October 12, 1993
by Dr. Doug Magann
[Editor's Note: This continues from the last installment on the "Cafeteria" funding bill and what went on behind the scene.]
The bill actually proposed an amendment to the Alabama Constitution which, if approved, would authorize the proposed tax levy in Mobile County. Normally, constitutional amendments must be approved on a statewide basis, but a prior amendment had created a special "commission" that could, under certain conditions, limit the vote to the county affected. Sometime during the following week, a decision was made to request the "Callahan Commission" to schedule a special referendum on the bill. This introduced even more problems into the scenario. The provisions of the "Callahan Amendment" require that the bill be approved in each municipality in the County in order to be approved at all. The chances of this happening were estimated to be between slim and none. There were also other constitutional problems involved with this new development. Nevertheless, it was "damn the torpedoes" time, and away they went.
During the days and weeks that followed, Campbell and I had several discussions on strategy about what, if anything, to do next. Andrews was involved in many of these, as was Fournier. Everyone seemed to be leaning toward U.S. Justice Department involvement. Campbell was of the opinion that once Justice took a look at it, it was dead because it diluted minority voting strength, violated the Birdie Mae Davis agreement, and several other "minor" concerns.
At the time, we thought that the Callahan Commission was required to submit it to Justice before it could actually be placed on the ballot. This proved to be incorrect. Then discussion turned to getting the NAACP or Dr. Guillard, former School Board member and President of the NAACP, as an individual, to challenge the bill. I did not like this because I was convinced that a challenge coming from that quarter would be divisive to the community along racial lines. I made a contact with a friend in Washington, D.C. who had been associated with the Justice Department in the past. He referred me to a law firm that had done much work in this area, and suggested that I have Campbell make the contact. I called Campbell and discovered that he knew the lawyers fairly well. He agreed to make the contact. I never heard anymore about it.
An ad hoc citizens' committee to support the Cafeteria Bill referendum was formed about this time, with Carolyn Akers (President of the Junior League) as the nominal chair. Actually, the committee efforts were being directed by Bill Yeager, a local advertising guru and favorite of certain political factions in the community. The meetings were held at the Chamber of Commerce on Friday mornings at 7:30 AM, and at various other times as needed. I was not invited to be part of the group.
I assigned Paul Sousa (Assistant Supt. for Facilities) as liaison to the committee, at the request of Andrews. In the beginning, Sousa faithfully reported the discussions as they occurred and shared his concerns and frustrations with me. I took the position that we would provide factual information to the committee and assist with any legitimate and lawful request made of us. I think everyone felt comfortable with that position. Yeager's plan was to make the campaign low key. This was consistent with Bronson's observation/dictum of not telling the people what was going on. A low key, no fanfare approach limited the opportunities for unwanted and unanswerable questions to arise.
Frankly, I think that Sousa got caught up in the "pep rally" atmosphere as the effort progressed. He was being worked on by a group of people who were, or could be, important in his life. I think this development fed the ambition of his wife. Mrs. Sousa seems to believe that she and her husband are the only people in the district who care about children or who have done anything to help the schools over the years. Both consider Murphy High School to be the epitome of excellence, primarily because of the academic tracking programs installed when they worked there. In her opinion, her husband's talents have been too long overlooked. She correctly saw her husband's involvement with the "power structure" as the opportunity it was. If he supported them, they might be inclined to support him and then the Sousas could run the school system. And, too, she was still upset at having been included in the budget reduction alternatives.
Andrews had, apparently, resigned herself to the campaign, but was allowing Bedsole and Windom to carry the ball in public (it was interesting that the other members of the Delegation were nowhere to be found). But during the last 2 or 3 weeks of the campaign, some meetings had to be held, particularly in the schools. Sousa was tapped to carry these off. He really had no choice at this point, and he had to make a positive presentation or humiliate himself in front of school faculties and parent groups. Sousa became a convert, and began to rationalize the glaring shortcomings of the bill.
