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November 9, 1993

The Divorce Proceeding

by Dr. Doug Magann

[Editor's note: This is the tenth in a series on the Mobile County Public School System written by former school superintendent Dr. Doug Magann.]

I received a lot of advice during immediately following my suspension. People who I had never met called to suggest attorneys and give support. Some apologized for their community. Some simply shared their anger about the whole mess. One name kept coming up consistently: Billy Kimbrough.

I did not know Kimbrough, but he apparently had a considerable reputation in town. I knew that I did not want an attorney who was obviously connected to the "power structure" because I would always have had questions about his/her loyalty. When I mentioned Kimbrough to a close friend of mine who knew us both, she grinned and said that she thought that I would like him because "we had a lot in common." As I got to know him, I was never quite sure what she meant or whether or not the comment was intended as a compliment.

William (Billy) Kimbrough is not a native of Mobile. He hails from Thomasville, Alabama and had been in Mobile for about 30 years when I met him. He had worked as an Assistant United States Attorney during the Kennedy/Johnson years and had served as the U.S. Attorney under the Carter administration. He had been "politically incorrect" for 12 years before we met and had been in private practice since 1981.

Kimbrough is an intelligent man who is loud, assertive, aggressive, competitive, and intensely proud. He also has as much or more integrity as anyone I have ever known. He has a keen sense of humor, including the ability to laugh at himself. He can be brutally blunt, and show genuine affection and compassion within the space of two heartbeats. And, he is an excellent lawyer who has an almost primitive passion for justice. I liked him.

Kimbrough had a certain familiarity with Mobile and the people who were involved in this situation, but he was relatively independent of them. Unfortunately, for me, his knowledge of school matters was somewhat limited and I knew that I was going to be spending a lot of time providing him with background. What I did not know was that he had a partner who operated out of an office in Chatom, Alabama (wherever that was) who was a school board attorney, and who had been practicing for a long time in that area.

The only way to adequately describe Edward Turner is to say that he is an "experience." Some refer to him as a "character," but that description really does not do him total justice. He is a cross between Senator Sam Erwin (of Watergate fame) and Matlock. Turner is a rough hewned country lawyer with an incredible legal mind grounded in the basics. He and Kimbrough constitute the legal odd couple in many ways. But they have a strong friendship that is built upon a foundation of mutual respect which becomes apparent to anyone who is around them for 30 minutes. Kimbrough refers to them as the "L and L team": loud and logical. To my surprise, they had worked only one other case together in the 8 years of their partnership, and that had been in the very beginning. As it turned out, inadvertently I had hired two outstanding lawyers.

Kimbrough and I began to work together on a daily basis almost immediately. Much of the work that lawyers do in such situations, at least in the beginning, is somewhat akin to grief counseling. That is followed by, what I call, reality therapy. He pointed out again and again that this was a political situation rather than a normal termination proceeding. We had many of these conversations during the first two weeks of our relationship because we could not respond to charges that had yet to be made. Kimbrough was very patient with me and allowed me to vent my frustrations freely. While I tried not to monopolize his time, I know that he had other demands which he juggled adroitly.

The charges finally came on October 22nd in a letter signed by Jeanne Andrews. They were ludicrous. I took a copy to Kimbrough and watched him go into orbit as he read them. I think he was a little embarrassed for his adopted community. Nevertheless, this was going to be a long, agonizing process, and we both knew it.

The next few weeks were spent making routine legal maneuvers, doing legal research on various issues, and developing background information on each of the 43 "charges" for my team of lawyers. Turner carried out the research function from his remote state-of-the-art headquarters and burned up the fax machines in Chatom and Mobile. Kimbrough spit out letters to the Board requesting additional information and challenging the proceedings themselves. I sat at my word processor and cranked out background.

