Two years ago, UNC-Chapel Hill was embroiled in tumult over its controversial decision to hand over funds, along with its “Silent Sam” statue, to a neo-Confederate group. Now, new documents obtained under a public records request to the state attorney general show that the offices of North Carolina governor Roy Cooper and attorney general Josh Stein signed off on a major increase in the amount an outside lawyer was allowed to bill on the issue, to the tune of $250,000.

The state’s two top Democrats authorized that payday in January 2020 to the outside law firm of Womble Bond Dickinson LLP and attorney Ripley Rand. The move raises more questions around state leaders’ conduct that nearly paved the way for $2.5 million and the infamous metal statue to be given to the Sons of Confederate Veterans (SCV). In February 2020, following weeks of protests and scrutiny from civil rights groups and attorneys, judge Allen Baddour, the same judge who had originally approved the deal between UNC and the SCV, ultimately threw out the legal settlement.

The future of Silent Sam had vexed campus and state leaders since protesters toppled the statue from its perch in 2018. But the original settlement between the SCV and the university—that, details would later reveal, had all the markings of a sordid back-room deal—was enough money to legitimize and permanently endow an organization avowed to spreading and celebrating the white supremacist mythology of the Lost Cause.

Elizabeth Haddix, the managing attorney for the Lawyers’ Committee for Civil Rights Under Law, which was part of the successful push to have the SCV deal scrapped, says the money the state authorized to spend raises questions.

“Those are public dollars going to pay a private firm for legal expenses,” she says. “What did Mr. Rand spend his time on? What did he bill for?”

Rand has not responded to emailed questions posed about his firm’s work. Stein’s office also could have gotten directly involved in the case if it had chosen to do so, including while attorneys sought to unwind the settlement, Haddix says.

Haddix says her organization tried to engage Stein at several points in seeking to get the settlement overturned as they formally filed court motions to intervene in the case.

“We were extremely disappointed about how Attorney General Stein responded to this,” Haddix says. “Given that the public money issue had already been a major issue in the case, the lack of transparency, the obvious collaboration between the [Board of Governors] and the SCV, Ripley Rand’s personal relationship with Judge Baddour, and the improper back-channel communications that happened all around the case and before the consent order was entered was a real concern.”

Uproar on UNC’s campus

After the university announced the SCV deal the day before Thanksgiving in 2019, an uproar quickly ensued and spiraled: a major donor pulled funding from the university; UNC’s student newspaper, The Daily Tar Heel, sued the Board of Governors (BOG) for an alleged violation of the state’s open-meetings law, and national civil rights groups pushed to overturn the entire SCV agreement amid protests on campus decrying #silentsham.

The new documents—released more than two years after a December 2019 request and reported first last week by Nick Ochsner of WBTV—show those offices, at least officially, didn’t give the issue much thought.

“Due to the timing of the matter, the availability of our attorneys, and Mr. Rand’s familiarity with the issues involved, it would be impracticable for this office to provide the required services,” chief deputy attorney general Alexander Peters wrote to Cooper’s general counsel, William McKinney, who signed off on the new quarter-million cap.

Greg Doucette, a Durham attorney who first blew the whistle on the irregular settlement between the SCV and the BOG by pointing out that the lawsuit was filed and settled within minutes, says Stein in particular had a duty to step in.

“I think it was malpractice by the attorney general’s office,” Doucette says. “The whole thing was corrupt as fuck.”

Doucette says that a criminal investigation is warranted. He believes that Rand’s statements in court and by university officials in legal filings constitute a “sham legal proceeding.” The so-called settlement, he says, was a way for the university to make a deal without the required transparency for the allocation of university funds.

Cooper’s press secretary Jordan Monaghan wrote in an emailed response to a series of questions that the governor’s office “routinely signs off on requests for outside counsel when recommended by the North Carolina Department of Justice.”

And Stein spokesperson Nazneen Ahmed wrote in an email that the attorney general’s role was limited to assessing only if UNC and the BOG were legally allowed “to enter the agreement.”

“We learned about the agreement the University and Board of Governors negotiated in this matter only after it occurred,” Ahmed added. As to whether Stein should have intervened more forcefully given his professed interest in civil rights issues and why the office deemed the agreement legal, Ahmed said, “Without authorization from UNC, we’re not allowed to discuss privileged matters relating to this, including any attorney-client communications or legal conclusions of lawyers in our office.”