He began to say things like: "Well, they (Bedsole, Windom, Yeager, et al.) say they can fix it after the election." You cannot fix a constitutional amendment except with another constitutional amendment. "Well," he would say, "they are going to do it with a resolution of intent." They would explain what they really meant the bill to do instead of what the bill actually said.
While this was crazy, he actually had me looking at it seriously for a couple of sections of the bill. I concluded that an "intent statement" might make two sections of the bill workable, even if they did not provide enough money for the expressed objectives. The other seven sections, however, could not be fixed in that manner unless everyone completely forsook the English language. The whole issue became moot when some members of the Delegation refused to sign the intent statement.
Sousa was the good soldier and tried to carry it off anyway. My impression of what happened next is just that: an impression. I think that the campaign directors sensed that things were not going well. Lillian Jackson and Austin Rainwaters, local community activists and property tax opponents, had appeared and they were organized. There was some panic inside the CBS (Committee for Better Schools) group and they put more pressure on Sousa to bring the school people into line. He began to make some inappropriate responses to the pressure. I am confident that Andrews was now applying the pressure she had to be feeling directly to Sousa. He began to call Principals and other staff and make inappropriate requests, and to even imply orders to them. I began to receive calls of concern from some of the more veteran administrators who knew they were being asked to do things that were clearly out-of-bounds.
During the last week of the campaign, Lillian Jackson threatened to lodge a lawsuit against the school system because one of the new principals had obviously overstepped the line and sent home promotional literature, done on school paper, etc. She called the State Superintendent in Montgomery, the local media, got on the talk shows, etc. The State Superintendent called my office and I instructed Tysowsky to send out my standard memo on the subject to "cover" everyone, but I told him to wait until Monday (the day before the election) in order to avoid jeopardizing chances of the referendum passing, however remote.
Actually, I was convinced that at least one part of the bill would pass, and was one of the more surprised people around when the results came in the following week. The referendum failed miserably. I would like to believe that the people of Mobile County saw through the sham they were being asked to approve, but I have since discovered that very few advocates even knew what they were supporting. The minority was voting in desperation, and the majority was voting against any new taxes--period. In retrospect, the outcome was not all that surprising in light of the fact that the Legislature convened the day of the referendum to consider new state taxes in order to avoid further proration of the General Fund. That development coupled with a 165 percent school property tax increase proposal was enough to kill it, even if no one understood what was being killed.
But understanding the bill was important then, and it is now because, sooner or later someone is going to try to do something similar again. Senate Bill 530, Act 92-274, proposed an amendment to the Alabama Constitution of 1901. In its original form, the proposition would have been subject to a statewide vote and would have carried 10 questions (whether or not to amend the Constitution, plus the nine specific millage questions). The Act was to have been referred to the U.S. Justice Department for pre-clearance due to the "multiple issue" language. (See 05/15/92 MP/R article: Funding Bill Needs Clearance.) Later I was told that the bill was not going to be referred. I do not know what happened and the question is moot now.
The Act was referred to the "Callahan Commission" (The Governor, The Lieutenant Governor, and The Secretary of State) in order to schedule a special referendum date and to restrict the vote to Mobile County. This was arranged by Bedsole and no one was quite sure what was going on, including the Governor's Office.
Section one of the Act would have created a nine member Mobile County Education Accountability Team appointed by the County Commission(3), the House Delegation(2), the Senate Delegation(2), and the School Board(2). The purpose of the team would have been to "assess efforts to improve education and progress in achieving the goals of the Mobile Public Schools' Strategic Plan."
Specifically, the team would have (1) monitored all expenditures authorized by the Constitutional Amendment, (2) monitored the implementation of the Strategic Plan, and (3) overseen the "work of similar committees established at individual schools." The Act further prescribed the membership of these school- based "Accountability Committees". The committees would have validated efforts in the schools to "achieve the goals established by the county accountability team." Apparently, the "County Accountability Team" would have set goals for the system as well as monitor the items set forth in the Act. This alone should have been cause for concern to any thoughtful person (if they had been informed about it). In effect, this Act would have turned control of the school system over to nine people who were not elected by the public (actually ten because the Team was to appoint an Executive Director), and who had no direct accountability to the public. The original version of the bill had the Chamber of Commerce and Mobile United appointing some of the members, and the School Board was not appointing any! The Team and the school committees were to be instituted if any of the nine propositions were approved.