Turner found an obscure local act dealing with the Mobile School Board and its Superintendent. The Act dated back to 1876 and was intended to address a situation quite different than the one we confronted, but it had never been repealed. At the time it was enacted, the board had nine members and the law required a 2/3 majority vote of the Board in order to remove the Superintendent. Turner noted that 3 out of 5 was not a 2/3 majority and he felt that the Board did not have the votes to terminate my contract, if Mitchell and Fournier refused to go along. While this was an interesting concept, I never believed that his interpretation would hold up under a court review. Still, it was something to throw on the table and I had to admire his research abilities.

Kimbrough and Turner raised some fundamental due process questions in connection with the proposed termination hearing. How, they asked, can a fair hearing be possible in front of a tribunal composed of one's accusers? Further, who was making the charges? The Board had never voted on the charges. Andrews had signed the letter. Was she the one making the charges? And, if so, how could she be part of the tribunal that was to hear them? These questions were raised with the Board and its attorneys, and ignored.

During her re-election campaign, Andrews had made public comments to the effect that I was guilty of all of the charges she had leveled and that she "had simply made a mistake in voting to hire me" 15 months before. Hardly the words of an impartial juror. Warren had announced to an employee of the system that "if Magann can prove his innocence, then so be it" -- an interesting interpretation of the most fundamental precept in our system. But these statements, and others, are reflective of the mentality that governs the school system.

When the hearing actually began on December 14, it was described as "a three ring circus without a ringmaster." And it was. Bob Campbell, Board Attorney, was to preside rather than Chairman Andrews. James Wood, Campbell's former partner, had been employed to "prosecute the case" and the Board was to be the impartial tribunal, in spite of Kimbrough's objections. "Hearsay" evidence was to be admissible, and the Board members would be allowed to ask questions of witnesses. We could call Board members to the stand, but they did not have to come.

I had declared the hearing open to the public. That decision visibly upset several Board members and their attorneys. This was obviously not in the script and was going to complicate what they had in mind. Wood invoked "the rule." The rule is that witnesses cannot be present during the proceeding except when they are testifying. In other words, they are not allowed to hear what other witnesses say, except as their testimony is reported in the media.

We really did not care since their witnesses obviously had been discussing their testimony for months. But his decision had one interesting side effect which neither Wood nor Andrews had anticipated. Bill Hanebuth, director of the Mobile County Education Association (MCEA), was called by the Board early in the proceeding. He and Andrews thought that he would be allowed to remain after his testimony, but he was also on our witness list and Campbell ruled that he would have to leave. This upset both Hanebuth and Andrews, who relies on him to direct her from the audience and counsel with her after meetings.

Wood proceeded to call 13 of the 28 witnesses he had told us he intended to call. Those actually called included the following: Richard Dukes (the private accountant hired to "secure the books"), Hanebuth, Dennis Day (a teacher in the gifted program at Murphy High School), Greg Stein (attorney for the MCEA), Representative Taylor Harper, Senators Bedsole and Windom, Becky Pettis (a special education resource teacher and Warren's sister-in-law), Regina Smith (a special education resource teacher), former Superintendent Billy Salter, State Superintendent Wayne Teague, Debra Petry and Kim Depew (two parents from O'Rourke school who had spent most of the year trying to affect the removal of the principal).

Most of those who were not called were the ones with substantive knowledge about the "charges." That list included: Ken Lambert (Treasurer of the school system), Charles Ratcliffe (Associate Superintendent for Business Services), Leo Brown (Director of the Chapter 1 Program), Otis Brunson (Assistant Superintendent for Human Resources), Paul Sousa (Acting Superintendent), Linda Sparkman (Principal of Murphy High School), Jimmy Knight (Assistant Superintendent for Student Services), four reporters from the Mobile Press/Register, Campbell's mother-in law, Paul Jeff Martin (a teacher at Murphy and husband of the President of MCEA), and Elaine Klotz (Coordinator of the Adopt-a-School program).

Of the 13 who actually testified, five became our witnesses on the stand. That is, their testimonies refuted the "charges" we were there to defend. Dukes' testimony may have been the most damning, and Wood led off with him. Dukes testified that nothing inappropriate had occurred with regard to financial matters in the school system and that what he had been asked to review was routine in nature. Adams appeared to be shaken by Dukes' testimony. Kimbrough was pleased because his testimony affirmed what he had been telling me all along: Dukes was an honest man who would not twist the truth for any reason.