Stein’s office cannot open a criminal investigation into the case because the AG’s office “represents state agencies and universities as clients,” Ahmed wrote; any criminal investigation would fall to local district attorneys. (Doucette says prosecutors in Orange and Wake Counties would have jurisdiction but he is not aware of any ongoing investigation).

Legislation goes around governor, AG for legal work

UNC and the BOG will get even less oversight and scrutiny in the future when it comes to legal work. A provision quietly tucked into a coronavirus relief bill, signed by Governor Cooper in September 2020, states that UNC’s BOG “may authorize the expenditure of funds to hire private counsel to represent the Board, The University of North Carolina, and any constituent institution.”

Monaghan, Cooper’s spokesperson, wrote that “legislators, without input or request from our office, included language in pandemic relief legislation allowing the UNC System to hire outside counsel without seeking that approval in the future.” Stein’s spokesperson said their office was also not involved in changing the university system’s legal oversight process.

Most of the legal work had likely been completed by the time officials in the governor’s and attorney general’s offices approved both the initial cap of $125,000 and the increase to $250,000, says Hugh Stevens, the attorney who represented The Daily Tar Heel in its lawsuit alleging a violation of the state open-meetings act.

“I think the way it’s supposed to work is no lawyer should be hired or do one minute’s billable work without first having their employment being signed off on by the attorney general or the governor,” Stevens says.

One of the primary legal issues at hand was whether the SCV ever had a claim to Silent Sam in the first place. The university was likely well aware of the issue, as it first gave $74,999—one dollar short of a requirement that would have triggered a review by the attorney general—to the SCV in a separate transaction. The university has admitted that a portion of those funds were spent to buy rights to the statue from the United Daughters of the Confederacy.

A university historian later clarified that the SCV had no legal rights to Silent Sam and, thus, a court could not award the group the property as part of any legal settlement. Even the SCV’s leader was stunned at the turn of events, writing in a letter to its membership leaked to Doucette and later made public that “what we have accomplished is something that I never dreamed we could accomplish in a thousand years, and all at the expense of the University itself.”

Stevens’s view is more charitable than Doucette’s, as he says that decisions judged in hindsight are often cast in a harsh light when it comes to how the university and state leaders dealt with Silent Sam.

“It’s easy to look back and see where things should have been done differently. Somebody should have been a lot more diligent with research into whether SCV could legally retain title,” Stevens says. “I don’t have any problem with the fact that the system hired Womble to handle this matter. Ripley is a good lawyer. His colleagues are good lawyers and they have a well-developed reputation. The only reason I think it’s an issue at all is it’s a lot of money and it turned out to be for nothing.”

Allen Baddour, the superior court judge who originally agreed to the settlement and who WBTV reports was meeting and texting with those involved before the settlement was filed, eventually threw out the deal, and a bulk of the money was never allocated after weeks of protests.

Baddour didn’t respond to several questions but did say in an email that he has “previously released all public records I have regarding the case.” Baddour is running for reelection this year and is unopposed thus far.

Both the Baddour and Rand families are considered “royalty” in North Carolina legal circles and know each other well, Doucette says.

In the end, Haddix says outside of her official role in the case, she reacts to events as a North Carolina attorney. “The fact is there are procedural rules in court, professional ethical obligations that members of the court and judges have to comply with. Based on the evidence that I saw all of those rules were thwarted in this case by a number of different individuals who were never held accountable.”

Doucette, a criminal defense attorney, says the case is another example of America’s two-tiered justice system.

“I hate to say it but I think that’s politics,” he says. “You have people getting away with stuff that for any normal person would put you in jail for 20 years.”

Civil rights lawyers, including a group known as the Black Pioneers, ultimately intervened to save the university from itself. The Lawyers’ Committee asked on behalf of its clients, led by student De’Ivyion Drew, that the $2.5 million go toward campus diversity efforts, though some had already been spent in legal fees. There is no indication that university leaders are looking at reallocating those funds.

North Carolina’s two top Democrats are hardly the biggest villains in the Silent Sam episode. The parties to the deal were Rand and university attorney Tom Shanahan, SCV lawyer Boyd Sturges, and UNC-CH vice chancellor for public affairs Clayton Somers, The Daily Tar Heel reported. BOG chairman Randy Ramsey defended the deal in its aftermath. There may have been other players involved that have not been revealed.

But in the end, attorneys argue, state leaders with oversight responsibilities should have intervened.

“There should have been a lot more transparency,” Haddix says, “and there should have been a lot more questions asked by these public officials.” 

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