Section 2 of the Act listed the nine proposals and prescribed how the additional revenues would be allocated and expended, if approved by a "majority of the qualified electors of the county who vote on the proposed increase(s)." The proposed increases were to be for ten years and the following purposes:
(1) plumbing, heating, air conditioning, and fire alarm systems, improvements and repairs; 5 mills; $85.0 million over 10 years.
(2) construction of classrooms to replace portables; 7 mills; $119.0 million over 10 years.
(3) construct, furnish and equip additional classrooms; 7 mills; $119.0 million over 10 years.
(4) library books; 1 mill; $17.0 million over 10 years.
(5) purchase and install computers; 3 mills; $51.0 million over ten years.
(6) construct and equip science laboratories; 2 mills; $34.0 million over ten years.
(7) improve student safety by installing and repairing lights, lock systems, security alarms and perimeter fencing; 1 mill; $17.0 million over ten years.
(8) new school buses; 1 mill; $17.0 million over ten years.
(9) general operation of the schools; 2 mills; $34.0 million over ten years.
If approved, the revenues from items 2 and 3 would have been "deposited in a trust fund in the county treasury to be expended for schools within the system with not less than one-half to be expended for schools outside the city limits of Mobile."
This provision flew directly in the face of the Birdie Mae Davis (BMD) Consent Decree which required that 60 percent of all renovation funds be applied to schools with a majority Black student body, or to schools designated for Magnet Programs, until all such schools had received needed renovation and air conditioning. This requirement was in addition to the renovation schedule known as Appendix I in the decree itself. I asked Phillip Russell (Sousa's assistant) to look at this issue in August. He concluded that the requirements of the decree could be met under the provisions of the bill, but he made some assumptions to arrive at that conclusion which were questionable.
First, he assumed that items 1 and 6 were the only ones dealing with "renovation". I doubted that the plaintiffs would have seen it that way, but I never raised the issue. Second, he assumed that we would "receive a favorable interpretation from the Legislature regarding how these funds could be spent."
This is a major point. Items 1,4,5,6,7,8, and 9 of the Act required that the revenues derived from these items be "expended for schools within the system to be distributed according to average daily attendance." (They were also to be deposited in the County Treasury.) No one, including the Legislature, can change the language of a Constitutional Amendment after it is approved by the people. The only way the language can be changed is through another Constitutional Amendment. I pointed this out to several people and they agreed that it was a "problem." All of the lawyers who looked at the Act agreed with me and they said so (in private). A court can interpret the language after approval, but everyone conceded that it was going to be hard to interpret away this particular passage without reinventing the English language. It was pretty specific.
If the revenues could not be distributed by any formula other than average daily attendance, two consequences were obvious: first, we would be in violation of BMD and, second, only about 13 percent of the rehab projects could be accomplished anyway, because the remaining schools would never accumulate enough money over the ten year period to do the required work.
Some people became concerned with this little "flaw" in the Act, after it was pointed out. The "flaw" had other implications. The remaining items under the average daily attendance formula produced equally bizarre consequences. Trying to provide library books, computers, lights, lock systems, school buses, etc. on the basis of average daily attendance (ADA) meant that money was to be spent on schools that did not even have buses, already had computers, had well stocked libraries, new lighting and security systems, etc.
Nick Holmes came up with a "solution" to the problem. He proposed that the Delegation sign a joint "resolution of intent" to clarify the meaning of the language. In effect, he reinvented the English language and added a few incredible spins to the wording. In a letter to Andrews of July 20, Holmes said this: "I enclose some suggested clarifications that may be needed. I do not know if these clarifications can be made by a resolution from the Mobile County Legislative Delegation, by judicial interpretation, or by an additional amendment. I suggest we consult with the Delegation and seek their help."
