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NHC school board switches legal representation in contentious vote

Jonathan Vogel at the April 24 meeting. Behind him sits Jonathan Sink, who will also represent the district.
Jonathan Vogel at the April 24 meeting. Behind him sits Jonathan Sink, who will also represent the district.

On Tuesday evening, the New Hanover County School Board voted 4-3 to hire the Vogel Law Firm to replace their current one, Tharrington Smith. But this decision was not without controversy.

The board debated the relative merits of three candidates, including their current firm, Tharrington Smith, which was scored highest by a screening committee – Vogel was scored lowest.

But there was significant outside partisan pressure to choose the Vogel Law Firm – one of whose main attorneys is well-connected with the Republican party. Jonathan Sink is the former executive director of NCGOP and worked for Republican Speaker of House Tim Moore and former Republican State Superintendent Mark Johnson.

They were publicly endorsed by Republican Vice-Chair Pat Bradford and former New Hanover County Commissioner Woody White, who sits on the University of North Carolina System Board of Governors, and tacitly endorsed by the New Hanover County GOP.

Bradford emphatically praised the firm in both her committee evaluation of them — and during their presentation at the board’s April 24 agenda review.

A few days before the board meeting, White sent an email to the school board members encouraging them to vote for the Vogel Law Firm.

“It is my opinion that you will be much better informed on the critical issues you face by having new legal counsel that will take a fresh look at your ongoing active cases, and that will support you with firm legal guidance as you re-calibrate the liberal orthodoxies that have made their way into our local system,” White wrote.

Woody White's email to the board members.
Woody White's email to the board members.

The following day, the New Hanover County Republican Party Chair Nevin Carr sent out a sample email to its members, asking the school board to change their current law firm, that being Tharrington Smith.

While Carr’s email didn’t specifically name Vogel – and could have in theory been referencing a third choice, Poyner Spruill – it used some of White’s language verbatim.

“Whether it was the closures and cancellations during Covid, the retention of masks in schools well past the time when their lack of efficacy was well-known, or the prolonged litigation over sexual abuse that has spanned years but that once uncovered has languished with no finality, the lack of confidence in our local public school system will continue until decisions are made that fully reflect the will of the voters in the last election cycle.

For the New Hanover County School System, getting new legal counsel is a step in the right direction.”

At the outset of Tuesday’s board meeting, Member Stephanie Kraybill asked if the vote could be tabled to allow additional time to gather more information on the three firms being considered – but her motion was defeated in a 4-3 vote, with the other four Republican members, Bradford, Board Chair Pete Wildeboer, Josie Barnhart, and Melissa Mason, voting against.

Additionally, after the board emerged from an hours-long closed session, Kraybill, – and Board Members Stephanie Walker and Hugh McManus tried to table it again due to the lateness of the evening, but it failed. The board was set to vote on Vogel.

The arguments from committee members evaluating the firms

Walker openly declared her opposition to the Vogel Law Firm.

“I am very vehemently against this, based on qualifications alone. Not whether I like him [Jonathan Vogel], them, or whatever, because when I did this, I didn't know who they were, I just saw their paper. And we have a baseline for a reason. And they did not cut it,” Walker said.

She was part of the three-person committee, which included Superintendent Dr. Charles Foust, to rate the three candidate law firms of Vogel, Poyner Spruill, and Tharrington Smith. Vogel scored the lowest. Foust joined Walker in his skepticism of their ability to serve the district and the firm’s length of expertise in education law practice.

Vice-Chair Pat Bradford, who was also a part of the scoring committee, disagreed with Walker.

“We need fresh attorneys. These are highly qualified attorneys. Some of the best attorneys in the state are with this group. To say that they are unqualified is ludicrous,” Bradford said.

Bradford went on to list Vogel’s credentials working in the “U.S. Department of Education; U.S. Department of Justice, Civil Rights Division; U.S. House of Representatives Counsel to the Judiciary Committee, U.S. Federal prosecutor [in] Charlotte, [...] I mean, their qualifications are impeccable, absolutely impeccable.”

Walker maintained, along with Kraybill, that Vogel’s expertise did not rival that of Tharrington Smith and Poyner Spruill — and said what was underlying the board vote was the considerable pressure from the local Republican establishment to select Vogel.

“Mr. Chair, I know that we are getting inundated with emails from people, including some prominent people, to lean on us to pick the most conservative firm. And I know a call to action was made last week to do so,” Walker said, referring to both White’s email and the form emails sent out by members of the New Hanover County GOP.