Wood followed with Hanebuth, Day, and Stein. Hanebuth testified that I never answered his letters and that I generally ignored him. These assertions were true, but they had nothing to do with the "charges." Under cross examination, Hanebuth admitted that virtually no one answered the letters he sent them. We concluded that he was upset because no one would agree to be his pen pal. Stein recounted the Paul Jeff Martin termination case from his perspective (representing MCEA and Martin). His testimony was primarily factual and, again, had nothing to do with the "charges."

Harper, Bedsole and Windom testified that they did not like me. Again, nothing to do with the "charges."

As the hearing continued and Kimbrough heard the testimony of Wood's witnesses, he repeatedly asked me: Where did the charges come from? Who made them? We spent several hours one evening pursuing those questions out of pure curiosity and concluded that most must have come from Hanebuth, with a few thrown in by Andrews and Sousa.

We were able to present two witnesses out of turn during the third full day because Wood was waiting on Superintendent Teague to arrive from Montgomery. We put James Bennett and Thomas McConnell on the stand. These were the two men who had provided technical assistance to the district during the first few months of 1992. One of the charges alleged that I had allowed them to work beyond the period authorized by the Board. Both men testified that the Board, and particularly Andrews, was aware of their activities, that they had been in several meetings with Board members during the time in question, and that Andrews had even asked McConnell to accompany her to a meeting at the Chamber of Commerce and make a presentation about the work he was doing. In fact, the Chamber had written him a letter thanking him (and Andrews) for the presentation, which he produced during the hearing.

McConnell also provided two of the lighter moments during the proceeding. Wood tried to assert that Andrews thought that he and Bennett were driving 300 miles apiece to "drop in" and pay three-day social calls on the Superintendent. McConnell found that to be as absurd as everyone else in the room. Wood also tried to imply that McConnell and Bennett were involved in some kind of partnership arrangement that had been kept from the Board. Apparently, he was trying to suggest that I was involved in it somehow. He asked McConnell if there were such a partnership and he answered "no." Wood continued to press the issue, finally asking: "Just what is your relationship with Mr. Bennett?" McConnell thought for a minute and said: " It's nothing special. We are just a couple of heterosexual, over 60, white males who occasionally work together." Wood surrendered, and we adjourned for the day.

Superintendent Teague had arrived and testified between Bennett and McConnell. Teague's testimony was not what Wood was looking for either. He reaffirmed that nothing out of the ordinary had occurred in the financial realm, and that his office had informed and warned us about alleged violations by staff during the referendum campaign. It had not been a good afternoon for Mr. Wood.

Tysowsky testified about a secret meeting at Adams' Point Clear home regarding the "Cafeteria" Bill. The substance of his testimony was that the Board members, and particularly Andrews, were trying to kill the bill all along. No one liked it. His mention of the Point Clear meeting got the attention of the press and caused some squirming at the Board table.

Salter testified for us when he took the stand. He talked about the history of school funding in Mobile County, the shortcomings of the "Cafeteria Bill" and what he thought might have been behind it in the first place. He also testified that he seldom responded to Hanebuth's letters either when he was Superintendent.

The two resource teachers (Pettis and Smith) testified that they knew nothing about any of this and did not know why they had been called as witnesses. That was interesting only in light of the fact that Pettis is Warren's sister-in-law. Smith was extremely nervous, and several of us became concerned for her health while she was on the stand.

The two parents (DePew and Petry) testified that I had not abided by their wishes and removed the principal of O'Rourke School. They alleged that I had called them "Frankenstein monsters" during a meeting with parents in August. Both of these ladies had taped the August meeting but, when we asked for the tapes to be entered into evidence, we were told that the portion dealing with this allegation was "inaudible."

