              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-464

                              Filed: 3 November 2015

Cleveland County, No. 12 CVS 41

THOMAS JEFFERSON CLASSICAL ACADEMY CHARTER SCHOOL, PIEDMONT
COMMUNITY CHARTER SCHOOL, AND LINCOLN CHARTER SCHOOL,
Plaintiffs,

             v.

CLEVELAND COUNTY BOARD OF EDUCATION, D/B/A CLEVELAND COUNTY
SCHOOLS, Defendant.


      Appeal by defendant from judgment entered 29 January 2015 by Judge Jesse

B. Caldwell, III in Cleveland County Superior Court. Heard in the Court of Appeals

8 October 2015.


      Robinson Bradshaw & Hinson, P.A., by Richard A. Vinroot, Matthew F. Tilley
      and Amanda R. Pickens, for plaintiffs-appellees.

      Tharrington Smith, L.L.P., by Deborah R. Stagner, for defendant-appellant.

      Christine T. Scheef and Allison B. Schafer, for amicus curiae North Carolina
      School Boards Association.


      TYSON, Judge.


      Defendant Cleveland County Board of Education, d/b/a Cleveland County

Schools (“CCS” or “Defendant”), appeals from judgment entered in favor of Thomas

Jefferson Classical Academy Charter School, Piedmont Charter School, and Lincoln

Charter School (collectively, “the charter schools” or “Plaintiffs”) in the amount of
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$54,527.80. The trial court concluded CCS had underfunded Plaintiffs during the

2009-10 fiscal year. We affirm.

                       I. Factual and Procedural Background

      This case returns to this Court after prior remand to the trial court by a divided

panel of this Court. See Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland

Cnty. Bd. Of Educ. (Thomas Jefferson II), __ N.C. __, 763 S.E.2d 288 (2014).

      Plaintiffs commenced this action on 9 January 2012 by filing a complaint, in

which they alleged CCS had underfunded the charter schools for fiscal year 2009-10.

Plaintiffs asserted CCS failed to pay them the statutorily required per-pupil amount

of all money contained in the local current expense fund. Plaintiffs alleged CCS owed

them approximately $102,480.00

      Plaintiffs asserted CCS wrongfully transferred approximately $4.9 million

from the local current expense fund into a “special revenue fund” known as Fund 8.

Monies in the local current expense fund must be shared with charter schools, while

monies in a special revenue fund are not required to be shared with the charter

schools.

      Plaintiffs sought a declaratory judgment that CCS was statutorily required to

allocate the funds in accordance with N.C. Gen. Stat. § 115C-238.29H (2009), and

demanded recovery in the amount of $102,480.00 and attorneys’ fees. CCS timely




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served an answer, and denied the transfer of funds to the special revenue fund

violated any relevant statutory provisions.

      A non-jury trial was held on 9 October 2012. On 21 February 2013, the trial

court entered a final judgment in favor of Plaintiffs and awarded the charter schools

$57,836.00. Plaintiffs were also awarded attorneys’ fees by separate order. CCS

appealed both orders.

      In an opinion issued 2 September 2014, this Court reversed the trial court’s

order awarding attorneys’ fees to Plaintiffs. This Court held “the determination of

whether funds that accrued to the local school administrative unit were ‘restricted’ is

a conclusion of law rather than a finding of fact.” Thomas Jefferson II, __ N.C. at __,

763 S.E.2d at 293.

      This Court remanded the case to the trial court for “a revised judgment with

appropriate findings of fact and conclusions of law as to the funds at issue.” Id. at __,

763 S.E.2d at 295. This Court instructed the trial court that “[r]elevant findings of

fact would concern the origin, purpose, and ultimate use of the funds, not their

designation as ‘restricted.’” Id. at __, 763 S.E.2d at 293.

      The hearing after remand was held on 21 November 2014. The trial court

entered a final judgment on 29 January 2015 in favor of the charter schools and

awarded them $54,527.80, which represented their “per-pupil share of those moneys

CCS had included in its Special Revenue Fund that were not, in fact, restricted.”


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      Defendant gave timely notice of appeal to this Court.

                                        II. Issue

      Defendants argue the trial court erred by finding and concluding certain

revenues were not restricted, and the charter schools were therefore entitled to a pro

rata share of those revenues pursuant to N.C. Gen. Stat. § 115C-238.29H(b) (2009).

                               III. Standard of Review

      “When the trial court sits without a jury, the standard of review on appeal is

whether there was competent evidence to support the trial court’s findings of fact and

whether its conclusions of law were proper in light of such facts.” Jackson v. Culbreth,

199 N.C. App. 531, 537, 681 S.E.2d 813, 817 (2009) (citation and quotation marks

omitted).    “Evidence must support the findings, the findings must support the

conclusions of law, and the conclusions of law must support the ensuing judgment.”

Id. (citation omitted).