Walker and Kraybill both mentioned that they didn’t trust Vogel, saying they felt he hadn’t been forthcoming about the impending termination of his Cabarrus County Schools’ contract — work he had touted when presenting before the New Hanover County board.

Streamed meetings of the Cabarrus County School Board on April 24 and May 1 both featured board members talking openly about the choice between Poyner Spruill and Johnston, Allison, Hord Attorneys & Middlebrooks Law PLLC, their two finalists.

At the May 1 meeting, board members discussed the transition to another law firm — saying their upcoming vote for legal representation would happen on May 8. Vogel did say at this meeting that he’d hoped his firm was “still in the running,” something he also said at the New Hanover County School Board meeting on April 24.

Further, Vogel didn’t appear to be the main counsel at this Cabarrus meeting. The Cabarrus board called up Attorney Jay White who filled the board in on the possible transition to another law firm.

Other board members weigh-in

While Bradford was enthusiastic about Vogel, Wildeboer said, “I'm not thrilled about any group, to be honest.”

Wildeboer said he had been “hurt” by legal arguments made by Deborah Stagner, the Tharrington Smith attorney, who represented the district in recent litigation involving the victims and alleged victims of former teacher and convicted child abuser Michael Earl Kelly.

During a three-day court hearing, Stagner had argued that the schools didn’t have a ‘fiduciary responsibility’ to keep students safe.

Schools don't have a fiduciary responsibility to keep students safe? That paints us all in a really bad light,” Wildeboer said.

He did note that those statements weren’t directed at the current Tharrington Smith Board Attorney Jason Weber, who’s been advising on their day-to-day operations.

Wildeboer added he was also concerned that Tharrington Smith represents theinsurance company that the district is suing for additional money (if there were a legal settlement or judgment paid to the survivors of Kelly’s sexual abuse), mentioning they had to contract with another firm in the insurance payout case.

While Tharrington Smith no longer represents the district against its insurance companies, it is, for the moment, still serving as defense counsel against the suit filed by Kelly’s victims. The firm has maintained that they have no conflict of interest. However, not everyone has been swayed by that claim.

Member Hugh McManus said that likeability should not factor into their law firm selection. That the depth and quality that Tharrington Smith brings is important to the board – that they shouldn’t be getting rid of their law firm at such a precarious time.

“And we're going to start with someone [Vogel] who doesn't know one thing [about current litigation], and they're going to have to respond. And they're going to have to make some quick decisions. And if that accuracy is not there, the background, the understanding of what has happened and what's taken place, we're going to pay the piper,” McManus said.

Josie Barnhart agreed with Bradford, White, and the New Hanover County GOP, saying that the civil suit needed a new firm with a fresh set of eyes. Barnhart did say to the members not comfortable with the four to six attorneys on staff at Vogel that they could possibly contract out with another law firm for support.

Kraybill said the costs associated with Vogel were too much – even more than Tharrington Smith’s.

According to her calculations, going with Vogel would not be cheaper for the district as they are planning to do a monthly retainer with them, along with paying them hourly to deal with litigation. She said they’ll likely pay them around $270,000 a year, without factoring in litigation.

As of now, without litigation costs, the district has been spending an average of $262,320 a year with Tharrington Smith.

Ultimately, the arguments made by Kraybill, Walker, and McManus lost out.

At one point, getting closer to the final vote, Kraybill tried to introduce a new motion to appoint a special or in-house counsel instead of going with one of three law firms. Shortly thereafter, Wildeboer said she had used up her maximum two comments.

Kraybill kept trying to counter something Bradford had said earlier about the Vogel firm. Wildeboer gaveled her to stop: “You’re out of order.”

After the vote was called – and Vogel was selected – Walker immediately left the dais, and not long after her, Kraybill began packing up her stuff.

Bradford said, “Was that a move to adjournment?”

Wildeboer: “Move to adjourn.”

The new contract for the Vogel Law Firm begins July 1.

Rachel is a graduate of UNCW's Master of Public Administration program, specializing in Urban and Regional Policy and Planning. She also received a Master of Education and two Bachelor of Arts degrees in Political Science and French Language & Literature from NC State University. She served as WHQR's News Fellow from 2017-2019. Contact her by email: rkeith@whqr.org or on Twitter @RachelKWHQR