IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

Richard Franklin, )
)
Plaintiff, )
)
v. ) Civil Action No.: ______________
)
)
Birmingham City Board of )
Education; Wardine T. Alexander, )
Sherman Collins, Jr., )
Lyord Watson, Brian Giattina, )
Daagye Hendricks, Cheri Gardner, )
Randall Woodfin, April M. )
Williams, and Sandra Brown )
in their individual capacities and )
official capacities as members of the)
Jefferson County Board )
of Education; Fictitious Parties A, )
B, and C, )
)
Defendants. )

COMPLAINT

COMES NOW Plaintiff Richard Franklin and for his Complaint against

Defendants, states as follows:

PARTIES

1. Richard Franklin is an adult resident and tax-paying citizen of the City of

Birmingham, Alabama.
2. Defendant Birmingham City Board of Education (Board) is a local entity of

government and is charged with policy and governance of Birmingham City

Schools pursuant to the authority granted it by state law.

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3. Defendant Wardine T. Alexander is, on information and belief, an adult resident of

the City of Birmingham, Alabama, and is the President of the Birmingham City

Board of Education.
4. Defendant Sherman Collins, Jr. is, on information and belief, an adult resident of

the City of Birmingham, Alabama, and is the Vice President of the Birmingham

City Board of Education.

5. Defendant Lyord Watson is, on information and belief, an adult resident of the City

of Birmingham, Alabama, and is an elected member of the Birmingham City Board

of Education.
6. Defendant Brian Giattina is, on information and belief, an adult resident of the City

of Birmingham, Alabama, and is an elected member of the Birmingham City Board

of Education.
7. Defendant Daagye Hendricks is, on information and belief, an adult resident of the

City of Birmingham, Alabama, and is an elected member of the Birmingham City

Board of Education.
8. Defendant Cheri Gardner is, on information and belief, an adult resident of the City

of Birmingham, Alabama, and is an elected member of the Birmingham City Board

of Education.
9. Defendant Randall Woodfin is, on information and belief, an adult resident of the

City of Birmingham, Alabama, and is an elected member of the Birmingham City

Board of Education.
10.Defendant April M. Williams is, on information and belief, an adult resident of the

City of Birmingham, Alabama, and is an elected member of the Birmingham City

Board of Education.

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11.Defendant Sandra Brown is, on information and belief, an adult resident of the City

of Birmingham, Alabama, and is an elected member of the Birmingham City Board

of Education.
12.Fictitious Parties A, B, and C, whether singular or plural, are those persons or

entities who authorized expenditure of Board funds for travel, food, and lodging

expenses of interview candidates, without approval from the Board.

JURISDICTION

13.This is an action seeking declaratory judgment and injunctive relief for the

performance of duties and obligations required of Defendants by state and local

law. Plaintiff seeks injunctive and declaratory relief pursuant to Rule 65,

Ala.R.Civ.P., Rule 81(a)(15), (16), and (19), Ala.R.Civ.P., and 6-6-220, et seq.,

and 6-6-500, et seq., Code of Alabama (1975). Plaintiff also invokes the

jurisdiction of this Court seeking relief to which he is entitled for violation of state

law, particularly Ala. Code 16-11-5 which prohibits city boards of education

from passing any motion or resolution without a concurrence of the majority of the

board. The Court has jurisdiction over these matters pursuant to the Constitution

of Alabama.
14.Plaintiff alleges that Defendants have misused public funds by expending such

funds without authorization from the Board.

15.Plaintiff alleges that Defendants have acted willfully, knowingly, maliciously,

fraudulently, in bad faith, beyond their authority, and/or under a mistaken

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 interpretation of the law and are not immune to suite pursuant to Ex Parte

Cranman, 792 So. 2d 392 (Ala. 2000).

VENUE

16.Venue is proper pursuant to Rule 82(b)(1)(A) and 82(c), Ala.R.Civ.P., and 6-3-

2(a)(2) and (3) and 6-3-2(b)(2), Code of Alabama (1975).

FACTUAL ALLEGATIONS

17.Ala. Code 16-11-5 prohibits city boards of education from passing any motion or

resolution without a concurrence of the majority of the board.

18.Defendants are currently in the process of identifying and selecting a new

Superintendent of Birmingham City Schools, pursuant to the authority vested in

the Board by Ala. Code 16-12-1.

19.In order to facilitate the hiring of a new superintendent, the Board created a

subcommittee (the Search Committee) tasked with establishing a process and

approach for soliciting, screening, and selecting the new superintendent.

20.On December 13, 2016, the Search Committee requested Board approval to

negotiate with the Alabama Association of School Boards (AASB) for that

organizations services in advertising the superintendent position, screening

candidates, scheduling interviews, and other aspects of the superintendent search.

The Search Committee also presented for Board approval a timeline for the

superintendent search. That timeline included posting the notice of vacancy by

January 9, 2017, AASBs presentation to the Board of potential candidates by

February 28, 2017, and a final candidate to be selected on March 13, 2017.

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21.At the December 13, 2016 meeting, the Search Committee requested Board

approval for expenditure of approximately $6,000.00 to compensate AASB for

services rendered in the search for a superintendent. The Search Committee did

not request, and the Board did not approve, any expenditure of funds related to the

travel, food, and lodging of candidates for the superintendent position.

22.Any changes in the search for a superintendent would have to be approved by the

Board in a meeting that complied with the Alabama Open Meetings Act (OMA),

Ala. Code 36-25A-1, et seq. The Board has not voted to approve any changes

in the timeline or process of the superintendent search in any meeting that

complied with the requirements of the OMA since the December 13, 2016 meeting.