      “The trial court’s findings of fact are binding on appeal as long as competent

evidence supports them, despite the existence of evidence to the contrary.” Curran v.

Barefoot, 183 N.C. App. 331, 335, 645 S.E.2d 187, 190 (2007) (citation omitted). “The

trial court’s conclusions of law drawn from the findings of fact are reviewable de

novo.” Id.

                                     IV. Analysis




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      Former N.C. Gen. Stat. § 115C-238.29H governed the allocation of funds

between local school administrative units and charter schools during the 2009-10

school year, which is the relevant time frame in this appeal. N.C. Gen. Stat. § 115C-

238.29H (2009).    N.C. Gen. Stat. § 115C-238.29H(b) required the local school

administrative unit to “transfer to the charter school an amount equal to the per pupil

local current expense appropriation to the local school administrative unit for the

fiscal year” for each student who attends a public charter school. N.C. Gen. Stat. §

115C-238.29H(b).

      This Court held the phrase “local current expense appropriation” is

“synonymous with the phrase ‘local current expense fund’ in the School Budget and

Fiscal Control Act, N.C.G.S. § 115C-426(e).” Francine Delany New School for

Children, Inc. v. Asheville City Bd. of Educ., 150 N.C. App. 338, 347, 563 S.E.2d 92,

98 (2002), disc. review denied, 356 N.C. 670, 577 S.E.2d 117 (2003). N.C. Gen. Stat.

§ 115C-426(e) defines “local current expense fund” as:

             The local current expense fund shall include
             appropriations sufficient, when added to appropriations
             from the State Public School Fund, for the current
             operating expense of the public school system in conformity
             with the educational goals and policies of the State and the
             local board of education, within the financial resources and
             consistent with the fiscal policies of the board of county
             commissioners. These appropriations shall be funded by
             revenues accruing to the local school administrative unit
             by virtue of Article IX, Sec. 7 of the Constitution, moneys
             made available to the local school administrative unit by


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             the board of county commissioners, supplemental taxes
             levied by or on behalf of the local school administrative unit
             pursuant to a local act or G.S. 115C-501 to 115C-511, State
             money disbursed directly to the local school administrative
             unit, and other moneys made available or accruing to the
             local school administrative unit for the current operating
             expenses of the public school system.

N.C. Gen. Stat. § 115C-426(e) (2009). See N.C. Const. art. IX, § 7(a) (“[A]ll moneys,

stocks, bonds, and other property belonging to a county school fund, and the clear

proceeds of all penalties and forfeitures and of all fines collected in the several

counties for any breach of the penal laws of the State . . . shall be faithfully

appropriated and used exclusively for maintaining free public schools.”); Francine

Delaney, 150 N.C. App. at 339, 563 S.E.2d at 93.

      The applicable 2009 version of N.C. Gen. Stat. § 115C-426(c) permitted the

creation of “other funds . . . to account for trust funds, federal grants restricted as to

use, and special programs.” This Court interpreted this statutory provision in two

related cases.

      In Sugar Creek Charter School, Inc. v. Charlotte-Mecklenburg Bd. of Educ.

(Sugar Creek I), this Court held county appropriations specifically earmarked for two

particular programs were subject to the mandatory provisions of N.C. Gen. Stat §

115C-238.29H(b). 188 N.C. App. 454, 460, 655 S.E.2d 850, 854, disc. review denied,

__ N.C. __, 667 S.E.2d 460 (2008). This Court’s decision emphasized the fact that the

school board had failed to set up a “separate special fund” for these programs, and


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placed the appropriations in the school board’s local current expense fund. Id. at 460-

463, 655 S.E.2d at 855-56.

      This holding was expanded in Sugar Creek Charter School, Inc. v. Charlotte-

Mecklenburg Bd. of Educ. (Sugar Creek II), 195 N.C. App. 348, 360-61, 673 S.E.2d

667, 676, appeal dismissed and disc. review denied, 363 N.C. 663, 687 S.E.2d 296

(2009). In Sugar Creek II, this Court concluded several sources of revenue with either

a designated purpose or for a special program were subject to the per-pupil

distribution, because the funds were placed in the local current expense fund, as

opposed to a separate fund. This Court reiterated its prior holding in Sugar Creek I

that “[b]ecause Defendants have held these moneys in their local current expense

fund, they are required to share these moneys with Plaintiffs.” Sugar Creek II, 195

N.C. App. at 361-62, 673 S.E.2d at 676 (citation omitted).

      Based on Sugar Creek I and II, this Court held “the provisions of Chapter 115C

. . . do not require that all monies provided to the local administrative unit be placed

into the ‘local current expense fund[.]’” Thomas Jefferson Classical Acad. Charter

Sch. v. Rutherford Cnty. Bd. of Educ. (Thomas Jefferson I), 215 N.C. App. 530, 543,

715 S.E.2d 625, 633 (2011), disc. review denied and appeal dismissed, __ N.C. __, 724

S.E.2d 531 (2012). “Rather, Sugar Creek I and II clearly indicate that it is incumbent

upon the local administrative unit to place restricted funds into a separate fund.” Id.

at 544-45, 715 S.E.2d at 634. This Court further stated “[i]f the funds are left in the


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‘local current expense fund,’ then they are to be considered in computing the per pupil

amount to be allocated to the charter school.” Id. at 545, 715 S.E.2d at 634.

