The counterclaim was filed in response to a lawsuit from the group seeking to overturn a decision by the local board to consolidate the county district's three high schools.
The citizens group claims the board violated the Open Meetings Act at a May 6, 2003, meeting when it voted 3-2 in favor of asking the state to waive certain requirements (a two-thirds majority of the local facilities planning committee) to allow the district to construct a consolidated high school, replacing Cawood, Cumberland and Evarts high schools.
According to the complaint filed in Harlan Circuit Court by Citizens for a Better and Equal Education, citizens were unable to hear the full discussion and vote on the item because only the board chairperson had a working microphone.
"At the heart of the Kentucky Open Meetings Act is that the citizens have a right to not only participate, but not be impeded in their observations of public deliberations," said Roy Silver, one of the plaintiffs named in the complaint. "At the heart of that was that during the May 6 meeting ... the public could not hear all the board members' comments because ... they were not adequately miked. ... The only person that you could really hear of the board members was the chair of the board."
In filing a counterclaim against the citizens group and the individuals, the board of education alleges the group's "improper purpose of using civil proceedings is designed to achieve a delay in funding" the board is scheduled to receive from the Kentucky Department of Education. The counterclaim states $4 million will be lost if the "Plaintiffs are allowed to continually delay the efforts of the Harlan County Board of Education in acquiring this funding."
The board denies the allegations that audience members couldn't hear the proceedings, noting in the counterclaim that "the meeting in question was moved to a location (Cawood High School) that was large enough to accommodate the size of crowd expected for the discussion and every attempt was made to ensure that each and every attendee could effectively observe and understand the discussions taking place and that the crowd was asked whether or not they could hear and no one complained of any condition of the meeting room."
In answering the original suit, the board also said "the audience was asked on several occasions whether anyone had trouble hearing the board's discussion and no complaints were made."
According to the board's answer to the lawsuit and the attached counterclaim, Plaintiff Roy Silver made a complaint to the Kentucky Attorney General, alleging the board violated the Kentucky Open Meetings Law because he was unable to hear the vote of board members on a proposed School District Facility Plan and a waiver request.
"The Plaintiff Silver knew at the time that he made the complaint to the AG's office that this complaint was not true as was evidenced by the fact that during the meeting Silver made no complaint that he could not hear the meeting, that he made no complaint of this nature to the Kentucky Department of Education when the KDE conducted hearings related to the same, but perhaps more importantly because the Plaintiff Silver came to the front of the meeting concerning the board members' vote when the vote was taken, making statements to the members of the board who had voted in favor of the plan. All of these actions indicate an improper purpose in making the complaint to the Kentucky Office of the Attorney General."
The counterclaim also states the the "motivating factor of the actions of the plaintiffs, and each of them, is an effort to delay implementation of the facilities plan, a part of which involves the closing of Cumberland and Evarts high schools."
The board argues that state funding will be lost if the citizens' group is successful with its lawsuit, endangering several schools projects, including a new high school, a new Wallins Elementary School and several school renovations.
Former school board chairman David Kennedy, also a plaintiff in the original suit, said more money would be available if the $4 million were lost.
"During my entire time on the school board, which was 12 years, there was a continuous offer of different amounts of money offered from the state," he said.
Harlan County Schools Superintendent Timothy W. Saylor referred questions on the lawsuit to the district's attorneys, Larry Bryson of London and Johnnie Turner of Harlan. Bryson, who is considered to be an expert in Kentucky school law, was recently employed by the board to assist Turner on issues surrounding the district's facilities plan.
The individuals who joined the Citizens for a Better and Equal Education in filing the lawsuit include Kennedy, Silver, Nancy McLain, Renee Napier, Jill Blevins, Ted Davis, Stephanie Davis, Phillip Ball, Tracy Ball, James White, Seth Napier, John Barrett, Mark Barrett, Michael Barrett, Sharon Kennedy, Earl Rogers, Britt Lewis, Donna Lewis, Bill Childress, Joanne Childress, Sidney Johnson, Phyllis McNabb, Florence Cohelia, Evelyn Philpot, Benny Coleman and Theresa Coleman.