Douglas County attorney plans legal action after school board missed deadline

Clockwise, from top left: Jennifer Tomkins Kirshenbaum, Mary Morrissey, Freddie Gray, Nicole Nash, Sarah Brumfield and Danyelle Baratta.


A decision announced by Douglas County Attorney Don Kleine on Monday opens a new chapter in the growing turmoil facing the Omaha school board.

Kleine said Monday he plans to take legal action this week that could result in a special election to fill half of the 12-person board. The board waited too long, he said, when it swore in six members on Jan. 7, the first Monday of the month.

Kleine's actions come as a bill calling for a special election of a new, nine-member OPS board is hurtling toward a vote in the Legislature.

Don Kleine

Either scenario could lead voters back to the polls this spring, just a few months after voting in November on six of 12 seats on the current board.

Kleine's actions stem from a state law that says new members must be sworn in before the first Monday in January or the election is void and the remaining board members must fill the vacancies. In this case, however, not enough members would remain to appoint replacements.

Recent actions of the school board, including approving a contract for incoming superintendent Mark Evans, would most likely stand even if a judge eventually voids the election of half of the board.

Kleine said he discussed that issue with lawyers in the Nebraska Attorney General's Office while researching whether six Omaha board members were legally sworn in earlier this month.

In regard to the recent board decisions, members could be ruled the district's “de facto” leaders because they had been elected and sworn in as members, said Kleine.

Once Kleine files his action, a Douglas County District judge would decide whether to hold a hearing at which Omaha Public Schools officials could explain their actions.

OPS plans to review Kleine's filing and decide on its next steps, spokesman David Patton said. Board President Marian Fey did not return calls seeking comment.

But, depending on how quickly the court handles Kleine's action, the whole matter could become a non-issue because of Legislative Bill 125, which would shrink the board from 12 to nine members and make all board members run for election this spring.

A committee voted Friday to advance the proposal to the full Legislature.

State Sen. Scott Lautenbaugh, who introduced the measure, said the bill could be debated on the floor Wednesday or Thursday.

A bill can move from committee approval to final passage in less than 10 days. LB 125 has an emergency clause, meaning it would take effect immediately upon being signed by the governor.

If LB 125 passes, elections would be held in April and May, and the nine new members would take their oaths in June.

“There's no way the court action really can affect the passage of the statute,” Lautenbaugh said Monday.

No one, however, is sure what could happen between now and April.

For instance, if a judge decides that half the board was sworn in illegally and voids their election, the board would have six members.

The 12-member board requires a majority of members to be present to fill any vacancies. Without the six who were sworn in earlier this month, the board would be one short of a majority.

Under that scenario, OPS would have to ask the Nebraska secretary of state to call a special election.

It generally takes the secretary of state 60 to 90 days to prepare a special election, from notification to the day of the election. If that office received notice in March and LB 125 has already passed, it's unclear what the office would do next.

“I don't know at this point,” said Laura Strimple, spokeswoman for the secretary of state.

They might have to talk with their legal counsel about how to proceed, she said.

Lautenbaugh said of Kleine's legal filing, “It could become kind of moot at that point.”

Before announcing his plans Monday, Kleine consulted with Nebraska Attorney General Jon Bruning and Dale Comer, assistant attorney general, who researched the law for Kleine.

A Douglas County attorney investigator also interviewed former OPS board President Freddie Gray on Jan. 17 and Jan. 18 to clarify when the board swore in its new members.

The board accepted Gray's resignation at its regular meeting Jan. 23.

Gray told an investigator that she and Mary Morrissey were sworn in during the day Jan. 7, Kleine said.

Kleine also obtained the minutes of the board's Jan. 7 regular meeting. Four new board members were sworn in just prior to the meeting. They are Sarah Brumfield, Danyelle Baratta, Nicole Walker-Nash and Jennifer Tompkins Kirshenbaum.

“They didn't comply with what the law is and sort of created this problem with their inaction,” Kleine said. “It's frustrating to have to move forward on this.”

Brumfield, newly elected in District 4, said Monday, “I'm going to do whatever's necessary to keep my seat.”

If the court action results in a special election, Brumfield said, she will run again.

Tompkins Kirshenbaum said it appears that last fall's legal election may be overturned on “a technicality.”

“New board members have been taking their oath at first meeting for the past 30 years,” she said. “Why is this being brought up now? It seems an attempt to overturn the results of the November election.”

Morrissey declined to comment on the filing until she sees what it says and who it is filed against. “He has to do his job,” she said of Kleine. “That's fine.”

Baratta and Walker-Nash did not return phone calls Monday.

Kleine said he recognizes that some could see the timing of the swearing-in as a technicality. But as he sees it, he said, he has two options: ignore the law or file legal action.

“The law is very clear,” he said.

State law has outlined when OPS board members should be sworn in and consequences for district since 1982.

P. Scott Dye, an attorney for Baird Holm, an Omaha law firm that has represented OPS since the 1960s, declined to comment Monday.

Other state laws that cover smaller Nebraska districts mandate that new board members begin their terms on a certain day, but no law regarding the swearing-in of new school board members is as specific or as punitive as the state law that covers OPS.

World-Herald staff writer Joe Dejka contributed to this report.

Contact the writer: 402-444-1074, jonathon.braden@owh.com; twitter.com/jonathonbraden

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