State Auditor Jim Zeigler filed a lawsuit May 1 against Attorney General Luther Strange and four members of the Baldwin County Board of Education (BCBE) for what he called a “misuse” of taxpayer funds in the Build Baldwin Now campaign for higher property taxes.
Last week, the school board submitted a request asking permission from Strange to use public funds to defend its members in court.
In a special meeting May 13 at its satellite office in Loxley, the school board voted 7-0 to allow BCBE attorney Scotty Lewis to request an opinion from Strange on whether the school board can use public funds to pay expenses in the defense of Superintendent Robbie Owen and members of the board who were named in Zeigler’s lawsuit. Strange, school board President Norman Moore, Owen and board members David Tarwater, Angie Swiger and Shannon Cauley are each named as defendants.
The suit lists Zeigler, a Mobile County resident, and Baldwin County residents David Peterson and Charles L. McMinn as plaintiffs. The plaintiffs are represented by attorneys Julian McPhillips and Chase Estes of Montgomery-based firm McPhillips Shinbau, LLP. On Friday Zeigler said Strange should not be allowed to file an opinion on a lawsuit in which he is also a defendant. Zeigler plans to file an objection if Strange issues an opinion in response to the BCBE request.
“Since it was this Strange opinion that caused this issue, it would be a conflict to have him or his staff issue another erroneous opinion that taxpayer funds can be used to defend individuals who misspent taxpayer money,” Zeigler said. “We will prove that he issued an erroneous opinion saying it was legal for the school board to spend taxpayer funds in a campaign for a tax increase.”
BCBE officials would not speak to specifics of the lawsuit or the board’s request after the meeting May 13. Communications Director Terry Wilhite said Thursday the board does not have a timetable for receiving an answer from the attorney general’s office.
“We hope to receive a response from the attorney general’s office soon, but there’s no way to estimate when we might get an answer,” Wilhite said.
There are two parts to Zeigler’s lawsuit, which was filed in Montgomery County and assigned to Montgomery County Circuit Judge Greg Griffin. The first seeks a declaratory judgment against Strange’s 2014 opinion, which said it was legal for the school board to use taxpayer funds in a political campaign.
If the declaratory judgment is issued, the lawsuit also seeks restitution of the approximately $250,000 spent by the board on the pro-tax campaign.
Zeigler released a statement Thursday morning saying the BCBE’s request is an act of “political arrogance.”
“Taxpayer money is to be used for operations of the school system, not for political campaigning and not to defend lawsuits against individual officials for violating the law,” he said. “They are asking the attorney general’s opinion when the attorney general is himself a defendant in the lawsuit.”
Before the vote, board members David Cox and Tony Myrick, who are not named in Zeigler’s lawsuit, asked how this opinion would differ from previous attorney general opinions on the issue.
“We are doing this out of prudence,” Lewis said. “We just want to get an updated opinion.”
Zeigler’s lawsuit alleges that Strange relied on a 2003 Attorney General’s opinion saying it is OK to use taxpayer funds in political campaigns, when a 2010 law bars local school boards from doing just that.
Board members Cecil Christenberry, Myrick and Cox are not named in the lawsuit.
Approved minutes from the Nov. 13, 2014, meeting show that Moore, Swiger, Cox, Tarwater, Cauley and former members Elmer McDaniel and Bob Callahan Jr. were present when the board approved a resolution authorizing Owen to “take all appropriate steps necessary, including the use of board personnel, property and resources, to educate the voters of Baldwin County and to promote passage of ad valorem measures.” The minutes show that Cox was the only member to vote “no” on the resolution.
In March, voters rejected the proposed 8-mill property tax increase the school board said would have funded a 10-year, $350 million capital campaign that included building new elementary schools in Daphne, Gulf Shores, Bay Minette and Spanish Fort as well as a new Gulf Shores High School. The BCBE also said the funds would potentially help create a new feeder pattern in the Belforest community and Spanish Fort’s “Golden Triangle.”
Further, voters rejected the renewal of several existing property taxes and left the county short of the 10 mills it needs to receive state funding.
Even though most of Baldwin County’s political leaders supported the tax increases through city council resolutions, the residents rejected the new taxes in every municipality.
More than 80 percent of voters in Bay Minette and Robertsdale rejected the measure. Residents in Elberta rejected the new taxes 78 percent to 22 percent, and in Foley the proposals failed 75 percent to 25 percent. The proposal came closest to passing in Spanish Fort, where voters defeated the measure 54 percent to 46 percent. Voters in Fairhope, Daphne, Gulf Shores and Orange Beach also defeated the new taxes by a wide margin.
At his May 4 press conference in Loxley, Zeigler said the issue was no longer just a Baldwin County issue, with other tax referendums popping up in Auburn, Muscle Shoals and Lawrence County.
“Over the next four years, there could be as many as 30 counties with referendums regarding school boards or county commissions,” Zeigler said. “It is important we get a ruling because this is no longer a Baldwin issue. This is an Alabama issue. We need the guidance of this declaratory judgment in all 67 counties.”