On October 12, 2023, the seven-member board that oversees public schools in Escambia County, Alabama, met to consider renewing Superintendent Michele McClung's employment contract. The board had narrowly rejected a motion to renew McClung's contract at a meeting the previous August, and it did not look like the members in the majority, who had concerns about her performance, were inclined to change their minds. Steve Billy urged them to reconsider, effusively praising McClung and arguing that board members who voted against the new contract would be violating state law by forsaking their oaths of office.
That speech was pretty weird, especially because Billy was not just an ordinary citizen. He was (and is) Escambia County's district attorney, and he would later use the powers of that office to file patently frivolous criminal charges against two board members who voted against the new contract, along with a school board employee and a local newspaper reporter. Those charges and the ensuing arrests, Billy's targets argue in a federal lawsuit they filed on Wednesday, violated their First and Fourth Amendment rights.
"Americans must be able to participate in their government without fear that they'll be labeled as political enemies, investigated, and punished for exposing corruption," says Institute for Justice attorney Jared McClain, who represents the plaintiffs. His clients "were just doing their jobs and what they knew was right," McClain adds. "But because that got in the way of what the district attorney and sheriff wanted, they ended up in jail. We need the courts to hold government officials accountable when they abuse their power."
'I Do Control the Grand Jury'
Billy's office said he was in court on Thursday and unavailable for comment. But as he told it at the time, he also was just doing his job by intervening on McClung's behalf. "I would normally not get involved with things of this nature, as far as an employment situation," he told the school board. But he averred that "some board members" had launched "vicious personal attacks" against McClung, implying that "she was going to be indicted by a grand jury" as a result of a state audit.
Not so, Billy said: "I don't control much in Escambia County, Alabama, but I do control the grand jury of this county, and I can tell you this lady right here [McClung] is not going to be brought before a grand jury because there's nothing to bring before a grand jury." Then he added, "There are some other matters that will be brought before a grand jury that I'm not at liberty to discuss because by law that's a secret investigation."
What did Billy mean by that? He and Escambia County Sheriff Heath Jackson had already provided some clues.
At a local Republican Party meeting on September 18, 2023, according to the lawsuit, Jackson "said that he investigated the rumors about the audit and confirmed for himself that McClung had done nothing wrong." He "told the meeting that he would arrest McClung's detractors on a Friday so that they couldn't bail out until Monday and would have to 'eat his hotdogs all weekend.'" After that meeting, the complaint says, Jackson "confided in a community member that, if the vote for the superintendent did not 'go the way it should,' then 'the wrath would be coming down on some school board members.'"
I called Sheriff Jackson's office to ask about that meeting and the other allegations in the lawsuit. I left a message and will update this article if and when I hear back.
The day after the GOP meeting, Billy issued a subpoena to school board CFO Rochelle Richardson "and/or" Ashley Fore, the school district's payroll supervisor and one of the plaintiffs in the lawsuit. The subpoena sought "certified copies of any and all checks written to employees and labeled as 'COVID' payments or 'COVID BONUS' for the years 2020-23." According to the lawsuit, "the bonuses that the subpoena referenced were supplemental payments made with COVID-relief funds that the Board authorized under the prior administration. The payments went to seven Board employees from the prior administration who McClung had not yet managed to push out."
The demand for those documents, labeled "DISTRICT ATTORNEY'S SUBPOENA," was signed by Billy himself and invoked his authority under Section 12-17-184 of the Alabama Code, which empowers a district attorney to issue subpoenas "at any time the grand jury is not in session." Nothing in the subpoena indicated that it was confidential.
After Sheriff Jackson served Billy's subpoena on Fore, she shared it with Richardson, her boss, who in turn shared it with Cynthia Jackson, one of McClung's critics on the school board and another plaintiff in the lawsuit. Cynthia Jackson, who suspected that not everyone on the board knew what was going on, shared the subpoena with the other three members who had voted against renewing McClung's contract. Those board members included Sherry Digmon, who is co-owner of the Atmore News, a weekly newspaper in Escambia County, and the lead plaintiff in the lawsuit against Billy and Sheriff Jackson, which also names four sheriff's deputies. Digmon later forwarded a copy of the subpoena to Atmore News reporter Don Fletcher.
Two days after Billy issued his subpoena, he sent the school board a letter that anticipated the comments he would make at the board meeting on October 12. He complained about "statements spread in the community" with "no basis whatsoever" that "are motivated by a personal agenda or some type of personal gain." Specifically, he claimed some board members "stated that money was misspent or misappropriated and that the matter would be presented to a Grand Jury and that the School Board Superintendent, Michele McClung, could be indicted and arrested."