More importantly, the Board has not authorized any additional expenditure of

funds associated with the superintendent search in a meeting that complied with

the OMA.
23.The superintendent search has not proceeded in accordance with the timeline and

process approved by the Board in the December 13, 2016 meeting. Among other

deviations, the Board did not begin interviewing candidates until April 19, 2017.

Though Defendants had communicated that interviews with candidates would be

conducted via an internet conferencing program, four out-of-state candidates

travelled to Birmingham to be interviewed in person.

24.Upon information and belief, Defendant(s) Fictitious Parties A, B, and/or C

utilized the Boards public funds to pay for travel, food, and lodging expenses.

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 This expenditure of public funds was not, at any point, approved by a majority vote

of the Board.
25.Upon information and belief, two out-of-state candidates have been asked to return

to Birmingham for a second in-person interview, and public funds will again be

used to pay for travel, food, and lodging expenses. The Board has not, by majority

vote, approved any such expenditure of Board funds.

26.The Board, its members, and its agents are acting in violation of their obligations

under 16-11-5, Code of Alabama (1975) by allowing for the expenditure of

public Board funds without express approval by majority vote of the Board. The

payment of candidates travel, food, and lodging expenses without Board approval,

and the impending repetition of that violation for a second round of interviews,

constitutes misuse of public funds.

27.The Board has been cautioned recently regarding the failure to approve

expenditures of public funds. The State of Alabama Department of Examiners of

Public Accounts (Examiners) performed an audit of the Boards finances for the

period of October 1, 2014 through September 30, 2015, pursuant to the authority

granted the Department by Ala. Code 41-5-21. The report of that audit is

attached hereto as Exhibit A. Included in that report is a finding that the Board

compensated a previous superintendent for accrued but unused sick days in

deviation from the Boards contract with that superintendent and Board policy

regarding compensation for accrued sick leave. (Ex. A, pp. D-E). The Examiners

noted specifically that [w]ithout official action taken by the Board, this expense

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 which deviated from the contract and the Boards policy is not considered as

having been approved by the Board. (Ex. A, p. D).

28.Despite the warning issued by the Examiners, the Board has again expended public

funds without authorization by compensating superintendent candidates for travel,

food, and lodging expenses related to their interviews without receiving Board

approval.
29.Plaintiff has been harmed by the Boards unauthorized expenditure of public funds

in that he is a taxpayer of the City of Birmingham. The misuse of public funds by

a locally-elected governmental body such as the Board has a detrimental effect on

the education of children in the City of Birmingham, and erodes public trust and

confidence in the Board.

COUNT ONE
DECLARATORY JUDGMENT

30.Plaintiffs adopt and reallege Paragraphs 1 through 29 as if set out anew herein.
31.As set out above, Defendants violated Ala. Code 16-11-5 when they utilized

public Board funds to pay the travel, food, and lodging expenses without Board

approval.

WHEREFORE, PREMISES CONSIDERED, Plaintiff seeks the

following: Issue a declaratory judgment that the Defendants actions violate Ala.

Code 16-11-5, and that the Board must expressly approve any expenditure of

public funds.
Issue a declaratory judgment that Defendants are obligated to seek

reimbursement of all Board funds expended without authorization.

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 That this Court award such fees, costs, and expenses of maintaining this

action in order to restore legal rights of which Defendants had clear knowledge,

expressly requiring that the costs of this action be taxed against the Defendants,

which costs would include, but not be limited to, reasonable attorneys fees.
Plaintiff further prays that he be awarded any further relief, and that such

other orders and judgments as necessary be entered, to which he may be entitled

under the facts set out herein or under applicable law.

COUNT TWO
INJUNCTIVE RELIEF

32.Plaintiffs adopt and reallege Paragraphs 1 through 29 as if set out anew herein.
33.As set out above, Defendants violated Ala. Code 16-11-5 when they utilized

public Board funds to pay the travel, food, and lodging expenses without Board

approval.

WHEREFORE, PREMISES CONSIDERED, Plaintiff seeks the

following:
An Order that directs Defendants to immediately cease all unauthorized

expenditure of public funds and that prohibits Defendants from expending any

public funds for the travel, food, and lodging expenses of superintendent

candidates in the future, unless such expenditure is expressly approved by the

Board in a meeting in compliance with the Alabama Open Meetings Act, Ala. Code

36-25A-1, et seq.

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 That this Court order Fictitious Parties A, B, and/or C to reimburse the

Board in the amount of the funds that party authorized to be expended without

Board approval.
That this Honorable Court award such fees, costs, and expenses of

maintaining this action in order to restore legal rights of which Defendants had

clear knowledge, expressly requiring that the costs of this action be taxed against

the Defendants, which costs would include, but not be limited to, reasonable

attorneys fees.
Plaintiff further prays that he be awarded any further relief, and that such

other orders and judgments as necessary be entered, to which he may be entitled

under the facts set out herein or under applicable law.

Dated: April 21, 2017

s/ Nicolas M. Stanojevich
NICOLAS M. STANOJEVICH (STA113)

s/ Glen M. Connor
GLEN M. CONNOR (CON003)

Attorneys for Plaintiffs

OF COUNSEL:

QUINN, CONNOR, WEAVER,

DAVIES & ROUCO LLP
Two North 20th Street
Suite 930
Birmingham, AL 35203
205.870.9989 phone

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205.803.4143 fax
gconnor@qcwdr.com
nstanojevich@qcwdr.com

PLEASE SERVE DEFENDANT via Certified mail:

BIRMINGHAM BOARD OF EDUCATION

c/o Dr. Larry Contri, Interim Superintendent
2015 Park Place North
Birmingham, Alabama 35203

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