Published: August 14, 2008 03:05 pm         

Board of Education loses federal lawsuit

CUMBERLAND - A federal judge on Thursday ruled the Allegany County Board of Education is responsible for $112,782.86 in legal fees and expenses incurred by Cumberland radio station WCBC in a yearlong court battle over the constitutional right of free speech.

The lawsuit in U.S. District Court was filed by WCBC after Superintendent of Schools Bill AuMiller wrote in an Aug. 13, 2007, letter that the school system expressed its intent "to dissolve the existing partnership between the Allegany County Public Schools and WCBC Radio."

The letter informed WCBC that the board would no longer support its Student Salute scholarship program with Frostburg State University and blocked the radio station's access to the press boxes at Greenway Avenue and Mountain Ridge stadiums.

WCBC alleged the action was taken in response to "unfavorable or critical reporting" of school-related activities. The radio station filed suit Aug. 28.

U.S. Magistrate Paul W. Grimm reduced the amount originally petitioned for by the radio station's attorney, James Astrachan of Astrachan, Gunst and Thomas of Baltimore.

Astrachan's fees originally totaled $136,278.36. Gary Hanna, attorney for the board of education, said he was "pleased" with the amount of the reduction. The awarded amount includes $109,085.50 for attorneys fees; $3,697.36 in expenses; and $3,240 in expert fees, for a total of $112,782.86 - a reduction of $23,495.50 from what Astrachan requested.

"They filed a fee petition, with exhibits," Hanna said. "We had to pick and choose portions of it we thought were excessive. We were pleased the judge agreed to our critique of their bill."

According to the 10-page court ruling, Grimm said the most prevalent of the 12 factors used in determining "reasonable attorneys fees" include: the time and labor required; the skill requisite to properly perform the legal service; the customary fee; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation and ability of the attorneys; and awards in similar cases.

Part of the reduction came as a result of Astrachan's firm preparing an amendment to the complaint that was never filed. Grimm agreed with Hanna that the board should not be charged for that expense.

The judge's complete ruling can be viewed online at www.times-news.com.

The amount doesn't include attorneys fees incurred by the board for Hanna, the outside firm of Reese and Carney, of Columbia, retained early in the process, as well as the board's insurance company attorneys of Eccleston and Wolf. Combined, those fees totaled $42,000 through January. It's likely the fees have increased since then.

Delegate Kevin Kelly, critical of the entire process in which the board handled the radio station and the associated cost, said the amount is confirmation of what he suspected when the consent decree was signed in February.

"The unconstitutional, vindictively inspired actions" which resulted in the lawsuit have caused the board to squander "valuable educational dollars," Kelly said.

He said it's a poor way for the board to thank the local legislative delegation for its role in returning state tax dollars to Allegany County.

Board member Jeff Metz said the board was "happy" that the "unfortunate process" was coming to a close.

"We're looking to moving forward with our relationship with WCBC," Metz said. "We're able now to continue to focus on our No. 1 priority, which is the education of students of Allegany County."

Metz said he couldn't cite the amount budgeted for legal expenses or if it would be necessary to pull funds from another budget. He referred finance-related questions to Randy Bittinger, board finance director.

A phone call to Bittinger on Thursday was not returned. Neither were calls returned by Bill AuMiller, superintendent of schools, or Fred Sloan, board president, before deadline. AuMiller has not spoken publicly about the lawsuit since the issue arose a year ago.

Contact Kevin Spradlin at kspradlin@times-news.com.