Billy said he had confirmed with the state auditors that "there was nothing that should be presented to a Grand Jury," adding that "I do have complete control of the Grand Jury in Escambia County, Alabama." Although there was no basis for charging McClung, he said, he might bring other issues before the grand jury that he was "not at liberty to discuss." He also averred, as he would again at the school board meeting, that members who voted against McClung would be breaking the law by violating their oaths of office.
Unwarranted Warrants
On October 20, about a week after the school board again voted against renewing McClung's contract, Deputy Arthur Odom obtained warrants authorizing the seizure of cellphones from Digmon and Cynthia Jackson. Odom said Billy had subpoenaed Digmon's phone records, which showed that the two board members had exchanged 40 calls between September 11 and September 28. It was not clear how many of those calls were actually completed or what the women might have discussed. But Odom claimed the calls were evidence that they had engaged in "private conversations" regarding the superintendent vote, which he claimed would violate Alabama's Open Meetings Act.
That statute, the lawsuit notes, "does not apply to private conversations between two school board members." It "applies only when a quorum of a governmental body is present, and two school board members do not establish a quorum." The alleged violation, in short, was "unsubstantiated and factually impossible."
Adding to the absurdity, there was no reason to think the cellphones would shed light on what the two board members had discussed. The warrants nevertheless authorized broad access to all sorts of personal and professional information, potentially including Digmon's work as a journalist. The complaint notes that "the officers enforcing the warrant were not required to limit which applications they checked, there was no temporal limit, and there was no keyword-search or 'preview search' limitation to ensure that officers viewed only responsive files."
Those warrants were not based on anything resembling probable cause to believe evidence of a crime would be discovered. But at least the cops went through the motions of obtaining judicial permission. A week later, Odom and Deputy Kevin Durden seized Fore's cellphone without a warrant after bringing her to the sheriff's office for questioning. "The officers told [Fore] that they needed to take her cell phone as part of their investigation," the complaint says. Fore "asked whether the officers needed to get a warrant or a subpoena to take her phone, and they told her they did not need a warrant." Fore "believed the officers were telling her the truth. (They were not.)"
The cops took Fore's cellphone the day after Fletcher published an Atmore News article about the October 12 school board meeting at which Billy had argued that declining to renew McClung's contract would be illegal. Fletcher quoted Billy's remarks and noted his subpoena for records regarding COVID-19 payments. According to Billy, Fletcher's reporting was illegal. Billy also thought (or claimed to think) that Fore, Digmon, and Cynthia Jackson had committed felonies by sharing the subpoena.
Fore was arrested first, the day after her cellphone was seized. According to the criminal complaint, she violated Section 12-16-215 of the Alabama Code, which says "no past or present grand juror, past or present grand jury witness or grand jury reporter or stenographer shall willfully…disclose or divulge or cause to be revealed, disclosed or divulged, any knowledge or information pertaining to any grand juror's questions, considerations, debates, deliberations, opinions or votes on any case, evidence, or other matter taken within or occurring before any grand jury of this state."
As the complaint notes, there were several obvious problems with that charge. First, "there was no grand-jury evidence for Ashley to reveal." Second, "there was no grand jury." Third, "Ashley was not a grand juror, grand-jury witness, or grand-jury reporter." Fourth, "Ashley was not sworn to secrecy and did not violate that oath." Fifth, "the September 19 'DISTRICT ATTORNEY'S SUBPOENA' that DA Billy issued was not grand-jury information and was not confidential. Nothing on the document indicated that DA Billy issued it as part of a grand-jury investigation or that it was otherwise confidential."
Fore was arrested anyway on October 27, forcing her and her husband to cancel a nonrefundable "trip to Disney World followed by a cruise." She was "booked into jail" on a Friday afternoon, shackled, and strip-searched "in full view of anyone who walked by." Confounding Sheriff Jackson's plan to keep her in jail over the weekend, she managed to arrange a late-afternoon bail hearing.
'The Most Outlandish Situation'
Billy's other targets suffered similar indignities, based on the same bogus charge. Fletcher was arrested the same afternoon as Fore, for the alleged crime of accurately reporting on Billy's investigation. Digmon joined him in jail shortly afterward.