      While these prior cases clearly indicate local school boards are permitted to

place certain restricted funds in a separate fund, so as to not require their inclusion

in the charter schools’ pro rata share, “restricted funds” were not defined until this

Court’s recent decision in Thomas Jefferson II. Thomas Jefferson II, __ N.C. App. at

__, 763 S.E.2d at 292 (noting “we have never defined what ‘restricted funds’ are or

who has the authority to make that determination.”).

      In Thomas Jefferson II, this Court relied on our prior holdings in Sugar Creek

I and II, and Thomas Jefferson I, and concluded “the local school administrative unit

may deposit any ‘restricted’ funds into a fund separate from the current expense

fund.” Id. (citations omitted). This Court set forth the proper legal framework under

which to analyze “restricted” funds:

             We further conclude that the determination of which funds
             may be placed in a separate fund is a question of law and
             not solely in the discretion of the local school board, given
             the mandatory language found in the budget statute [N.C.
             Gen. Stat. § 115C-426(e)]. . . .

                     Because the issue of whether funds are “restricted”
             or not is an issue of law, we further hold that the
             determination of whether funds that accrued to the local
             school administrative unit were “restricted” is a conclusion
             of law rather than a finding of fact. . . . Relevant findings
             of fact would concern the origin, purpose, and ultimate use
             of the funds, not their designation as “restricted.”


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Id. at __, 763 S.E.2d at 293 (citation omitted).

      This Court continued by noting “‘[r]estricted’ is not a term found in any of the

relevant statutes,” but is “the Court’s shorthand for those monies that can be placed

in a separate fund, i.e. those from ‘trust funds, federal grants restricted as to use, and

special programs’ which must be accounted for separately.” Id. (quoting N.C. Gen.

Stat. § 115C-426(c)).

      This Court explained in order to determine which funds were “restricted,” “the

question is . . . whether the funds have a limited use and specific purpose, such as to

fund a special program.” Id. (citation omitted). By contrast, “unrestricted funds are

those that could be used for all of the K-12 population without restriction.” Id.

(emphasis in original). We held “[b]ased on the prior cases and the language of the

applicable statutes, we define ‘restricted’ funds as those funds which have been

designated by the donor for some specific program or purpose, rather than for the

general K-12 population of the local school system.” Id. (emphasis supplied).

      Defendant argues the trial court erred by finding various sources of revenue

were not restricted, and concluding these funds are subject to a per-pupil distribution

to the public charter schools. The following sources of revenue are specifically at

issue: (1) tuition/fees; (2) indirect costs; (3) Medicaid reimbursement; (4) E-Rate; (5)




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Juvenile Crime Prevention Council; (6) Dropout Prevention Grant; (7) ROTC; (8)

WorkForce Investment Act; and (9) Gear Up Grant. We address each one in turn.

                                         A. Tuition/Fees

      Defendant argues the trial court erred by finding the funds labeled

“Tuition/Fees” were not restricted, and therefore subject to per-pupil distribution to

the charter schools. We disagree.

      The trial court made the following finding of fact regarding the origin, purpose,

and use of the tuition/fees funds:

             15.    CCS included moneys designated as “Tuition” and
             “Tuition/Fees” in its Special Revenue Fund during fiscal
             year 2009-10. This money consisted of the payment of
             tuition and fees CCS received from parents of students
             residing outside of Cleveland County. CCS receives tuition
             and fees to educate its students, including out-of-district
             students, and these funds are used for CCS’s general
             operating expenses and its general K-12 educational
             program. The parents that pay tuition and fees to CCS
             place no restriction on CCS’s use of those funds.

      The trial court concluded as a matter of law that the money listed as “tuition”

and “tuition/fees” were not restricted based on this finding of fact.

      CCS argues the money listed as “tuition/fees” was restricted because the money

was “paid to the Board by the Rutherford County Board of Education to provide a

teacher assistant for a single, specific special education student who resided in

Rutherford County but attended CCS.” CCS contends this money differs from the



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money listed as “tuition,” which was paid directly from parents. CCS asserts the trial

court failed to make findings of fact with respect to the origin, purpose, and use of the

“tuition/fees” funds.

