Oakland County Circuit Judge John J. McDonald dismissed Tony Miller’s lawsuit against Clarkston schools Superintendent Al Roberts last week, but Miller’s attorney said Monday the fight is not over.
“The fat lady hasn’t sung yet,” Arthur Weiss said, noting several possible responses, including a new proposal to the school board or filing a motion to reconsider.
In McDonald’s mind, however, the issue was simple at the Wednesday, Sept. 3 evidentiary hearing.
“Does the school board and the superintendent have the discretion to hire? That to me is the only question,” McDonald said.
Miller, who was elected to the school board in June but wanted to continue his work with the Clarkston High School football coaching staff, filed the lawsuit after Roberts said Miller could not hold both positions because of conflict of interest.
As long as the board did not discriminate against Miller because of issues such as age, race and sex, the judge agreed that the school board and superintendent had the discretionary authority to make the decision.
“When Mr. Miller was elected to the board, the district chose not to offer him a coaching position.,” attorney George Butler said, referring to powers conferred by the Michigan School Code. “This is a decision the school board delegates to the superintendent. He exercised that authority in declining to offer Mr. Miller a position for this particular year and for any period of time he will be on the board.”
“I’m not a board of education, and I’m not going to pretend to be one,” McDonald said. “I’m not going to overrule the board.”
The courtroom argument was a change in strategy for school officials, who publicly have defended the action based primarily on the state’s Incompatible Public Offices Act. Miller’s lawsuit was based, in part, on a Michigan Supreme Court decision overruling a court case cited by Butler as supporting the district’s position.
Both inside and outside the courtroom, Weiss criticized the district’s legal strategy, referring especially to an Aug. 28 e-mail from Roberts to district staff in which he said, “I have a duty as superintendent to uphold the law.”
“He wrapped himself up in the statute,” Weiss said in court. “Now he comes into court and his attorney said it didn’t have anything to do with the statute. That is a total change of heart. Now they come into court and say it’s simply discretionary.
“They have sold the public a bill of goods,” Weiss said outside the courtroom. “If that isn’t a violation of the public trust and every duty and oath that he took to be a superintendent, then I don’t know what is.”
Open court proceedings were delayed by several in-chambers discussions. When court eventually convened, the legal arguments took only a few minutes.
“If the board disagrees with the actions taken by the superintendent, couldn’t the board overrule the superintendent?” McDonald asked Weiss. “Your first avenue of remedy is to go to the board and ask the board to reconsider. Don’t come to the court.”
“I think the judge’s objective was to spare as many feelings as possible,” Butler later said of the meeting in chambers. “It became evident that the court felt the case was not properly before him. It is not the role of the court to make a decision in the case. There was nothing illegal or improper or untoward in the case.”
At the school administration’s press conference Thursday, Sept. 4, Butler said the legal victory was based on more than the discretionary powers argument.
Papers filed in the case “are much more detail and go into much more depth than could ever be discussed in the context of a hearing,” he said. He declined to elaborate, but said the papers are public record and available for review at the county courthouse.
Weiss said Monday there had been an “overture” from a school official outside the courtroom and “We have made a proposal” for a liaison between the school board and the athletic department.
Weiss said he will wait “a couple of days” for a school district response before deciding his next legal step.
The report of a new proposal seems to contradict what Butler said at the Sept. 4 press conference.
“For us there is no next step,” Butler said. “The court concluded that our legal position was the correct one.”