A long-running legal fight between a Midlands school district and its former superintendent is hung up on the question of whether the superintendent’s attorneys can ask school board members why they filed a lawsuit against him in the first place.
Attorneys for the Lexington-Richland 5 School District and former Superintendent Stephen Hefner argued the case in federal court Friday, revolving around what, if any, immunity that elected officials can claim when questioned about their public votes.
The Lexington-Richland 5 School Board filed suit against Hefner in 2021, claiming he had “interfered” in the school district’s contractual relations when he and other former district officials wrote a letter to the district’s accrediting agency Cognia, asking for a review of the contract Lexington-Richland 5 had signed with its interim superintendent , Akil Ross.
The letter was critical of the arrangement, in which the district contracted for “superintendent services” with Ross’ education consulting firm, HeartEd LLC, rather than hire Ross directly as a district employee.
That led to a countersuit from Hefner against the district and then-board members Jan Hammond, Catherine Huddle and Ken Loveless. Hefner claimed the suit was a retaliatory government action meant to punish him for critical speech protected by the First Amendment, moving the case to South Carolina federal district court.
In its suit, the school district called Hefner’s action “wrongful, malicious and politically motivated,” and claimed the letter contained “false information” that “implied wrongdoing” by Ross and the district. Ross was later named the district’s permanent superintendent.
The school board voted to drop the lawsuit nearly a year later without the case going to trial, but Hefner has continued to press a counterclaim against the school district .
Hefner’s attorneys Jonathan Knicely and Jacob Kea had conducted depositions with school board members, who declined to answer any questions about the process or discussions leading to the lawsuit, citing their legislative immunity as members of a public body and citing attorney-client privilege for discussions with the board’s lawyer in closed-door meetings.
But Hefner’s side argued that establishing malice behind the decision is the key to their case, and that having initiated the lawsuit, board members could not now decline to answer their questions about it.
“All we want to ask is ‘why?’” Knicely told Judge Paige Gossett on Friday. “Why was this lawsuit filed?”
Legislative privilege cited
The district’s attorney, Michael Wren, said that board members possess a privilege that attaches to their legislative office, which protects their “speech and debate” from being questioned in a court proceeding, similar to members of Congress or the state Legislature. Wren also argued individual members can’t be held responsible for decisions taken by the board as a whole.
From the questions attorneys asked during the depositions, “it was clear their intent had to do with the decision-making process of the board,” Wren said.
“This was not a single person’s decision, it was the board’s decision,” he said. “This was most definitely a legislative act. If it’s not, then nothing the board does can be considered in that capacity.”
But Gossett said past cases had found such immunity to be “qualified,” and can be waived due to other considerations. She noted this was not a case of the school board passing a budget or deciding to build a new school, but a “specific action involving one individual.”
Wren said that Hefner could rely on other evidence to make his claim, including public comments made by board members in meetings or in the media.
But Knicely said he needed the ability to question board members directly, and that board members couldn’t selectively claim immunity after agreeing to turn over materials to the plaintiff and sit for depositions.
He called the initial lawsuit brought by the district “frivolous,” noting that as a private citizen Hefner could not affect the district’s accreditation, that Cognia had told the district it’s accreditation wasn’t at risk, and that the district’s contract with HeartEd was never breached, so Lexington-Richland 5 would be unable to prove it was “interfered” with by Hefner.
At one point, Gossett asked if the defense is claiming immunity as government officials, “Why are we here?” she said. “Couldn’t you make the argument that you can’t be sued at all?”
Wren said that is not the defense’s position, and that attorneys for the board had only objected to specific questions from the plaintiff’s side that touched on the board’s legislative process.
Gossett didn’t issue a decision Friday. Wren asked that the defendants be protected from having to answer questions on privileged issues. Knicely asked that the court rule the defendants have no such privilege, and that any such privilege can be waved by the individual board member and not by the district.
“There may be others (on the board) who would want to discuss it, and they can’t be instructed not to,” he said.
Only a week earlier, Hefner dropped from the lawsuit the Jaramillo Accounting Group, which previously conducted a controversial audit for the school district, after Hefner amended his suit last year to include the New Mexico-based accounting firm as a defendant.
Jaramillo’s report accuses Hefner of improperly awarding a “sole source” contract to an architectural firm when he was superintendent in 2016. A sole source contract can be awarded if a firm is the only company that can provide a service. Hefner responds that not only was the district aware of the contract, but the school board unanimously voted to approve it.
A court filing does not indicate the terms of a settlement between Hefner and the accounting group.
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