      David Lee (“Mr. Lee”), the chief financial officer for CCS, was asked at trial

whether he had stated in his deposition that the local source money, including money

for tuition/fees, was not restricted. He responded in the affirmative. Dr. Nellie Aspel

(“Dr. Aspel”), the director of exceptional children for CCS, testified CCS “sign[ed] an

annual contract and then we hire the teacher assistant. And then each month we

invoice Rutherford County for that month’s portion of that TA pay.” The Individuals

with Disabilities Act requires CCS to provide such services to students with

disabilities in accordance with their individualized education plans (“IEPs”). See 20

U.S.C. § 1400, et seq. Regardless of whether CCS receives reimbursement for this

particular student from Rutherford County, providing these services is part of CCS’s

general operating costs.

      We have reviewed the evidence of record and the transcript, and fail to see a

significant distinction between the money paid to CCS by Rutherford County Schools,

and tuition paid by parents of CCS students residing in Cleveland County. Both

sources of tuition funds were used for CCS’s general operating expenses and its

general K-12 population.




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      Competent evidence supports the trial court’s findings of fact regarding the

tuition/fees funds. These findings of fact support the trial court’s conclusion of law

that this money was not restricted based on origin, purpose, or use. See Thomas

Jefferson II, __ N.C. App. at __, 763 S.E.2d at 293. This argument is overruled.

                                     B. Indirect Costs

      Defendant argues the trial court erred by finding the funds labeled “indirect

costs” were not restricted and subject to the statutory per-pupil distribution to the

charter schools. We disagree.

      The trial court made the following finding of fact with regard to indirect costs:

             19.    CCS included moneys designated as “Indirect Cost
             Allocated” in its Special Revenue Fund during fiscal year
             2009-10. This money consisted of reimbursements from
             the federal government for a portion of CCS’s “general
             overhead” expenses, which CCS received in connection
             with its operation of federal programs. CCS refers to these
             expenses as “indirect costs.” As CCS acknowledges,
             indirect costs are not attributable to any particular
             program within CCS, and include various general
             operating expenses, such as accounting, payroll,
             purchasing, facilities management, and utilities. The
             federal government does not place any restriction on how
             CCS uses the reimbursements it receives for indirect costs.

      Testimony at trial tended to show the origin, purpose, and use of the funds for

indirect costs. Mr. Lee testified the federal government placed no restrictions on the

portion of the federal grants CCS received in relation to indirect costs and operating

expenses. Mr. Lee stated the money received from federal grant funds for indirect


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costs are spent in the normal operations of the school district, and are not spent for

any restricted programs or expenses.

      Although indirect costs may be connected to federal grant money for a

particular program, this fact does not per se make these funds restricted. In Thomas

Jefferson II, this Court stated “the question is . . . whether the funds have a limited

use and specific purpose, such as to fund a specific program.” Thomas Jefferson II, __

N.C. App. at __, 763 S.E.2d at 293 (citation omitted).

      Mr. Lee further testified the indirect cost money is “plain money that goes in

[the] current expense fund” and was “spent for current operating expenses.” Mr. Lee

explained no one required him to deposit the money into a separate fund, and he did

so on his own volition. Mr. Lee’s testimony supports the trial court’s findings of fact

that these funds “consisted of reimbursements,” because they were part of the federal

grant reimbursement money CCS received. Mr. Lee’s testimony also supports the

trial court’s finding of fact that the funds were not “designated by the donor for some

specific program or purpose[.]” Thomas Jefferson II, ___ N.C. App. at ___, 763 S.E.2d

at 293.

      The trial court’s findings of fact regarding funds labeled “indirect costs” are

supported by competent evidence. Any evidence to the contrary does not change our

analysis regarding the classification of these funds. Under the applicable standard

of review, it is for the trial court to “pass[] upon the credibility of the witnesses and


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the weight to be given their testimony and the reasonable inferences to be drawn

therefrom.” Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968). “The trial

court must . . . determine what pertinent facts are actually established by the

evidence before it, and it is not for an appellate court to determine de novo the weight

and credibility to be given to evidence disclosed by the record on appeal.” Coble v.

Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980) (citations omitted).

      The trial court’s findings of fact support its conclusion that these funds were

not restricted based on their origin, purpose, and use. See Thomas Jefferson II, __

N.C. App. at __, 763 S.E.2d at 293. The trial court did not err by finding these funds

should have been included in the local current expense account and apportioned to

the charter schools on a per-pupil basis. This argument is overruled.

                                C. Medicaid Reimbursement

      Defendant argues the trial court erred by concluding the Medicaid

reimbursement funds were not restricted. We disagree.

      The trial court made the following finding of fact regarding the Medicaid

reimbursement funds:

             27.   CCS used moneys designated in its audit as
             “Medicaid Reimbursement” for its general operating
             expenses during its 2009-10 fiscal year. CCS received
             these reimbursements for services CCS provided for
             students with individual education plans (“IEP's”), i.e., in
             accordance with federal law, which requires both CCS and
             the Charter Schools to provide such services to students


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              with learning disabilities. The evidence shows that CCS
              used other moneys from its general funds to operate its IEP
              programs as well, and that the federal government does not
              restrict the use of the reimbursement funds once received
              by CCS.

