Both sides of school lawsuit revealed

Staff reporter

Rural Hillsboro resident Raymond Brandt doesn't believe USD 410 constituents were given all of the information before voting on a multimillion dollar bond issue last year.

The bond issue was for improvements and additions at Hillsboro Elementary School and Hillsboro High School, and a new track and football stadium at Tabor College.

The question was put on the ballot in the June 5, 2007 election, and it passed.

The day before the election, Brandt filed suit.

Brandt takes issue with an interlocal agreement between the school district and the college for the construction of a new sports facility and is contesting whether public funds can be used to make improvements on a facility owned by a private entity.

For years, the school district has used the college facilities for sporting events, so the school district and college decided to work together for a new facility.

As part of the agreement, the school district and the college will each chip in more than $2 million toward the project. Each entity then will own 50 percent of the facility.

Recently, documents were filed in Marion County District Court that stated the dispute arose when school bonds were issued for the athletic facility which would be jointly financed and jointly owned by USD 410 and Tabor College.

According to Brandt, there is no clear-cut answer as to what will happen to the stadium property after the bonds are paid.

The original interlocal agreement, which was sent to the Kansas Attorney General for review, stated the agreement will continue for 40 years unless the bonds are paid before that time. Upon termination of the agreement, the athletic facilities will continue to be jointly owned by both entities.

The questions being asked by Brandt, through attorney Susan Schrag of Morris, Lang, Evans, Brock & Kennedy of Wichita, are, "Can a public entity co-own a facility with a private entity?" "Is the interlocal cooperation agreement (that spells out the arrangement) valid?" and "Is the bond election invalid because material omissions have been excluded?"

"The law on the book does not allow public and private co-ownership," Brandt said, and Schrag agrees.

"The lawsuit is challenging the legality of the bonds because we don't believe the school district and private college can jointly own a property paid with tax dollars," Schrag said.

How has the school district responded to the allegations made by Raymond Brandt and his attorney?

In the answer to the first amended petition, as provided by USD 410 attorney Mark Biberstein of Foulston & Siefkin, LLP, of Wichita, he contends that the school district can jointly acquire, hold, and dispose of real and personal property with another public agency or a private agency like Tabor College.

The attorney and school district also disagree with Brandt that the school board does not have the authority to acquire an undivided joint interest of the athletic facility on the Tabor College campus.

Efforts were made by Biberstein to gain information from Brandt regarding his concerns about the interlocal agreement.

In a court document filed by the school district, Biberstein had asked Brandt and his attorney, Susan Schrag, if the disagreement with the interlocal agreement was because it provided for joint ownership with Tabor. If so, then the plaintiff's concerns could not be addressed. However, the court document continued, if Brandt's concerns were related to extraneous matters, then the district would consider addressing those concerns in the hope of narrowing the issues to be decided by the court.

However, according to the court document, Brandt and Schrag refused to voluntarily identify the concerns.

A letter then was sent, again asking Brandt to voluntarily disclose his concerns which was to no avail.

"Even though the district believed (and still believes) that the interlocal agreement met the requirements of the Interlocal Cooperation Act, the district still desired to narrow the issues to present to the court."

On Feb. 29, the district served written discovery on Brandt, forcing him to identify his disagreement with the interlocal agreement.

After receiving his responses, the district attempted to accommodate the plaintiff's concerns and negotiated an amended interlocal agreement with Tabor College.

Biberstein said, through the court document, that Brandt made no effort to identify for the attorney general any disagreement with the amended interlocal agreement.

When Brandt was informed that the district and Tabor College had formally approved the amended interlocal agreement and that the attorney general's approval would be sought, the plaintiff filed a motion claiming that, by virtue of the amended interlocal agreement, the bond notice submitted to constituents was insufficient, rendering the election void.

The district, through its counsel, again asked Brandt why he believed the amended the agreement caused the bond notice to be insufficient to which, the district claims, Brandt did not voluntarily respond.

"Accordingly, to avoid the delay that (the) plaintiff seeks, the district has withdrawn the amended interlocal agreement. The original interlocal agreement is in effect."

"The public didn't know all this when they were voting on the bond issue," Brandt said, that public funds were going to the private college.

USD 410 Superintendent Doug Huxman said when the agreement was drawn, the school district and its attorney made sure they were following state statute.

"They had done their homework," Huxman said, contacting Kansas Association of School Boards and other organizations for input.

The school district agrees that public and private funds cannot mix and they will not mix in this project, Huxman said.

"We're not paying for each other's project at all. We're paying for our portion and Tabor College is paying for its."

If the school district did not contribute toward a new facility, it still would have paid the college for use of a facility.

The entire bond issue was for $6.625 million, which does not include Tabor College's share of $2,016,541.

Tabor College has raised funds for its share of the construction project, Brandt said, with one donor giving $1 million.

"Surely they can find more donors to cover the entire project," he said.

Brandt used examples of other private college and school district projects.

Bethany College is improving its stadium with the local school district but no tax money is involved, Brandt said.

"Bethany will own the facility and have an agreement for the school district to use it."

Sterling College also is remodeling its stadium with a school district by way of agreement but the college is the sole owner of the property.

Also named in the suit filed by Brandt is Kansas Attorney General Stephen Six.

The reason for the suit against him is because the attorney general's office approved the interlocal agreement between the school district and the college.

"The interlocal statute has a laundry list that has to be in the agreement to be valid," Schrag said. "This agreement is missing a number of the provisions."

Biberstein filed a motion to dismiss claims against the attorney general, stating that Brandt cannot bring suit against the attorney general because Brandt was not the county attorney. Only the county attorney can file a suit against the attorney general.

Also, withdrawal of the AG's approval would not necessarily provide Brandt with relief because the attorney general's office is not required to take action and after 90 days of inaction, the agreement would automatically be considered to be approved.

The document also stated that the attorney general has no interest in the project and the dispute should be left to those with an actual interest in the outcome.

The main point of contention is what will happen to the property after the bonds are paid.

Brandt said his actions have drawn criticism and praise.

"After I filed the lawsuit, some said they were disappointed, others have said, 'Don't back down'," he said. "I've had more say 'Don't back down'.

"It would have been cheaper to have kept quiet and paid my taxes," Brandt said.

"We really hope the outcome of this reflects what was part of the bond issue," Huxman said. "The intent of the bond issue was for this community to put together an athletic facility that could be used by the school district and Tabor College.

"We believe this joint project is beneficial to the community instead of trying to figure out how to support two facilities," he said.