After Digmon and Fletcher were arrested, media lawyer Theodore J. Boutrous described the charges as "extraordinary, outrageous and flatly unconstitutional." Although "it's illegal for a grand juror, witness or court officer to disclose grand-jury proceedings," The Washington Post noted, "it's not a crime for a media outlet to publish such leaked material, provided the material was obtained by legal means." And in this case, which involved a district attorney's subpoena, the information did not even constitute a grand jury leak.
The conditions imposed on Digmon and Fletcher when they were released on bail highlighted the First Amendment implications of the cases against them. The judge who approved their release told them they were to have "no communications about ongoing criminal investigations including schools and other." As a result of the charges, the complaint notes, Digmon and Fletcher "had to restrict their protected speech about McClung and about the Defendant law-enforcement officers." It adds that all of the plaintiffs "still restrict their public speech because Defendants still hold the very positions of power that they abused in this case."
Cynthia Jackson's arrest was delayed until December 4. "On information and belief," the complaint says, "Cindy was not arrested at the same time as the other Plaintiffs because she had knee-replacement surgery that week and pushing a grandmother into jail in a wheelchair would have elicited too much sympathy." But "because she was still recovering from knee surgery, deputies had to help hold her upright as she stood on a small stool to have her mugshot taken."
Digmon was arrested again on November 1. This time she was accused of violating the Alabama Ethics Act by selling ad space in her newspaper to the school board, a longstanding practice that had been approved by the assistant general counsel for the Alabama Ethics Commission.
Billy also sought to remove Digmon from the school board by obtaining a grand jury impeachment (one of his more obscure powers as a district attorney), partly based on the same allegations of self-dealing. Further illustrating his "complete control of the Grand Jury," the impeachment also charged Digmon with "willful neglect of office" because she opposed renewal of McClung's contract and because she "refused to publish articles which promoted the school system and the Superintendent."
Prior to this case, the complaint notes, "the district attorney in Escambia County [had] never impeached anyone," and "no county school board member in Alabama" had been impeached in the previous 18 years. The earlier case involved a Mobile school board member who "misused over $9,000 in school funds to purchase Mardi Gras trinkets and 7,000 Moon Pies without authorization and then, allegedly, drove drunk on Mardi Gras, ran over the foot of an eight-year-old child, and fled the scene of the accident."
As far as Digmon's lawyers can tell, "no county school board member in Alabama was
ever impeached for her political opposition to a superintendent." Sally Smith, president of the Alabama Association of School Boards, called it "the most outlandish situation" involving outside influence on a school board that she had seen in 37 years with the organization. "As a matter of public policy," Smith said, she was concerned about "questionable criminal charges being used to intimidate school board members voting their conscience."
Billy dropped the impeachment in February, saying "successful prosecution of [Digmon's] pending felony cases would have the same result." The day before, Billy had recused himself from those cases, suddenly acknowledging "a legal and a personal conflict." Both of those decisions came after the school board agreed to buy out the remainder of McClung's existing contract.
'A Convoluted Conspiracy of Retaliation'
The Alabama Attorney General's Office took over the cases against Digmon and the others. Last April, a state judge granted Assistant Attorney General Thomas Govan Jr.'s motion to dismiss all of the charges. He dismissed them with prejudice, meaning they cannot be brought again.
"The grand jury secrecy law [Digmon and Fletcher] were charged under was plainly inapplicable to journalists, as opposed to grand jurors and others with direct access to grand jury proceedings," Seth Stern, director of advocacy at the Freedom of the Press Foundation, noted after the charges were dismissed. "Anyone who read the text—let alone an experienced attorney like Escambia County District Attorney Stephen Billy— could have figured that out."
The case "shows Billy is both unqualified and unfit to hold his position as a district attorney—or any public office, for that matter," Stern added. "The dismissal of the charges against Digmon and Fletcher shouldn't be the end of this story. Real accountability is needed."
Digmon, Fletcher, and the two other plaintiffs agree. Their lawsuit, which seeks compensation for the costs they suffered as a result of an unconstitutional vendetta, argues that Billy, Sheriff Jackson, and the deputies who did their bidding either knew or should have known that the warrants and arrests were legally invalid. It alleges that Billy and Jackson "planned and carried out a convoluted conspiracy of retaliation" aimed at punishing the plaintiffs for exercising their First Amendment rights and thereby also violated the Fourth Amendment's restrictions on searches and seizures.
"Criticism isn't criminal," the complaint says. "Our Constitution ensures that government officials can't use their authority to punish people who disagree with them about who should hold local office."
The post An Alabama D.A. Filed Legally Impossible Charges Against School Board Members Who Crossed Him appeared first on Reason.com.
