Clayton took office as the head of the school system Wednesday, but a lawsuit in Morgan County Circuit Court is seeking to nullify the appointment of the former James Clemens High School principal on the grounds that the board violated the state Open Meetings Act and board policy during the hiring process.

A nearly four-hour hearing Tuesday on the plaintiff’s request that Clayton’s appointment be invalidated ended with Circuit Judge Stephen Brown stressing that he did not know how he would rule, but that “if your superintendent makes some really drastic decision and I remove him from office … be advised that you may have to unwind something … and it will just be making it harder on everybody if that happens.

This caution followed a Dec. 12 order in which Brown denied the plaintiff’s request to block the appointment before an evidentiary hearing had been held but noted “the Court reminds Defendants that major decisions made now could be impacted by future decisions of the Court.”

Brown made no ruling at Tuesday’s hearing, but instructed the parties to file briefs Jan. 20.

The plaintiff, Bruce Wilhite, an Air Force veteran and a pilot with Delta, has two daughters in Hartselle City Schools. He has two basic legal arguments in seeking to set aside Clayton’s selection as superintendent, both tied to the Open Meetings Act.

The first argument is that the preliminary agenda for the Nov. 15 meeting in which the board, in a 3-2 vote, selected Clayton from six finalists was not posted until the day of the meeting. A Hartselle City Schools policy precludes anyone from speaking at a board meeting unless they request to do so at least five days before the meeting. Wilhite and his lawyer, Russ Crumblee of Huntsville, argue this effectively prevented any public input on the hiring because the public had no way to know five days in advance that the vote on the superintendent was taking place.

The second argument is that the board circumvented the Open Meetings Act by holding secret serial meetings with less than a quorum during the selection process.

In one of those sets of conversations, individual board members met with board attorney William Sanderson, who handled the initial phases of the hiring process, and ranked their top five candidates from among 18 applicants. The lawyer then used the board members’ selections to come up with the six candidates who received interviews.

In another series of conversations the plaintiff described as serial meetings, board President James Joy spoke with one board member at a time about which of the six interviewed candidates each board member preferred. The plaintiff argues that these discussions should have been held in a properly noticed public meeting. The formal vote on Nov. 15, Wilhite asserts, merely finalized the results of the illegal serial meetings that took place in the days before.

The Alabama Open Meetings Act forbids serial meetings, which it defines as a series of meetings with at least two board members but less than a quorum where the members “deliberate specific matters that, at the time of the exchange, the participating members expect to come before the … full governmental body at a later date.”

Only one board member, Daxton Maze, testified at Tuesday’s hearing.  Crumblee suggested that at least one other board member dodged a subpoena, an allegation Hartselle City Schools’ lawyers denied.

Maze testified that he was contacted by the board president on Nov. 12, three days before the vote, and Joy asked for his opinion on the candidates. He testified that in that five- to 10-minute conversation Joy indicated he had already had similar conversations with board members Randy Sparkman and Monty Vest.

“The board president was inquiring to find out the opinions or preferences for the candidate to be recommended for superintendent. … He inquired as to what my preference was. I stated that. He said there may be some differing opinions,” Maze testified.

Maze was one of the two board members who voted against Clayton’s appointment. Maze testified he voted against Clayton because he “felt there was one or two candidates to better fit the needs of the Hartselle City school system.”

Crumblee focused on a two-year Madison City Schools’ policy, implemented by Clayton at James Clemens High, requiring students to wear masks to protect against COVID. He said the mask mandate at Hartselle City Schools ended a year earlier than Madison’s.

At another point Crumblee said opposition to Clayton was based in part on the new superintendent’s “liberal political views.”

Carl Johnson, a lawyer for some of the defendant board members, objected to discussions about Clayton’s qualifications for the job.

“Counsel is trying to re-try the selection process in the courtroom,” he said.

Crumblee persisted.

“There are many issues with the superintendent Dr. Clayton involved in how he ran the program at Madison City Schools that are in direct contradiction to Mr. Wilhite’s plan for how he will raise his children,” Crumblee said. “He can’t raise his children as he likes if the person who is responsible and has all the power and authority to implement school policies … would be in direct opposition to how he wants to raise his children.”

The other vote against Clayton was by board member Venita Jones. Jones did not show up at Tuesday’s hearing, but Wilhite testified she had told him she would come. That changed the morning of the hearing, he said, when she called and said she had been told by her lawyer not to show up.

A portion of a text conversation between Jones and Wilhite was also read in court.

“I feel very strongly that the selected candidate was definitely determined before the meeting when we voted. The people of Hartselle, and especially those with children who are in the system, were not asked for their input,” according to the text attributed to Jones.

Maze testified he asked Joy to delay the Nov. 15 meeting, in part to allow more time for public input on the superintendent candidates, but Joy responded it “was time to move on.”

A possible obstacle for the plaintiff is that state law requires that lawsuits alleging a violation of the Open Meetings Act must be filed within 21 days of when the violation became public in order for the court to invalidate the action taken by the board. Wilhite’s lawsuit was filed Dec. 9, 24 days after the Nov. 15 meeting.

While the board voted to begin contract negotiations with Clayton at the Nov. 15 meeting, it did not hire him until a Dec. 13 meeting after contract negotiations were complete. The plaintiff has not alleged there were Open Meetings Act violations at this meeting, and Wilhite attended the meeting and spoke in opposition to the hiring of Clayton.

Wilhite said 557 people have signed an online petition titled “Stop the Hartselle superintendent hire.” The petition objects to the lack of public input in the hiring process, and criticizes the board for failing to ask the candidates questions about the importance of in-person learning, their views on mask mandates and “the role and inclusion of ideological curricula in our school system.”

Wilhite testified that the alleged serial meetings and the lack of advance notice that a superintendent would be selected at the Nov. 15 meeting are part of a pattern.

“I was operating under the assumption that these were good people who simply made an oversight,” he said of the board members. “As the last two months have gone on it’s become apparent to me that there’s a blatant disregard for the will of the public. … There was a pervasive attitude of ‘we know better than the citizens of Hartselle.’”