At some point during those first three days, we called Campbell as a witness to fill in because Wood's witness was late in arriving. Campbell testified that he shared my concerns about the "Cafeteria" Bill and that my alleged rudeness to members of the Delegation occurred only after I had been attacked by them.

When Wood concluded with his witnesses, Kimbrough moved that the Board immediately dismiss 33 of the 43 charges since no testimony had even been presented on these. In a series of 33 individual 3-2 votes, the majority decided not to dismiss anything.

The Board recessed the hearing early for the Christmas holidays. Campbell was having some unexpected surgery and would probably not be available until after the new year. The recess was continued until mid-January because Warren was going to be out of the country on vacation. I left for Virginia to see my family. On January 19th, we reconvened.

Kimbrough called three of our 21 witnesses that day: architect Nick Holmes, former School Board investigator Edward McFadden, and Staff Attorney Constance Aune. Holmes' testimony was fairly straightforward and factual. Kimbrough declined to grill him on his relationship with Bedsole and his hand in the Cafeteria Bill. Actually, what Holmes said was pretty important for people to understand, but it went over the heads of most in the room and Kimbrough decided not to press it in deference to Holmes the man. If pressed, he would have been forced to admit just how bad the bill really was. He said it in so many words, but they were not appropriate for 20 second sound bites on the 6 o'clock news.

McFadden's testimony turned out to be the surprise hit of the day. He had worked part time for the Board until January, 1992 as an investigator. He had been sent to Gainesville to do the background check on me during the courtship period. He testified about what he had learned, what he had told the Board upon his return, and about an incident involving a principal that had been mentioned in one of the "charges."

In the course of Wood's cross examination, McFadden allowed as how Andrews had contacted him during the summer of 1992 and discussed some of the "charges" with him. He had told her then that her concerns were "speculative in nature" but that, if she was concerned about such matters, they were easily checked and that she need only ask for the information from staff. The information in question had already been provided to all of the Board members in March and again in April, but Andrews implied that the staff had lied.

His revelation did two things. First, it established a time in June or July when Andrews was already plotting this fiasco and second, it confirmed what we already suspected, i.e., that she knew there was no substance to the charge and made it anyway. In fact, the information was the same information that Richard Dukes had provided (for the third time) in his testimony.

Kimbrough pounced on this little tidbit like a hungry dog. He got McFadden to elaborate on the summer conversation with Andrews and set the stage for subsequent legal actions. What McFadden had brought forward was the obvious capricious and malicious behavior of a Board President to bring charges that she knew were unfounded months before. Even Adams appeared shocked by the testimony. And McFadden's story only further confirmed Fournier's assertion that Andrews was sometimes less than completely truthful. During the break that followed, Kimbrough angrily observed that the entire proceeding was "manifest hypocrisy."

Andrews had charged that I had "authorized and directed school board personnel during regular employment hours to prepare food, refreshments, and decorations for a private, afterhours Christmas party." Aune testified that Sousa had been in charge of the staff Christmas party the preceding year.

I found this "charge" particularly onerous for several reasons. In the first place, Sousa had been in charge of making the arrangements and the rest of us in the Cabinet had only put up the money. I could not believe that he would have let this charge be leveled. Second, the Board members attended the party and thought it was the best morale building thing in years. Third, my only involvement was to help fund it (along with the rest of the Cabinet). Aune was the first of many who were about to testify on this subject.

She also testified on several other items including the "Cafeteria" Bill. She, too, shared my concerns about it. During her testimony, Andrews asked her if she (Aune) knew who she worked for? I have seldom witnessed such a blatant attempt to intimidate an employee. Since Aune was the first staff member to testify other than Tysowsky (who was already a marked man), I am convinced that Andrews wanted get the word out to others that there would be retributions. Another example of the mentality governing the system.

The attempt to intimidate turned out to be unnecessary. At the end of the day, Campbell and Wood indicated that they would like to see a proposal for settlement from us.

