, or open-ended agreements that authorized the mold remediation to be performed but carried no cap on the final costs.

ABSS last week furnished 2,140 pages of emails sent to and from the ABSS email account for then-vice chairman Ryan Bowden between September 11 and October 20, 2023.

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Among those thousands of pages – which were compiled in no particular order – was an email that Butler sent Bowden the morning of September 15, asking the school board’s vice chairman to obtain approval from a majority of school board members for ROM increases related to mold remediation at the ABSS Central Office, Cummings High School, and Western High School.

In his September 15 email to Bowden, the superintendent wrote, “Could you please reach out to your board members to seek majority approval?  Just like the others, this is time sensitive for this weekend.”

Bowden emailed four of the six board members, “Can you all please review.  Let me know if you are good with it.  Work will be done over the weekend.”

The only emailed response to Bowden’s inquiry that was ultimately included with the documents that ABSS furnished last week was a reply school board member Dr. Charles Parker, sent Bowden the morning of September 15, stating, “I agree.”

Bowden apparently got the four-member board majority “approval” Butler requested, though the documents that ABSS furnished to the newspaper included no responses from the three other board members Bowden emailed: Dan Ingle, Donna Westbrooks, and Chuck Marsh.  School board chairman Sandy Ellington-Graves was unavailable that day, September 15, due to previously-scheduled surgery, which is also apparently why Butler sought the vice chairman’s involvement, rather than the chairman’s.

The next email in the same thread (bearing the subject line “Re: ROM for Admin Building – ROM increases for Cummings HS and Western High School”) was sent by Butler, at 9:24 a.m. on September 15, instructing the mold remediation company to proceed with the work. “On behalf of my chair and vice chair and the Board, please move forward with the work,” Butler wrote.

Amanda Martin, a professor and supervising attorney for the First Amendment Clinic at Duke University and an expert in North Carolina’s Open Meetings and Public Records law, said that superintendent’s email, asking the school board’s vice chairman to obtain “majority approval” for the ROM increases, had in fact violated the state’s Open Meetings Law.

The preamble to that statute explicitly dictates: “Whereas the public bodies that administer the legislative, policy-making, quasi-judicial, administrative, and advisory functions of North Carolina and its political subdivisions exist solely to conduct the people’s business, it is the public policy of North Carolina that the hearings, deliberations, and actions of these bodies be conducted openly.”

“If approval is required, it needs to happen in an open meeting,” Martin said Tuesday morning in an interview with The Alamance News.

Martin also pointed to a provision in state law that allows public bodies to call a special meeting to deal with an emergency, which doesn’t have a requirement of 48 hours’ advance notice that normally applies to public meetings.  For instance, a board member could request to hold an emergency meeting later in the day, say at 2:00 p.m., “if it truly is an emergency,” Martin elaborated.

Martin also cited a 1993 decision by the Court of Appeals, Jacksonville Daily News Co. v. Onslow County Board of Education, in which the state’s second-highest court concluded that Onslow County school board members had violated the Open Meetings Law by approving a pay raise for themselves “in a proceeding other than a public meeting.”

Evidence and testimony given in that case and the subsequent trial revealed that, “Instead of considering such action at a public meeting, the chair telephoned all members of the Board but one to obtain their approval [of school board member raises made retroactive to the beginning of the fiscal year].

“Thus,” a three-judge panel for the appellate court concluded, “the record reflects that the adoption of retroactive pay raises was never considered at a public meeting…We find that such deliberations and actions are exactly the type of deliberations and actions that the General Assembly intended [to] be conducted openly at a public meeting.”

In a phone interview with The Alamance News, Butler outlined why he hadn’t instead asked Bowden on September 15 to poll his fellow board members about their availability to hold a special meeting in order to approve the ROMs.

 

ABSS: No Board approval or formal bidding required for ‘service contracts’

The newspaper also asked the superintendent to explain why he’d sought “majority approval” by the school board – via email – for the ROM increases, inasmuch as he and other ABSS administrators had repeatedly said no board approval was required for “service contracts,” such as those for the mold remediation performed late this summer at 33 ABSS facilities.

“We were in crisis mode,” Butler recalled in the interview Tuesday afternoon.  “Sandy being in surgery meant I needed to communicate with Mr. Bowden as vice chair as quickly as possible…We got through the finish line as quickly as we could and followed up with normal board approval.

“Our goal,” Butler elaborated, “was to get kids in school as soon as we could.  Under normal circumstances, we would follow the normal protocols.  These ROMs were coming in on a daily basis.  When it was time for a normal board meeting, we had all of these ROMs listed for formal board approval.”

School board members subsequently voted 6-0 to approve the ROM increases for the same facilities – Central Office, Cummings, and Western High School – at their September 25 meeting.

The ROM increases, which had been included as attachments to the September 15 email exchanges between Bowden, Butler, and the mold remediation contractor, consisted of the following:

  • $200,000 for removal and mold remediation in more than a dozen offices at the ABSS Central Office on Vaughn Road;
  • $30,000 to set up two containment rooms and remove drywall, chalkboards, and corkboards at Cummings High School;
  • $35,000 to wipe and HEPA-vacuum sills and walls in a shop classroom, storage closet, men’s bathroom, and golf cart room; set up containment areas; and remove asbestos-containing tile and insulation in parts of the same areas at Western High School.

According to school officials, hese so-called service contracts also did not require a formal public bidding process, based on a separate email exchange between Butler and Marsh that was included among the records that ABSS furnished to the newspaper last week.

In a September 25 email to the ABSS administration, along with Bowden and Ellington-Graves, Marsh had asked to see a comparison of bids submitted by the company that performed mold remediation at 31 ABSS facilities (Builder Services) versus “other companies” that Alamance County commissioner Craig Turner had apparently asked about during a series of discussions the two boards held during the last week of August.

“I think in the wake of social media being [inundated with posts] about teachers finding missing items along with drug paraphernalia…blunts being left behind in our schools, I’d like to be able to compare apples to apples,” Marsh wrote.  “Is that possible?”

“Service contracts do not require formal bids,” Butler wrote in a September 25 email response to Marsh.  “Even so, ABSS still allowed for businesses to bid on mold remediation work.  Sasser and Builder Services both placed bids for 5 schools.  Builder Services had the lower bid for each school.

“Also, the Administration had concerns that Sasser may not have been able to handle the scope of work required on our timeline,” Butler elaborated in his email to Marsh.  “You may recall that mold remediation projects at Andrews and Newlin that were handled by Sasser took up to 17 days to complete.  This timeline could have further delayed our start date [for the beginning of the 2023-24 school year] if the length of projects was replicated in additional schools needing remediation.”

The documents that ABSS furnished last week were in response to the second of two public records requests that The Alamance News filed with the school system in September and October.

The first request, filed September 11, sought communications and other documents related to the discovery of mold, sent to and from school board members and other ABSS officials from June 10 through the date of the request.  To date, ABSS has furnished a portion of the documents that the newspaper sought to inspect in its first public records request.

The second public records request was for all communications – including emails and text messages – to and from the six sitting school board members and the superintendent between September 11 and October 20.  So far, ABSS has furnished emails from three board members (Bowden, Marsh, and Parker) in response to the second public records request the newspaper filed October 20.

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