Prior to the Monday presentations, the firms were reviewed and scored by a screening committee comprised of Superintendent Dr. Charles Foust, Vice-Chair Pat Bradford, and Board Member Stephanie Walker. Foust and Walker both preferred Tharrington Smith — the firm that currently represents the district. But Bradford preferred Vogel, a smaller but politically well-connected firm.
The choice of legal representation is consequential, because the district is in the midst of high-profile litigation, including a case involving the victims of former teacher Michael Earl Kelly. That litigation has cost hundreds of thousands of dollars annually over the last few years.
Committee Scoring Sheets
The screening committee was asked to use a rubric to evaluate each of the law firm’s credentials and capabilities. These scores weren't presented during Monday's meeting, but through a public records request, WHQR received the committee’s evaluations of the firms.
The screening committee ranked Tharrington Smith highest, followed by Poyner Spruill, then Vogel Law Firm.
Foust and Walker agreed that the Vogel firm didn’t have the depth, as in the number of lawyers on staff, needed to serve the district. Additionally, Foust noted that they have “little experience with BOE [boards of education].”
However, Bradford’s comments showed a much better impression, “[I]am impressed with them,” “all they do [sic] formed to do this,” and the “only one who noted Robert’s Rules.”
Both the current and past iterations of the board have at times struggled with decorum and following Robert's Rules of Order, the formal blueprint many government boards use to conduct official meetings. The previous board had training by a parliamentarian, and in January the current board was trained by their lawyer, Jason Weber, on Robert’s Rules of Order.
The committee members also summarized the firms' hourly rates.
What the firms had in common
Although they differentiated their pitches, all of the firms reiterated that their number one priority would be serving the will of the board. Further, they all acknowledged the contentious issues the board faces such as what to do in terms of transgender athletes’ rights and removing certain books from the schools’ libraries.
They all said that their purpose is to counsel the board, tell them what the law says — but ultimately allow them to make their own decisions. But the firms did say that most cases are resolved through mediation, but if the board did decide to go through with litigation in a case, they would represent them to the best of their ability.
Poyner Spruill, LLP
Presenting for Poyner Spruill were Rachel Hitch, who specializes in special education law, and Brain Shaw. While Hitch would be the likely legal representative for the board, Shaw said they have about 11 lawyers working on a variety of education law issues. They’re also the board attorney for nine school districts across the state, including Pender County Schools.
Hitch said that she wanted to be “very honest” with the board, that they have had “substantial legal issues” over the last couple of years, and their firm would help them “not make those mistakes again.”
Further, as special education suits are rising throughout the state, the law firm said they could help train the district’s special education teachers. That this training would help the district make decisions to “keep them out of court.”
Board member Josie Barnhart was absent on Monday, but sent her question through Board Chair Pete Wildeboer, who asked how the law firm would defend the board against possible lawsuits involving transgender students being barred from sports.
Shaw responded that the law is evolving on this issue — and that the Fourth Circuit Court of Appeals had issued a stay on the ability of transgender athletes to compete, but said that this court could rule favorably in terms of the rights of the athlete. However, Shaw did say that the Supreme Court could still take up the issue — and that the Biden administration is set to release more directives as well.
Board Member Stephanie Kraybill said she was “glad” the firm didn’t have a clear stance on the issue because the “law is still unclear.”
Also part of the discussion was how the firm could bill the board. For now, they were suggesting a monthly retainer fee, except for things like litigation, which would be billed hourly. But said they could also put together hourly retainer proposals as well.
Poyner Spruill was also asked about their biggest education law case. Hitch said they successfully won a $91 million lawsuit against the Union County Commissioners in terms of providing more money for the schools. However, that decision was later overturned — and school boards are no longer allowed to sue county commissions for funding.
Hitch assured the board that if they choose Poyner Spruill that the transition from Tharrington Smith would run smoothly, as most records are maintained digitally for transfer.
Poyner Spruill is also one of two finalists for legal representation for Cabarrus County Schools. They submitted a lengthy public proposal posted by the district.
Tharrington Smith, LLP
Jason Weber, who is the current board attorney, gave most of the presentation for Tharrington Smith. Also representing the firm was Neal Ramee.
They said the firm has 20 attorneys on staff and that it’s the largest education law practice in the state, serving over 20 school boards. They’re also lead counsel for the North Carolina School Boards Association.
Weber said that over the last three years, the firm had “been in the trenches” with the board in terms of dealing with litigation — and legal issues over personnel, special education, contracts, and “difficult” policy matters.
For Barnhart’s transgender athlete question, Weber said he couldn’t comment because he’s the current legal representative for the board.
As for billing, Ramee said they tend to bill hourly for all services since it’s more equitable, that the board pays as they go. But they did tell the board they could go to a monthly retainer if that’s what they wanted.
During the presentation, Bradford said that Weber was the third attorney they’ve had from Tharrington and that they were a “giant” law firm. Weber responded that it was good to have access to the firm’s many educational lawyers and he reassured Bradford that he was “here for the long term.”
Bradford also asked him the “elephant in the room” question — does Tharrington Smith have a conflict of interest in representing the board in current litigation?
What’s in question is whether the firm can represent both the district's insurance companies while also simultaneously representing the district in suing those companies for $31 million in additional coverage. The district is suing their insurance companies because they said they would only pay out around $4 million if the school board lost in a civil suit against John Does 1-14, the survivors of former teacher Michael Earl Kelly.
