By Jon Gillooly

jgillooly@mdjonline.com

MARIETTA - The Cobb school board was slapped with a restraining order, requiring all work on a controversial cell tower at Eastvalley Elementary School off Lower Roswell Road to be halted for 30 days, following a two-hour hearing Monday in Cobb Superior Court.

Three parents who live next to the school requested the restraining order Sept. 9.

At issue was the surprise move at the school board's July 23 meeting, when the Rev. Dr. John Crooks, who represents Eastvalley, called for the board to approve a request from T-Mobile to erect a 150-foot cell tower - which the board did in a 7-0 vote. Yet when the board's agenda was published on its Web site earlier that week, nowhere did it mention a vote on the cell tower proposal. Crooks later admitted that if he hadn't placed the item on the agenda at the last minute, "it would have probably caused a circus."

The three parents requested a temporary restraining order because they claim the board violated Georgia's Open Meetings Law by placing the cell tower vote on the agenda the day of the meeting. Open Meetings Act violations may be brought to the court within 90 days of the violation. The remedy is to declare the vote void and require the government body to revote.

While the contract with T-Mobile was signed Sept. 9, the parents said construction for the tower has yet to occur.

In arguing for the restraining order, plaintiffs' attorney, Isidor Kim of Duluth-based Kim and Yang, cited Georgia's Open Meetings Law, which states: "Prior to any meeting, the agency holding such meeting shall make available an agenda of all matters expected to come before the agency at such meeting. The agenda shall be available upon request and shall be posted at the meeting site, as far in advance of the meeting as reasonably possible."

In testifying Monday, two of the plaintiffs, Jonathan Young, a mechanical contractor whose young children will soon be attending Eastvalley, and Dr. Ricky Welkis, a chiropractor whose children currently attend Eastvalley, said they had assurances from Crooks that no vote would be taken on the cell tower until August. Moreover, Crooks pledged to them that he would survey the community to learn whether it wanted the cell tower or not. Young and Welkis also said they kept an eye on the school board's agenda to ensure the vote didn't come up. So when they learned that the board had approved the cell tower on July 23 without advance notice, they were stunned.

The other plaintiff, architect Ben Skaggs, owner of Atlanta-based Architectural Design Concepts, said, "I feel very inadequate when someone tries to do something like this behind my back."

"Unfortunately, the school board should be setting an example to our children about how the political system should be done the right way. We were certainly used as pawns to try to get one more tower in for the sake of their political career. I'm hoping this will come out and damage their political career. I don't see how any one with the right mind and the sense could conceivable think that 15 cents per student per day is worth all the potential health risks and worth the potential loss in the equity in your home," he said, citing the revenue the tower is expected to bring the school.

The Marietta Daily Journal filed an amicus curiae (friend of the court) brief for Monday's hearing to support the parents' contention that the board's vote violated Georgia's Open Meetings Act.

MDJ attorney Robert Fortson of the Marietta firm Turner, Bachman and Garrett said from the Journal's perspective the case was not about a cell phone tower, but about open and honest government, and ensuring that local officials comply with the law.

"In this instance, the Cobb County Board of Education clearly and apologetically violated the Open Meetings Act. By failing to post this cell tower issue as an agenda item (on its Web site) in advance of the July meeting, the school board effectively silenced any voice of opposition. This is exactly the kind of closed door politics that the act is designed to prevent. Judge Stoddard clearly understood this, which is why he ruled in favor of the plaintiffs," Fortson said.

In granting the temporary restraining order Monday, Senior Cobb Superior Court Judge Michael Stoddard agreed with the parents and MDJ that the public, "did not have proper notice of the cell tower proposal prior to the July 23, 2009, hearing."

Not only did the board fail to provide advance notice of the vote, it failed to show why a vote was needed on July 23, Stoddard wrote in his order.

"Plaintiffs will be irreparably harmed if construction begins on the proposed cell phone tower at Eastvalley Elementary School," he wrote. "Therefore the defendants are restrained for a period of 30 days from executing any contracts, performing any work, or allowing anyone else to perform work regarding the construction of a cell phone tower at Eastvalley Elementary School."

Skaggs said after the hearing, "now we plan on preparing for the inevitability of a trial. But in the course of the next 30 days, we're certainly going to rally support against it. Perhaps the 'circus' that Mr. Crooks was wanting to try to avoid is going to happen," Skaggs said.

Crooks, who sat next to school board attorney Todd Hatcher of Brock, Clay, Calhoun and Rogers, was the only board member present at the hearing.

Crooks said after the hearing he did nothing wrong.

"What we do is difficult, OK? And no good deed ever goes unpunished. It was never my intent to do anything wrong, but to do what was best in the interest of the school attendance zone," Crooks said.

Crooks defended his "circus" comment.

"I've never backed off those comments. And you know what? You're going to get to see what I fear, and the most important thing to me as a public servant is that there's unity and cohesiveness in my district. I don't want neighbors and friends across the aisle in a public forum on an impassioned issue possibly being angry or resentful or strife ridden," Crooks said.

Crooks refused to say whether he would encourage the board to revote on the cell tower matter.

"I'm not commenting on that. Our lawyer has argued for us, a judge issued his ruling. I'm sure that we will discuss this as a board and we'll move forward as a board," Crooks said.

Skaggs said he voted for Crooks because he trusted him.

"And it seems that he's let us down," Skaggs said.

"I asked him point blank, 'would you want to have this in your neighborhood?' And that's one point that he did not lie on. He said, 'no, I don't want this in my neighborhood.' I feel that in itself would speak very strongly on why would he want to impose it on a neighborhood like ours," Skaggs said.

Apparently the school board relied on an opinion from its attorney, Glenn Brock, who advised them the vote was legal.

"I talked to Mr. Brock about that and he has assured us that we are in compliance with the law with regard to putting that on the agenda," school board Chairman Dr. John Abraham said during an August board meeting.

However, Abraham ducked the question about whether he believed he had acted fairly by placing the item on the agenda the day of the meeting.

"I will defer to my colleague who knows his post better than I," he said, passing the question to Crooks.

Incidentally, Crooks and Abraham were two of the board members who voted more than 50 times in executive session since January 2007 in violation of Georgia's Open Meetings Act. He and the board also took part in 25 closed-door discussions of items the law says cannot be discussed in executive session. Crooks has blamed the violations on then-chairs Lindsey Tippins and Betty Gray, claiming there was nothing he could do since they were in charge at the time.

One of the arguments Hatcher made was that the school board's contract with T-Mobile was already signed on Sept. 9. He asked if the plaintiffs were going to reimburse the school district for any damages incurred if the board had to break its contract with T-Mobile.

However, Kim pointed out that not only had his request for a restraining order been filed on the same day the school district signed the contract with T-Mobile, but he had also sent an Aug. 31 letter to the school district requesting that it refrain from entering into a contract until an agreement could be reached.

Were the judge to allow the construction to begin on the tower, it would make it much more difficult to have the tower removed should the court side with the plaintiffs in the future, he said.

Marietta Daily Journal Publisher Otis Brumby Jr. echoed Fortson's comments, saying the approval of a cell tower was a Cobb School District decision.

"However, we, like most Cobb Countians, are concerned when legislative bodies vote on non-emergency matters with no advance notice to citizens. Basic fairness and Georgia law both require advance public notice through an advanced agenda release. The public, whether at the national, state or local level, is increasingly fed up with more and more shenanigans and deception from too many of our elected officials," Brumby said.