On the second day of the hearing, Turner had provided Campbell with a copy of his research that had turned up the 1876 bill requiring a 2/3 vote. Evidently, Campbell and Wood felt as I did about it. No one paid any attention to it until they decided that they wanted to settle. Then it surfaced and Campbell tried to attribute the settlement offer to the existence of the Act. Bullfeathers!

The settlement occurred because certain people did not want to hear the testimony of the next 18 witnesses. In some cases, certain people did not want to be called to the stand and have to testify. Among our remaining witnesses were Mike Dow, Sam Jones, Richard Dorman, Howard Bronson, Fournier, Mitchell, and me. We intended to invite Andrews, Adams, and Warren to testify also, but thought they would decline. In some ways, I think that it is a shame that the hearing did not continue until all of the testimony was brought out. Kimbrough and I discussed the possibility and concluded that it probably would never have been reported anyway. We were all tired and my family had had about all it could stand. At some point, the confusion and anger in the eyes of loved ones take their toll on the gladiators.

Still, we wanted to expose the involvement of various members of the ruling cabal. Dorman was the vehicle. He had called Fournier a week before the October 5th meeting and told her that Andrews "had the votes." He encouraged her to "vote with them to avoid the appearance of the action being racial." Fournier was prepared to testify about the conversation. Dorman was going to have to explain how he knew about the plan and who else had been involved.

I particularly wanted Bronson on the stand in order to expose him to the entire community. His paper probably would not have printed the story, but he would have been fair game for the electronic media and his testimony would have been hard to ignore. I wanted to hear his explanation of his hypocritical editorial policy and of his "power brokering" in his new community. His hypocrisy was spelled out in his own published words over a twelve month period.

After the white majority suspended me, Bronson published three editorials in the same month that were laughable to those close to the school situation. On October 11, Stan Tiner (who Bronson had brought in as the number two man at the paper) described the editorial policy and process of the paper in his weekly column. He said:

"...If you read our editorials, you will know there is a heavy conservative and Republican tilt to the newspaper's point of view. That tilt is directly related to the [editorial] board's overall philosophy and especially the publisher's philosophy. The key office in all of this is the publisher.

"In many respects, the editorial column is "his." In our publisher's case, he has chosen to share some of the decision making with others, but in the last analysis the call is his. In other words, he can vote as a majority of one anytime he wants to. To his great credit, I think, he has not exercised that option..."

In that same column, he also defended the paper's position on another community controversy. The country rock band, Alabama, had been in town to perform at the Gulf State Fair on the preceeding Thursday evening. The group had also agreed to perform on Friday for a charity function in Baldwin County across Mobile Bay. The charity function organizers had agreed not to publicize their event until Friday to avoid jeopardizing attendance at the State Fair performance. Someone had leaked the information earlier in the week and the paper ran it in spite of pleas from both the charity and State Fair folks. Tiner justified the publication as follows:

"...The request not to print the information was rejected. The decision was simple. The facts were clear. They constituted news, news that would be of interest to thousands of our readers.

"Had we chosen not to publish such information, how much confidence could readers have in our news report? The people who asked us not to publish would then know it was our policy to selectively not print some of the news. How could you ever know what we were choosing to print and not to print?

"I am aware that there may be a time in which it would be imprudent to print certain information. Such items might include national security matters or when a person's life is at risk in a kidnapping, for example. This matter was not of such importance.

"Almost without exception, the right decision is to print the news...."

When I read it, I laughed out loud remembering Bronson's position on the Cafeteria Bill. Then again, perhaps Tiner only thinks he knows what the rules are.

On October 20, two weeks after my suspension, Bronson ran an editorial entitled: Court Should Back Officers' Free Speech. At issue was a "gag rule" imposed on some local police officers by the Chief and the Mayor. Bronson had this to say:

"... On its face, the rule seems to run afoul of the constitutional guarantee to freedom of expression...We can see where morale and discipline could be undermined by an officer making false charges against the Mayor or Chief, but what if the criticism is well founded?...Public officials should be the first line of protection of constitutional rights and the gag rule seems to be a case of Mobile officials taking an opposite position in order to stifle dissent."