      Testimony regarding the origin, purpose, and use of the Medicaid

reimbursement funds tended to show the following: Dr. Aspel stated she was

responsible for Medicaid billing for direct services. Dr. Aspel explained students with

special needs are given an IEP.       An IEP is an outline of special education or

specialized instruction-related services students with disabilities will receive

throughout the school year. These students are part of the general K-12 population

enrolled throughout CCS and the charter schools.

      Dr. Aspel testified CCS, as the local education agency (“LEA”), provides

services to any disabled students according to the student’s IEP.           The federal

government subsequently reimburses the LEA for “what [they have] already

delivered.”   Mr. Lee also admitted the $162,098.00 CCS received as “Medicaid

Reimbursement” was not restricted.

      Dr. Aspel explained “[t]he Medicaid [reimbursements] go back into the

exceptional children’s budget to help offset the cost of the employment of the physical

therapist, occupational therapist, speech therapist, and all the specialized equipment

that they need to deliver the services that are on the IEP.” As discussed supra, federal

law requires both CCS and the charter schools to provide these services to students


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with disabilities regardless of whether Medicaid provides reimbursements.         The

Medicaid reimbursements merely serve as an alternative source of funding to recoup

expenses CCS is mandated to incur and provide for certain students with IEPs. These

students are part of the general K-12 population.

       We emphasize that under the applicable standard of review, “findings of fact

by the trial court in a non-jury case are conclusive on appeal if there is evidence to

support those findings.” Montague v. Montague, __ N.C. App. __, __, 767 S.E.2d 71,

74 (2014) (citation and quotation marks omitted). “[I]t is not for an appellate court

to determine de novo the weight and credibility to be given to evidence disclosed by

the record on appeal.” Coble, 300 N.C. at 712-13, 268 S.E.2d at 189.

       The trial court’s findings of fact regarding Medicaid reimbursement funds

indicate the funds originated from the federal government as the donor. The trial

court also found these funds were used by CCS to provide services for students with

IEPs in the general K-12 population, in accordance with federal law. The transcript

and evidence clearly show the donor of the funds did not designate or restrict the

funds for a specific purpose. Competent evidence supports the trial court’s findings

of fact.

       These findings of fact support the trial court’s conclusion of law that the

Medicaid reimbursement funds were not restricted based on their origin, purpose, or




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use. See Thomas Jefferson II, __ N.C. App. at __, 763 S.E.2d at 293. This argument

is overruled.

                                            D. E-Rate

      Defendant argues the trial court erred by concluding E-Rate funds were not

restricted. We disagree.

      The trial court’s finding of fact regarding the E-Rate funds stated:

                29.    During 2009-10, CCS used moneys designated in its
                audit as “E-Rate — Other Unrestricted” to reimburse other
                moneys paid out of its current expense fund for internet
                and telecommunications. CCS received the “E-Rate”
                reimbursement funds for operating federal programs. The
                evidence shows that CCS used moneys from its general
                fund to pay for CCS’s telephones, internet, and
                telecommunications. Providing internet, telephones, and
                telecommunication services to school buildings is a utility
                cost and part of the operating expenses of CCS’s general
                educational program, and such money is not used for any
                special program. The federal government does not restrict
                the use of the reimbursement funds once received by CCS.

      Testimony regarding the origin, purpose, and use of the E-Rate funds tended

to show the following: Dr. Cheryl Lutz (“Dr. Lutz”), the director of technology services

for CCS, testified E-Rate is a federal program, which reimburses the school system

for a percentage of what it pays for telecommunications and Internet access. The

amount of federal reimbursement is calculated based on the school system’s free and

reduced lunch numbers from across the general K-12 population.




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        According to Dr. Lutz, CCS contracts with and pays a vendor for Internet and

telecommunications services. CCS is reimbursed by the federal government under

the E-Rate program for a portion of the money previously expended for Internet and

telecommunications services. CCS is required to apply and be approved for the E-

Rate program, before it purchases the services and must submit a reimbursement

form.

        CCS funds these services from its local current expense fund prior to

reimbursement from the E-rate program. All CCS K-12 students, staff, faculty, and

bus drivers may utilize the Internet and telecommunications services. The transcript

and evidence clearly show the donor of these funds did not designate or restrict these

funds for some specific purpose.

        The trial court’s findings of fact regarding the E-Rate funds indicate the federal

government was the origin of these funds. The trial court also found the E-rate funds

were used for Internet and telecommunications services for all CCS K-12 students,

staff, faculty, and bus drivers.

        The trial court’s findings of fact are supported by competent evidence. These

findings of fact support the trial court’s conclusion that the E-Rate funds were not

restricted based on the origin, purpose, and use of the moneys. See Thomas Jefferson

II, __ N.C. App. at __, 763 S.E.2d at 293. This argument is overruled.

