This story originally published online at N.C. Policy Watch. 

State Treasurer Dale Folwell has received permission to hire outside counsel to represent the treasurer’s office in the Leandro case instead of depending on State Attorney Josh Stein who he contends has a conflict in the matter.

Folwell, a Republican, State Controller Linda Combs, and state Budget Director Charles Perusse have been ordered by Superior Court Judge David Lee to release state money to fund the first two years of a state-wide school improvement plan that grew out of the long-running Leandro court case.

Lee set a 30-day deadline for the state to comply. Folwell has asked Stein’s office to seek an extension to the deadline.

“The Attorney General’s office has responded that they are researching the appropriate mechanism and options to do so,” Folwell said.

State Republicans leaders have said Lee has no authority to issue such an order.

Stein, a Democrat, issued a Memorandum of Law earlier this month on behalf of the state affirming the court’s authority to do so.

“If there exists a conflict between legislation and the Constitution, it is acknowledged that the Court ‘must determine the rights and liabilities or duties of the litigants before it in accordance with the Constitution, because the Constitution is the superior rule of law in that situation,’ ” Stein wrote, citing Green v. Eure (1975).

Folwell believes Stein’s law memo affirming the court’s authority to order the state to fund the Leandro plan represents a conflict of interest.

Meanwhile, Combs has asked the N.C. Court of Appeals to dismiss the order because the court “lacks jurisdiction to order the Controller to take any action.” The State Controller is the state’s chief fiscal officer and is appointed by the governor to seven-year terms. Combs was first appointed in 2014 by Republican governor Pat McCrory.

Robert N. Hunter Jr., a Republican judge who formerly sat on the Court Appeals and state Supreme Court, represents Combs. If Combs did release funds without the General Assembly’s authorization, she could land in legal trouble, Hunter wrote in court documents.

“The Petitioner or her staff would be subject to these penalties in the event she were compelled by the Order to comply with its term,” the document said. “Compliance with the court’s order would violate the Controller’s oath of office.”

The state’s landmark school funding case—Leandro v. State of North Carolina—was brought by five school districts in low-wealth counties that argued their districts did not have enough money to provide children with a quality education.

In 1997, the state Supreme Court issued a ruling, later reconfirmed in 2004, in which it held that every child has a right to a “sound basic education” that includes competent and well-trained teachers and principals and equitable access to resources.

Lee hired WestEd, an independent consultant to develop recommendations to improve North Carolina’s public schools. The public school improvement plan before the court is largely based on WestEd’s report. The recommendations include staffing each classroom with a competent, well-trained teacher; staffing each school with a competent, well-trained principal and identifying the resources to ensure all children have an equal opportunity to obtain a sound, basic education, among others.

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