Superior Court Judge Quintin McGee recently ruled on some motions involving the case of former Cape Fear Community College Trustee Ray Funderburk III against the Board of Trustees. Funderburk’s suit was brought after the trustees voted 9-4 to remove him from the board; he’s claiming this hearing, which took place on March 8, 2023, violated his right to due process and free speech.
Funderburk is suing the trustees who voted to remove him: Bill Cherry, Jason McLeod, Zander Guy, Bruce Moskowitz, Bruce Shell, Paula Sewell, Lanny Wilson, and former member Bill Rivenbark (Robby Collins also voted to remove him, but was not named in the suit). These board members are represented by attorneys Sean Partrick and Scott Scurfield. Gary Shipman and Thomas Harvey represent Funderburk.
Related: The Trial of Ray Funderburk
McGee’s rulings came down in mid-January after a December 4, 2024 hearing.
One of the orders pertained to a meeting between Funderburk, Ken Gray of Ward and Smith (CFCC’s legal counsel), Cherry, and McLeod, who were then chair and vice-chair of the board, respectively. This meeting was when Funderburk was notified that Cherry would hold a public hearing two days later, seeking to dismiss him from the board. Funderburk had sought to introduce questions about the meeting; the defense argued it was protected by attorney-client privilege.
McGee wrote that because Funderburk was present at this meeting, he could waive this right of attorney-client privilege. This means that Shipman can now depose Cherry and McLeod about what was said during it.
However, McGee also ruled on other meetings, where Gray, McLeod, and Cherry called individual board members into meetings to discuss Funderburk’s removal ahead of the hearing. Shipman provided evidence that Gray said these meetings were so as not to “create a quorum of the board, nor of any particular committee of the board” (and thus avoid any public record or open meeting requirements).
McGee decided those would be subject to attorney-client privilege. That doesn’t mean those board members are legally ‘gagged.’ The members called into those private meetings could waive their right to this privilege; they just won’t be compelled by the court to divulge what was said.
McGee also ruled against a subpoena request by the defense.
The defense had requested Funderburk’s employment record from August 2004 until June 2018 from the Pender County Board of Education. They asked for all of Funderburk’s correspondence, personnel files, text messages, and emails.
Shipman said during the hearing that if the judge granted this, he could move to open the personnel files of the trustees. McGee quashed this request from the defense, writing, “The overly broad nature of the request for information contained in the subpoena [...] is unreasonable and unduly burdensome.”
Shipman also asked the court for partial summary judgment, which the judge denied because there were still “genuine issues of material fact.” One of the defense’s claims to deny partial summary judgment is that more depositions are still needed.
On January 27, Shipman filed a motion asking the judge to reconsider or amend this order, denying this partial judgment. He said that McGee could rule on “certain facts” and “conclusions of law.” This would basically set them aside, above dispute, as the case proceeds.
Shipman suggested the judge could rule that the North Carolina Board of Community Colleges had the authority to remove Funderburk from the board, not the CFCC board. He added that the hearing process did not follow what is outlined in the NC General Statutes and CFCC’s by-laws.
However, the defense countered that lawyers for the system office gave the trustees the green light to conduct the removal hearing.
Shipman also wanted the judge to rule that this hearing was not done according to the rules of quasi-judicial proceedings where parties would “offer evidence, cross-examine adverse witnesses, inspect documents, have sworn testimony, and have written findings of fact supported by material evidence.”
Funderburk’s attorneys also wrote that these facts of the case are not in dispute: the details surrounding Funderburk’s appointment to the board, the events leading up to his removal hearing, and statements made during the March 8, 2023, hearing.
The defense filed a motion on February 7 supporting McGee’s denial of partial summary judgment mainly because there is more fact-finding to be completed through deposing various witnesses — and because of this, there are “genuine issues of material facts.”
The judge has yet to rule on Shipman’s motion, asking for reconsideration of amending his order to establish these facts.
WHQR reached out to the plaintiff and defense attorneys. Shipman said he has no further comments for the plaintiff at this time. Partrick referred questions for the defense to Ken Gray of Ward and Smith, who has yet to respond.