Holmes enclosed a five part "Suggested Resolution To Be Approved By The Mobile County Legislative Delegation." It was a beauty. He proposed that they declare the intent of the ADA language to mean "estimated average daily attendance after completion of the construction program." No one, and I mean no one, could explain how that was to be done. The program called for 17 new schools, the closing of some, the rezoning of some, etc. How anyone could estimate ADA for schools 10-12 years in advance smacked of "Alice going through the looking glass," again. I saw the proposed new formula as a means for letting the "Team" put the money where they wanted to. It does not take a lot of imagination to envision the perpetual turmoil such a formula would have subjected the community to for the next ten years.
His second and third proposals made sense, and were in line with suggestions we had made. They dealt with items 2 and 3 of the Act and broadened the language so that complete new schools could be constructed using those funds. The existing language spoke only of "replacement of portables" and "new classroom wings."
His fourth suggestion enlarged the intent of item 5 to include the purchase or construction of a facility to house the central computer. I do not know where this came from, but it did not address the problem with item 5. Item 5, if approved, would have generated about $51.0 million over the ten tear period for computers. At today's prices, that would have been enough to purchase a computer for every student in the system. We had estimated the total cost of bringing the system to state-of-the-art level at between $30 and $35 million. No one could responsibly spend $51.0 million on computers! I think Holmes knew that, and it might explain his fifth suggestion, in part.
The intent language was to say that "the School Board may, with prior approval of the Accountability Committee, reallocate funds from one category to another and from one campus to another, provided that the needs of the campus losing funds have been met, and the needs of the campus gaining funds have been established." One has only to think about that for a moment and to think about who was going to be on the Committee. This language would have stood the announced intent of the "Accountability Bill" on its head. I guarantee that the public would never have understood this intent "change," nor would it have been given the chance to understand it.
The Delegation (or the majority of it) did adopt a resolution incorporating the essence of suggestions 1,2,3, and 4. They further resolved to seek legislation to allow the voters to approve a method of re-allocating funds should excesses occur at any school or in any category (in other words, another Constitutional amendment). Apparently, even the Legislators could not defend some of Holmes' suggestions, and Senator Figures, Senator Lipscomb, and Representative Turner never signed the resolution at all.
In his letter to Andrews, Holmes also included a strong plea for a pay-as- you-go construction program. He argued that trying to do it all in a short period of time would drive up construction costs. There is some truth to this, but the argument is self-defeating for another reason, and this proved to be true.
The bonding approach is not only for financial reasons but, more importantly with large school projects, it is to place the proposal within the "window of imagination" of the people who must approve the undertaking. People have about a 6 to 12 month "window of imagination" for most things. We tend to live day to day and week to week. That is human nature. Occasionally, we are capable of imagining longer periods on certain issues. We can imagine the birth of a child, and focus on that temporarily. We can imagine and plan for college for a child, or a major purchase, if not too far off. But generally, we operate with a relatively short "window of imagination." Virtually no one was willing to even discuss this perspective. Of course, no one had any experience with a successful referendum either.
In my opinion, this was the fatal flaw of the Act. Because of the way it was structured, it was virtually impossible to tell any school community when its project would begin and be completed. Common sense said that some of the projects would not begin until years 6, 7, 8, 9, 10 or beyond. Those time frames exceed the "window", and people will not support them because they see little or no direct benefit for their children.
Holmes' pay-as-you-go proposal has a certain appeal to fiscal conservatives, although it is not what the community needs at this point in time, given the magnitude of the problem and the state of the economy. The School Board had proposed a 15 mill levy for 20 years, to be bonded. That alternative would have produced about $350.0 million at very favorable (at the time) interest rates, and would have allowed the virtual completion of the program in 5 years while putting a lot of people in the community to work immediately. A cynic might wonder if Holmes' proposal had anything to do with his company's workload ability, should the entire project crank up at one time.