                             E. Juvenile Crime Prevention Council


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      Defendant argues the trial court erred by concluding the Juvenile Crime

Prevention Council (“JCPC”) funds were not restricted. We disagree.

      The trial court’s finding of fact regarding the JCPC funds states:

            33.    CCS included moneys designated as “JCPC” in its
            Special Revenue Fund during fiscal year 2009-10 to hire
            and pay for three school counselors. CCS received this
            federal grant money to pay for the salaries and benefits of
            personnel that trained, managed, and supported at-risk
            students in grades K-12. The evidence revealed that in
            2009-10, CCS chose to use the grant to offset salaries and
            benefits for two school counselors, and to combine this
            grant with another federal grant, Governor’s Crime
            Commission, to offset the compensation of another school
            counselor. These counselors served students in CCS’s
            general K-12 population and were therefore part of its
            general program. The provision of hiring and paying the
            salaries and benefits of school counselors for students in
            grades K-12 is a part of CCS’s current operating expenses.

      Testimony regarding the origin, purpose, and use of the JCPC funds tended to

show the following: Rodney Borders (“Mr. Borders”) served as the director of

alternative programs for CCS during the 2009-2010 school year.             Mr. Borders

explained CCS sets up an alternative program for students who are “at risk as far as

attendance, discipline problems, hardships in the lives, that need a smaller

environment.” Mr. Borders testified the alternative programs are funded by JCPC

moneys, which are obtained through a federal grant.

      Mr. Borders explained the JCPC funds were combined with another grant from

the Governor’s Crime Commission to hire and pay the salaries and benefits of


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additional life skills counselors. Mr. Borders testified the JCPC funds were also used

to pay the salaries of life skills counselors currently employed by CCS. The life skills

counselors were available to all K-12 students in Cleveland County schools.

      The trial court’s findings of fact regarding the JCPC funds indicates the origin

of the funds was from the federal government. The JCPC funds were used to pay the

salaries of life skills counselors. These life skills counselors were available to the

entire K-12 population of CCS.

      The trial court’s findings of fact regarding the JCPC funds are supported by

competent evidence. These findings of fact support the trial court’s conclusion that

the JCPC funds were not restricted based on origin, purpose, and use. See Thomas

Jefferson II, __ N.C. App. at __, 763 S.E.2d at 293. This argument is overruled.

                                 F. Dropout Prevention Grant

      Defendant argues the trial court erred by concluding funds designated as the

Dropout Prevention Grant were not restricted. We disagree.

      The trial court’s finding of fact regarding the Dropout Prevention Grant states:

             35.    CCS included moneys designated as “Dropout
             Prevention Grant” in its Special Revenue Fund during
             fiscal year 2009-10. CCS received this state funded grant
             for purposes of providing a dropout prevention program as
             part of its general K-12 educational programs and school
             curriculum. The evidence revealed that CCS was given
             discretion in deciding how to spend the funds received from
             the Dropout Prevention Grant. For the 2009-10 fiscal year,
             CCS decided to spend the funds to purchase computer


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             software programs and general K-12 curriculum programs,
             to pay for the salaries and benefits of three CCS employees,
             specifically two teaching assistants and a truancy court
             coordinator for CCS, and to provide staff development for
             school counselors. Those employees were each employed
             by CCS in its general K-12 program.

       Testimony regarding the origin, purpose, and use of the Dropout Prevention

Grant tended to show: Tony Fogelman (“Mr. Fogelman”), the career and technical

education director for CCS, oversaw the Dropout Prevention Grant. He explained the

Dropout Prevention Grant was a “state-funded grant that provides resources to public

school systems, for them to make the decision as to how they want to best spend their

money to prevent dropouts, keep kids in school.”

       Mr. Fogelman testified the Dropout Prevention Grant was targeted at all CCS

students. For the 2009-2010 school year, CSS used the Dropout Prevention Grant to

pay for two teaching assistants and a truancy court coordinator.

       The trial court’s findings of fact regarding the Dropout Prevention Grant

indicate the origin of these funds was from North Carolina state government. The

transcript and evidence clearly show the Dropout Prevention Grant was intended to

benefit the entire K-12 student population. CCS exercised discretion over how to

spend the funds, in furtherance of its goal of preventing students from dropping out

of school.




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      The trial court’s finding of fact regarding the Dropout Prevention Grant is

supported by competent evidence.      The findings of fact support the trial court’s

conclusion that the funds designated for the Dropout Prevention Grant were not

restricted based on origin, purpose, or use. See Thomas Jefferson II, __ N.C. App. at

__, 763 S.E.2d at 293. This argument is overruled.

                                          G. ROTC

      Defendant argues the trial court erred by concluding the Reserved Officers’

Training Corps (“ROTC”) funds were not restricted. We disagree.