The district has since retained Frederick K. Sharpless of Sharpless McClearn Lester Duffy to represent them in their battle with the insurance companies.
Weber responded emphatically to Bradford, “I don’t.” He said, along with Ramee, the firm did not have a conflict with the state bar’s professional code of conduct.
He added again, that “Ms. Stagner (also part of Tharrington Smith) was serving as general counsel for the school board and defending you in your cases. There is no conflict. There simply is none.”
Vogel Law Firm PLLC
Jonathan Vogel, based in Charlotte, who presented for his firm, said the “boutique” law office could serve the board better because they were not a “big establishment” and that they could focus on a “smaller number of clients.”
Vogel told the board the firms of Wallace Law, Terry Wallace’s firm, and Jonathan and Leigha Sink would also be serving them.
Currently, the Sinks represent Cleveland County Schools and Wallace consults with Charlotte-Mecklenburg Schools.
Wallace was the attorney representing Charlotte-Mecklenburg Schools during a federal lawsuit brought by a former Myers Park High School student, alleging the district violated Title IX law on how they investigated her claims of sexual assault. It went to trial — and the Jane Doe lost. But Wallace said that Jane Doe's legal team is appealing the decision.
Vogel was quoted in a WCNC Charlotte article saying, Wallace successfully proved the district did not act with “negligence.”
As for Jonathan Sink, in 2021, he resigned as Gaston County’s attorney after two years on the job. In 2019, before his Gaston County stint, Sink was named the executive director for the North Carolina Republican Party. He served eight months as the NCGOP director. Sink was also the general counsel to former Republican State Superintendent Mark Johnson and the deputy chief of staff for Speaker of the House Tim Moore.
In terms of the billing, Vogel said, like Poyner Spruill, they prefer the monthly retainer but would charge hourly for litigation. Like the other firms, Vogel said they’d be flexible.
For the Barnhart question, Vogel agreed with the sentiments of the Poyner Spruill firm in that law on transgender athletes is “fluid.”
Bradford said she appreciated the qualifications of Vogel in that he was a former federal prosecutor — she said, “I’m impressed with you.” She also said to Vogel, “Did I hear you say that you’ve watched our board meetings before?” Although representatives from Poyner Spruill said the same thing, Bradford did not mention it.
Kraybill asked Vogel about a 2020 article posted on his law firm’s blog about the controversy over Charlotte-Mecklenburg Schools surveying their students about gender identity. A district employee told WFAE (an NPR affiliate in Charlotte) these questions would have helped them, “direct precious resources to make sure that students who are lesbian, gay, bisexual, queer (or) transgender can feel safe and supported in their schools.”
Vogel said he stood by his decision to say the district shouldn’t have asked these questions without explicit parental consent. He said to Kraybill that students as young as fifth grade were answering the survey question; however, WFAE reported the survey only asked sixth through twelfth-grade students that question.
After the backlash, the district did eventually remove the questions for that year’s survey.
Vogel returning as lead counsel for Cabarrus County Schools?
Questions arose from members Kraybill and Walker, who asked Vogel why he wasn’t presenting in front of the Cabarrus County School Board on Monday, the same day as the New Hanover County meeting. Cabarrus was hearing from two finalists for legal representation (Poyner Spruill was one of them).
Vogel responded to Walker, “We hope to be selected.”
Kraybill followed up and asked why aren’t you presenting to them this [Monday] evening? He said, “We’re confident that we’ll remain their legal firm.”
WHQR reached out to Philip Furr, director of communications and public information for Cabarrus County Schools, for comment on whether Vogel was still in the running for the district’s legal firm.
Furr replied, “The Cabarrus County Board of Education's current contract for legal services will end on May 9, 2023. At this time, the Board of Education has made no decision on future legal representation.”
Before the Cabarrus board heard presentations from the two finalists, Superintendent John Kopicki reviewed for the board the lengthy process they underwent to select the finalists. During this presentation, he said, “The current legal representation was notified that the legal contract would not be renewed and would end May 9, 2023.” But then later during his presentation, Kopicki said to the board, “It’s at the will of the board to appoint another legal firm.”
During Vogel’s presentation to the New Hanover County Board, he touted his experience representing Cabarrus, along with Leigha Sink’s support of the legal issues involving Cabarrus’s EC students.
District’s current spending on legal services
For the two fiscal years 2021 and 2022, the district spent on average $262,320 using the services of Tharrington Smith, which includes fees for the ongoing litigation with the firms Rhine Law and Lea/Schultz, PC.
Over the past several years, a bulk of the district’s legal services have gone to Tharrington Smith, but they’ve also contracted with Sharpless McClearn Lester Duffy, PA, on legal issues ongoing with their insurance companies. The district has paid the Sharpless firm $61,595 from October 2021 until May 2022.
The district's legal billing records also list John L. White, who works for a communication firm contracted to run the December 2020 Communications Audit Report. The district has paid White a sum of $21,000 from August 2021 until December 2022.
Russell Clark, a spokesperson for the district, said White was brought on to “help with communication regarding ongoing litigation. He is not an attorney but is paid out of that line item in the budget due to the nature of his consulting.”
Editor's Note: The original article listed incorrect scores for the Vogel Firm for both Walker and Foust. It has been since updated.
