THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, March 9, 1996 TAG: 9603090390
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY ALETA PAYNE, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 168 lines
The School Board fired back Friday.
Ten days ago, a scathing special grand jury report called for most of the board to resign or face prosecution. Now, the seven members who were cited and a harshly criticized former member have signed off on a 12-page response that describes some of the grand jurors' conclusions as ``inaccurate,'' ``erroneous,'' and ``inappropriate.''
While offering future board members their prayers and good wishes, the eight also suggest that those who follow them take heed.
``They should be warned that they are now expected to be hardened skeptics skilled at financial analysis and adept at cross-examining witnesses,'' the response read. ``They should be warned that they assume their essentially volunteer duties at great risk. That risk includes the harsh second-guessing by a secret tribunal, criminal prosecution and public humiliation through attacks on their personal integrity.''
For board members who have often disagreed in public meetings, the response is a display of united outrage.
``Every board member's pride has been hurt because it's so unfair,'' said board member Joseph D. Taylor. ``We have no defense (in the grand jury report). They gather the information they want to gather . . . this is the only chance to have point-counterpoint.''
Attorney Joseph L. Lyle Jr., who has represented the board in matters related to the district's financial troubles, said he felt the special grand jury report needed a ``collective response'' because of its ripple effect in the community.
``The grand jury report was the first time that one coordinated document lashed out at the School Board in such a manner,'' he said.
Lyle wrote the initial draft of the reply, but said the board members who signed the document reviewed it and made suggestions.
``I would call it a joint effort,'' he said.
The response was signed by board chairwoman June T. Kernutt, vice-chairman D. Linn Felt, members Tim Jackson, Ferdinand V. Tolentino, Ulysses Van Spiva, Elsie M. Barnes and Taylor. Susan L. Creamer, who resigned from the board before the report's release, also signed the document.
All but Jackson and Tolentino have announced their plans to resign. Commonwealth's Attorney Robert J. Humphreys has made clear his intention to follow the special grand jury's recommendation to pursue malfeasance charges against those who don't quit the board.
Board members Karen O. O'Brien and Donald F. Bennis were not included because the jury did not call for their resignations, Lyle said.
The sharpness of the grand jury's tone and some of its conclusions surprised even courtroom veterans, but Humphreys said he felt board members are blowing the report out of proportion.
``No one likes to be called unfit for further service, but no one's being called a criminal either,'' he said. ``We're not talking about Jack the Ripper here. We're talking about basically good people who screwed up.''
But for board members, the pain of an implied conviction is still there.
``When a report is the purveyor of disinformation, how would he expect us to respond?'' Barnes asked. ``I don't know how he wants us to respond otherwise - Thank you for smearing our reputations?''
Board members said they felt that they were tried and convicted by a body not set up to do so, and without the rights that would have been afforded them during an actual trial - the ability to call their own witnesses, to question other witnesses called by the grand jury, and to have legal counsel argue in their defense.
``Do I think this was tantamount to a conviction? I think the combined report with Mr. Humphreys' follow-up threats - yes,'' said Felt. ``Do I think I deserve conviction? No I do not.''
``I think this is the unified stance of the board members,'' Felt said. ``We feel this is the only way the story's going to really be heard, not in a piecemeal fashion.''
Barnes said she supported a joint response to correct ``misinformation and disinformation'' included in the jury's report.
``I think they ignored a substantial amount of evidence that would not have supported the conclusions that were drawn,'' she said.
But Humphreys, who served as the special grand jury's legal adviser throughout the investigation, said the report's findings are based on the work of a group of impartial citizens.
``(Board members) certainly may not like the tone of (the report) and I can't blame them for that, but the facts are pretty irrefutable,'' he said.
Among the points the board members disagree with:
In a number of places, the report describes the board members as naive and trusting, and says they did not ask enough questions or demand answers when needed.
In their response, the board members say videotapes show they did ask questions ``repeatedly and aggressively'' and always received assurances from then-superintendent Sidney L. Faucette and director of budget development Mordecai L. Smith, who was also Chief Financial Officer at the time, that the district's financial health was sound.
The response also notes that the jurors acknowledge problems getting accurate information from Faucette and Smith even though they were under oath.
The jurors clearly reacted strongly to Smith's reinstatement on a 7 to 4 vote in early February.
Smith had been on paid administrative leave for much of the school year after the discovery of the district's financial problems. The board members argue that Smith was demoted upon his return and that his reinstatement played no part in creating the deficit the jury was investigating.
``Certainly the Grand Jury could reasonably conclude (as several board members did) that Smith should not continue in any capacity with the School Division. However, in determining whether the Board committed `malfeasance' in connection with the budget deficits, the decision to reinstate and demote Smith is far removed in time from the relevant events.''
The report describes board members as unapologetic and ``in denial.''
While board members say they have regrets and are sorry, the grand jury was not the place to voice such feelings.
``I didn't know I was supposed to go in there and apologize for anything,'' Barnes said.
Kernutt said she's been working for the last six months to see that problems were corrected. ``I thought our actions were supposed to show we were sorry,'' she said.
Humphreys said the board is correct, that the grand jury is not set up to try or indict anyone and neither is it set up for cross-examinations or defense counsels.
``To the extent that anyone wants to challenge their findings, they can do what Tim Jackson's done,'' Humphreys said. Jackson and Tolentino are the only board members to say they will not resign, thus facing a trial on malfeasance charges.
Humphreys does not believe the grand jury went beyond its responsibilities precisely because the jurors were not limited in their investigation.
``This thing could have started out as an investigation of the School Board and ended up investigating City Council and that would have been fine,'' he said. MEMO: BOARD'S SIDE
``Unfortunately, the report has already yielded several casualties.
Prominent citizens who have devoted their lives to their community have
resigned, not in recognition of a legal `malfeasance,' but for the best
of reasons: the preservation of harmony in the delivery of public
education. Nonetheless, they are stung by criticism which is excessive
and intemperate. Their reputation and standing in the community requires
that they respond.''
``The Report correctly records that Superintendent Faucette and Chief
Financial Officer and Budget Director Mordecai Smith repeatedly misled
the School Board and/or failed to inform the Board as to the true
picture of the Divsion's finances. Available videotapes abundantly
support the conclusion. However, despite the fact that most Board
members are laymen untrained in the intricacies of finance, the Report
charges them with `malfeasance' for failing to discover that the
financial information provided to them by highly paid full-time
professional administrators falsely depicted the Division's financial
condition.''
``Board members repeatedly and aggressively interrogated Faucette and
Smith on a regular basis. The best evidence of this is found in
videotapes of every Board meeting. These tapes were made available to
the Grand Jury. For some reason the Grand Jury ignored the significance
of this compelling evidence. The public should seek access to these
tapes.''
``The Report repeatedly alludes to the Grand Jury's irritation with
the Board's `unapologetic' manner. This is troubling. The Grand Jury
was created to determine facts, not accept apologies. Moreover, the
existence of potential criminal prosecution has a rather chilling effect
on the apology process. Those confronted by a Grand Jury are advised by
their counsel to answer truthfully, but to avoid seeking absolution. It
is ludicrous to suggest, as the Report does, that in the light of
hindsight Board members have not been embarrassed, or have not
questioned their own actions and have not regretted not being more
skeptical of the information they received. Certainly they have.''
SOURCE: Reply of Certain Members of the Virginia Beach School Board
to the Report of the Special Grand Jury
ILLUSTRATION: Virginia Beach School Board member Ferdinand V. Tolentino says
he will not resign, despite the threat of prosecution. A10
KEYWORDS: GRAND JURY VIRGINIA BEACH SCHOOL BOARD by CNB