This was the same man who had conducted a four month campaign to have me fired because I had spoken out against a bad bill. It would have been interesting, and probably fairly amusing, to hear him explain the inconsistencies. And it might have exposed the inherent danger to the community that his presence represents.

In March, after the conclusion of the hearing, Bronson ran one entitled: Slanted News Keeps Eroding Public Confidence in which he attacked NBC for their "fiery truck crash" story. He concluded with these words:

"This newspaper - as is the case with all media outlets - is not perfect and never will be.

"However, we make an earnest effort to keep our political preferences confined to the editorial pages and, when we make an error, we publish the correction on page one."

I almost gagged.

I suppose that the Newhouse News Service sanctions both the official and the actual (operational) policies of its papers. The credibility of the Mobile Press/Register has never been outstanding according to long-time residents, but now the credibility problem has a different source. In years past, it was attributed to sloppy jounalism and intellectual laziness. Now it is the result of deliberate slanting of the news. And the new policy is effective. Numerous public officials have told me that my experience was not lost on them. A sad commentary in a community that deserves better.

The settlement negotiations dragged on for several days. Turner met with Wood and Campbell to discuss the details of a settlement while Kimbrough and I waited around with the press and other bystanders. To the casual observer, a settlement should not take a great deal of time. The parties agree on something and simply settle it. That is not how it usually works in most divorce proceedings.

It is at this stage of the process when attorneys often are at odds with each other and their own clients. The attorneys are tired and can see where the thing is going to wind up. If they are working for a fixed amount, it is likely that they have already exceeded that amount and are now working for free. If they are working by the hour, they are having the work of other clients pile up on their desks and run the risk of alienating judges with requests for postponements. Everybody loses at this stage. They want it to be over.

However, they now must convince their clients that the proposed settlement is fair, reasonable, and acceptable. This is the tough part. At this point, I wanted some blood. The Board was not concerned about the money, nor was I. The two-day delay was over language. Admittedly, my original language was not very realistic given the political ramifications of the situation.

I wanted the charges dropped, a publc apology, a public admission of the conspiracy and its roots, and a public expression of appreciation for what had been accomplished during the 15 months of my tenure. Turner laughed out loud when he saw the language. He said he knew how I felt and he agreed with me, but that he might as well not even bother to talk with Campbell. In fact, he said Campbell would probably be summarily dismissed himself if he even took the proposal to Andrews at that point.

Had the majority of the Board accepted it, they would have had to leave town that night. In fact, their "supporters" would have driven them to the bridge. Even after I calmed down, Campbell still had to sell them on accepting something akin to a truckload of crow feathers, while Turner was softening me up on the other side. I finally had to tell Turner that I had gone as far as I was going to go, and that he needed to tell Campbell that we were ready to reconvene when they were, even if it meant renegotiating the contract I had with Kimbrough and Turner. It was amazing how quickly the settlement was reached.

The settlement statement was brief and to the point: "[T]he Board shall dismiss with prejudice all of the charges contained in the letter from the President of the Board to Dr. Magann, dated October 22, 1992, and any other official actions of the Board in connection therewith, it being the intent of the Board to remove any shadow cast upon the professional reputation and personal character of Dr. Magann."

I agreed to resign effective February 1, 1993 for approximately 75 percent of the value of the remaining 30 months on the contract, and the Board agreed to reinstate Gene Tysowsky and Barbara Shaw (who were innocent bystanders caught in the political crossfire) and to guarantee their employment until August 1, 1993 in order to give them time to seek something else.

The reports of the settlement reminded me of a high society divorce in Palm Beach covered by tabloids. In fact, the whole sordid mess did.

(Next Article in the Series)

-- November 9, 1993

The Harbinger is a biweekly newspaper published through the effort of The Harbinger, which consists of area faculty, staff and students, and members of the Mobile community. The Harbinger is a non-profit education foundation. The views expressed here are the responsibility of The Harbinger. Contributions to The Harbinger are tax exempt to the full extent of the law and create no liability for the contributor.