In February, the USD 257 Board of Education filed a petition asking the court to examine the details of its obligations to the Bowlus Fine Arts Center as they were originally described 55 years ago in the will and charitable trust of Thomas H. Bowlus.
In March, Judge Robert Fairchild, of Lawrence, heard objections to the petition from two Iola residents, Fred Works and Jim Gilpin, who endeavored — both men with long volunteer histories with the Bowlus — to gain standing to participate in the court’s consideration of the petition submitted by the school board in their ascribed role as Bowlus trustees.
Among the questions for which trustees are seeking legal direction are these: Does the will require classes to be held at the Bowlus? If so, how many classes? How much discretion does the board have in defining what constitutes a “fine arts” class? Does the USD 257 budget make it impractical to continue to pay to use the Bowlus for classroom space if less expensive venues are available? Is there a situation in which the Bowlus could be forfeited to the Kansas University Endowment Association, as the language in the original will seems to suggest?
ON TUESDAY, appearing before a crowd of about 20 area residents, Judge Fairchild refused Works and Gilpin the necessary standing to become party to the proceedings. But he did not seek to mute their voices on the matter entirely, inviting each to submit an amicus brief to be considered by the court in its assessment of the legal petition.
The court has given Works, along with Gilpin’s attorney Blake Hudson, until July 10 to respond. Chanute-based attorney Melissa Dugan — who, as guardian ad litem, was appointed to represent the “community as a whole”— also has until July 10 to respond. At which point the petitioners, represented by Johnson Schowengerdt, P.A, have until Aug. 14 to file their reply.
“I UNDERSTAND how important this facility is to your community,” said Judge Fairchild, who was appointed to evaluate the petition when Allen County District Judge Daniel Creitz recused himself citing a potential conflict of interest. “And so I want to give everyone the opportunity to address [the topic].”
While the amicable 40-minute hearing limited itself to specific questions of standing, it was in this spirit of wanting the discussion to benefit from a wide range of input that appeared to motivate Works and Gilpin’s involvement.
“In filing my response,” explained Works, “I did not do so in an adversarial manner. On the contrary, [I assumed] that, because of the nature of the often hypothetical questions that were being posed to the court, that this would be more of an open and inclusive discussion about what are the possible parameters within which the Bowlus can move in, say, the next 50 years. I thought I might be able to contribute to that discussion. I responded to the notice in the [The Iola Register, generated by the trustees]” — which invited the “citizens of Iola” to file any pleadings or defenses to the petition by March 7 — “because I thought that my involvement with the Bowlus over the last 30 years could bring some important historical and institutional knowledge and content to those discussions that, quite frankly, I don’t think the current [school board] make-up has…. It was also a way to give a little voice to patrons, to user groups, supporters, other affiliated groups with the Bowlus, who had expressed a certain feeling of being on the outside looking in, not knowing how to participate in this proceeding. … I think that if the board wants to keep this an open and inclusive process, it could consent both to Mr. Gilpin’s and my participation for that purpose. …I personally think [that this question of standing] is answered on a commonsense basis. That’s how the notice was given to the public, it’s how the public was invited to participate. We complied with that notice. If that notice was not directed at someone such as myself, then who was that notice, as it was worded, directed to?”
ACTING BOARD attorney Daniel Schowengerdt conceded, that in deferring to the boilerplate template in which legal notices are typically crafted, perhaps the one issued by the trustees was “over-broad.” But, he said, the larger mistake is that the opposition is subjecting the purpose of the petition — which is to allow the trustees of a charitable organization to discharge their obligation by seeking the court’s guidance on questions of legal interpretation — to the habits and grammar of a lawsuit. “I’m uncomfortable,” said Schowengerdt, “with [this] being handled as a semi-lawsuit with lawsuit principals. This is not a lawsuit.”
Regarding the relevance of citizen input of the kind Works and Gilpin are requesting, continued Schowengerdt, this simply isn’t the time and place. “By objecting to [these requests for standing],” explained Schowengerdt, “the trustees are not saying that…the public’s voice is not important.” In fact, he continued, the board has hosted well-attended public forums in which public opinion was expressly privileged. “However, this forum is not the appropriate forum for that input. This forum is for the trustees alone. The trustees are the ones ultimately responsible for the Bowlus.”
To the specific question of standing, Schowengerdt rejected the notion, at least implicit in the language of the will, that one’s individual citizenship confers on him or her special status as a beneficiary of the Bowlus trust. Schowengerdt rendered the distinction like this: “Mr. Works’s argument is very simple. He says that a beneficiary of a trust has standing: ‘I am a beneficiary, therefore I have standing.’ The problem with that…is that for 50 years this community has been told that every single person is a beneficiary. We do not believe that to be true. It is the community as a whole that is the beneficiary. Because the community as a whole is the beneficiary, a guardian ad litem was appointed as has been done in previous proceedings to represent the community as a whole.”
“I concur with everything that [Mr. Schowengerdt] just set forth,” said Dugan, who then made haste to elevate her total concordance with the petitioners to a region of agreement distinct from a simple “rubber stamping.” “My job as guardian ad litem is to represent the class as a whole and there’s no way I can look after the best interests of the class as a whole if I pursue…an individual person’s interest. … I think that part of what’s causing some confusion here,” said Dugan, echoing Schowengerdt’s earlier point, “is that this is a legal issue for the court, and the general public, without having much legal knowledge, is confusing this with a factual dispute.”
ASKED EARLIER by Judge Fairchild whether she would at least work with Gilpin and Works and include their contributions when fulfilling her duties as guardian ad litem, Dugan allowed that she would. But she was, again, at extreme pains to distance herself from the men sitting at the opposite table. “My problem with that…is that the court appointed me to represent the beneficiaries as a whole” and prioritizing [Works and Gilpin’s] contributions would likely “frustrate” the proceedings.
“Agreed,” said Judge Fairchild. “But what I’m saying is that their input could be helpful to you in carrying out your function to represent the class as a whole. I’m not ordering you to represent any one individual.”
In the spirit of forestalling either acrimony or the sense that the process was anything less than totally transparent, Judge Fairchild said that he would “stretch” to allow Works and Gilpin to submit their contributions through separate briefs. “But, right now, unless somebody convinces me otherwise, I’ve got to make a legal decision, and for that to be made I don’t need to hear evidence. Someone is going to have to convince me that evidence is allowed under the law before we can jump through that hoop.”