      The trial court’s findings of fact regarding the ROTC funds state:

             44. CCS included moneys designated as “ROTC” in its
             Special Revenue Fund during fiscal year 2009-10 to
             reimburse the salaries of its high school teachers teaching
             reserve officers’ training corps courses (“ROTC”). CCS
             offers ROTC courses to high school students as part of its
             general high school program and regular high school
             curriculum.

             45.    CCS received ROTC moneys from the federal
             government in connection with its operation of federal
             programs. During 2009-10, CCS used other moneys from
             its general fund to pay for the salaries and benefits of its
             ROTC teachers in the K-12 population, and the federal
             government provided a reimbursement to CCS for such
             expenditures.     The federal government places no
             restriction on the use of the reimbursement funds once
             received by CCS.

      Evidence regarding the origin, purpose, and use of the ROTC funds tended to

show the following: Mr. Lee testified the ROTC funds are reimbursed by the United


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                                    Opinion of the Court



States Armed Services for partial payment of ROTC instructors’ salaries.             The

instructors’ salaries are initially paid out of the current expense fund.        CCS is

subsequently partially reimbursed by the federal government. Mr. Lee testified the

ROTC funds were included in the current expense fund prior to the 2009-2010 school

year.

        The trial court’s findings of fact indicate the origin of the ROTC funds was from

the federal government. These funds were used to reimburse ROTC instructors’

salaries paid from CCS’s current expense fund. The transcript and evidence clearly

show the federal government did not restrict the ROTC funds to a specific purpose.

        Competent evidence supports the trial court’s finding of fact that “[t]he federal

government places no restriction on the use of the reimbursement funds once received

by CCS.” These findings of fact support the trial court’s conclusion that the ROTC

funds were not restricted based on origin, purpose, or use. See Thomas Jefferson II,

__ N.C. App. at __, 763 S.E.2d at 293. This argument is overruled.

                                H. WorkForce Investment Act

        Defendant argues the trial court erred in concluding WorkForce Investment

Act (“WIA”) funds were not restricted. We disagree.

        The trial court’s findings of fact regarding WIA funds state:

              52.    During 2009-10, CCS used moneys designated in its
              audit as “WIA,” meaning WorkForce Investment Act, to
              support, prepare, and train students to enter the workforce


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                                 Opinion of the Court



            upon graduation from high school. The provision of
            preparing and training high school students for the
            workforce is part of CCS’s general educational program
            and its regular curriculum.

            53.    CCS received the WIA funds as a federal grant
            through Isothermal Community College, which distributes
            moneys under the WorkForce Investment Act program to
            school systems within the state. The evidence reveals that
            CCS had discretion in deciding how to spend this grant for
            training students to enter the workforce upon graduation.
            In 2009-10, CCS chose to use this grant to offset the
            salaries of two employees to work at CCS’s Job Link Center
            and to pay the hourly wages of students that were placed
            in the workforce through the program.

      Testimony regarding the origin, purpose, and use of the WIA funds tended to

show the following: Mr. Lee testified WIA is a program administered by the

Isothermal Community College to transition CCS students into the workforce. Mr.

Fogelman testified he was responsible for overseeing WIA money.

      Mr. Fogelman stated WIA is a federal program through which the federal

government distributes money to the states. He explained the states allocate this

money in the form of block grants to school systems through workforce development

boards.

      Mr. Fogelman testified CCS submitted a grant application to the workforce

development board, in which it requested a certain amount of WIA funds. CCS

largely spent the money it received to pay the salaries of students who were working

for various employers through the program. WIA funds were also used to pay two


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                                    Opinion of the Court



employees who worked at the Job Link Center, which assists students in finding

employment.

      Mr. Fogelman stated WIA funds were primarily used to serve the general K-

12 population of CCS, because the program is open to every age-eligible student. He

testified every student in the school, who qualified, could participate in the program.

      The trial court’s findings of fact regarding WIA funds indicate the funds

originated from the federal government and were allocated throughout North

Carolina. WIA funds were used to pay two employees at the Job Link Center and to

pay the salaries of those students who participated in the program.

      Competent evidence supports the trial court’s findings of facts regarding WIA

funds. These findings of fact support the trial court’s conclusion that WIA funds were

not restricted based on the origin, purpose, and use of these funds. See Thomas

Jefferson II, __ N.C. App. at __, 763 S.E.2d at 293. This argument is overruled.

                                       I. Gear Up Grant

      Defendant argues the trial court erred by concluding the Gear Up Grant funds

were not restricted. We disagree.

      The trial court’s finding of fact regarding the Gear Up Grant funds states:

              55. CCS included moneys designated as “Gear Up Grant”
              in its Special Revenue Fund during fiscal year 2009-10.
              CCS received this grant from the University of North
              Carolina to support providing programs that would
              increase the number of students attending a post-


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            secondary educational institution.      The provision of
            providing a program to students in grades K-12 to increase
            the number of students who attend college is part of CCS’s
            general educational programs and its regular curriculum.
            The evidence revealed that CCS was given great discretion
            in deciding how to spend its general funds in order to
            receive reimbursement funds from the Gear Up Grant. In
            2009-10, CCS used moneys from the Gear Up Grant to
            reimburse expenses for tutoring services CCS provided to
            K-12 students, to pay for the salaries and benefits of CCS
            personnel, and to provide after-school activities. The
            University of North Carolina does not restrict the use of
            the reimbursement funds once received by CCS.