His suggestion was moot anyway, because Bond Counsel would not opine on the bonding question due to the Callahan Commission involvement, thereby killing any hope of bonding any revenues that might have been derived from the Act, had it been approved.
Neither Holmes nor the Delegation ever addressed another very serious problem with the Act. Items 2 and 3 called for at least half of the funds to be expended outside the city limits of Mobile. The funds were to come in one year at a time. Annual expenditure requirements would have delayed every project and rendered some of them impossible at all. We suggested that the Delegation "reinterpret" that language to mean that the requirement applied to the total funding over the ten year period. This was never addressed.
There were other problems with the specific items in the Act. Item 6 dealt with science labs, and was based on the ADA formula. Elementary schools do not have science labs and yet they were to receive roughly half of the funds. Item 7 dealt with "student safety" and would have generated $17.0 million over the ten year period. We estimated that all of the lighting systems, all of the locks and security systems could have been replaced, and we would still have enough left over to buy fencing (the other part of the item) to stretch from Mobile to the Tennessee line. No one ever asked for input from school personnel about the needs when the Bill was being constructed. But then again, if you are omniscient, you do not need or want any help. You know what is best for the people, and they had better be thankful for what you give them, by God!
There were other, more serious, problems. The lawyers who had looked at the Act had reservations about the constitutionality of the thing, and they were convinced that it would not survive a challenge should it be approved at the polls. First, there was the "multiple issue" question. Constitutional amendments are supposed to contain only one issue per amendment. This one contained at least nine regardless of how it was counted. Second, the Act contained references to "those voting in the referendum" in some places but, in the implementing section, it required approval by "a majority of the qualified electors in the county", and did so several times. That was quite a different proposition, and I always wondered if this was deliberate ploy to have the legislation thrown out by the courts in the event that the measure passed at the polls.
By using the "Callahan Amendment" to set the referendum date, other complications and problems were introduced into the scenario. That Amendment contains conflicting language, also. At one point it talks about the "people" of the County having to approve the measure and, at others, the "voters" and the people "voting." But the most problematic aspect of the "Callahan Amendment" is the requirement that the Act be approved by each municipality in the County. This is so because of the "Lid Bill" which caps the ad valorum levies of each municipality and each local taxing authority. Had the Act, or any part of it, been approved countywide, it still would have failed if one of the municipalities had not approved it!
Some $3,838,002 in current revenues would have been lost to the various taxing authorities had all nine sections of the Act been approved (the school system would have lost $1,322,559, making a bad situation even worse). No one wanted to talk about this either, and I doubt that other elected officials were even aware of it.
There was also the small matter of what the public was being asked to do in the way of a tax increase. The Act, had it been approved in its entirety, would have increased the school taxes by 165 percent... in the middle of a recession... and it still would not have done the job! It did not take the opposition very long to figure the increase part of this out.
Finally, the Act did not address the operating budget problem of the District at all. The people, if not being led to believe, were being allowed to believe that, if they voted for the bill, all of the money problems of the system would be over. Nothing could have been farther from the truth, and one can imagine the confusion, distrust, and anger of the public when the next crisis occurred in a few months.
I would have concluded that the whole thing was conceived and put forth to destroy the Mobile Public School System, but I could never convince myself that the people behind it were that clever. I think that it was the product of arrogance and stupidity. Bronson published an editorial the day following my suspension in which he said:
"It was not his opposition alone that defeated the accountability school tax package last month, but it certainly contributed. He should have been grateful for any increased support for the schools."
That sums it up about as well as anything I could write.
As a postscript, had the Act been approved, it would have produced an accounting nightmare. No one could figure a way to keep all of the various funds and the formulas separated. This probably would not have been a school system concern since the money (and the interest on it) was to be handled by the County Treasurer, but it would have been of some concern to somebody...especially in light of the criminal penalty provisions in the Act for anyone who did not spend the money (or dispense it) as intended.
(Next Article in the Series)
October 12, 1993