      Testimony regarding the use, origin, and source of the Gear Up Grant funds

tended to show the following: Juan Cherry (“Mr. Cherry”), a Graham Elementary

School counselor, served as the “Gear Up coordinator” during the 2009-2010 school

year. Mr. Cherry testified Gear Up is a federal grant program designed to increase

the number of students who enter and succeed in post-secondary education. CCS’s

Gear Up program was a part of the grant received by the state. The North Carolina

Gear Up grant program was administered by the University of North Carolina.

Defendant provided tutors, toured university campuses, hosted mentoring programs,

and other programs to their students through the Gear Up program. These programs

were aimed at achieving higher college attendance rates.

      CCS initially spent money out of its current expense fund, and was reimbursed

through the Gear Up Grant program on a monthly basis for the money spent on the

program. CCS deposited the reimbursement money into its restricted fund. Mr.


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Cherry testified the Gear Up Grant money was spent on the general K-12 student

population, with the intention of increasing the number of CCS students who attend

college.

       The trial court’s findings of fact regarding the Gear Up Grant funds indicate

the origin of these funds was from the state government to the University of North

Carolina. These funds were spent on various programs aimed at achieving higher

college attendance rates among CCS students. The programs were made available to

the general K-12 population of CCS.

       Competent evidence supports the trial court’s finding of fact that “[t]he

University of North Carolina does not restrict the use of the reimbursement funds

once received by CCS.” These findings of fact support the trial court’s conclusion that

the Gear Up Grant funds were not restricted based on origin, purpose, or use. See

Thomas Jefferson II, __ N.C. App. at __, 763 S.E.2d at 293.          This argument is

overruled.

                                        V. Conclusion

       The trial court properly concluded certain funds, discussed supra, were not

restricted. The trial court’s findings of fact regarding the origin, purpose, and use of

certain funds are supported by competent evidence contained in the record and

transcript.




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      These findings of fact support the trial court’s conclusions of law that these

funds were not restricted, and must be included in the per-pupil share of funding

allotted to the charter schools. The order from which defendant CCS appealed is

affirmed.

      AFFIRMED.

      Judge McCULLOUGH concurs.

      Judge BRYANT concurs in part and dissents in part by separate opinion.




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 No. COA15-464 – Thomas Jefferson Classical Acad. Charter Sch. v. Cleveland Cnty.
 Bd. of Educ.


      BRYANT, Judge, concurring in part and dissenting in part.


      I concur in the majority opinion affirming the trial court’s findings and

conclusions regarding the restricted or nonrestricted nature of certain funds;

however, I dissent from the majority’s holding that the trial court’s findings of fact

and conclusions of law support its determination that “indirect costs” and “E-rate”

funds are nonrestricted.

                                        Indirect Costs

      The majority opinion holds that the trial court did not err in finding and

concluding that “indirect costs,” which are a percentage of the total federal grant

funding that pays for the operating expenses incurred by the school system to

implement federally funded grant programs, are nonrestricted revenues.                 I

respectfully disagree with this holding. This Court has noted that “ ‘federal grants

restricted as to use’ . . . clearly have operating expenses . . . but that fact does not

make the funds ‘unrestricted.’ ” Thomas Jefferson et al. v. Cleveland Cnty. Bd. of

Educ., ___ N.C. App. ___, ___, 763 S.E.2d 288, 293 (2014) (“Thomas Jefferson II”)

(instructing the trial court on remand to determine whether funds are restricted).

The trial court specifically found that CCS received indirect costs “in connection with

its operation of federal programs.” Because the origin of revenue for indirect costs

was the federal grants themselves, and because the federal grant money was
   THOMAS JEFFERSON CLASSICAL ACAD. CHARTER SCH. V. CLEVELAND CNTY. BD. OF
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                     BRYANT, J., concurring in part and dissenting in part



restricted to specific purposes, the funding for operating expenses incurred in

connection with those grants is likewise restricted.

       Additionally, even though the trial court found that “[t]he federal government

[did] not place any restrictions on how CCS uses the reimbursements it received for

indirect costs,” it nonetheless acknowledges those funds are received in connection

with CCS’s operation of federal programs. See id. (“[W]e define ‘restricted’ funds as

those funds which have been designated by the donor for some specific program or

purpose . . . .”).

       Finally, the majority opinion focuses quite a bit on Mr. Lee’s testimony. With

regard to his testimony, it is notable that the trial court found that indirect costs

“consisted of reimbursements from the federal government,” when Mr. Lee testified

exactly to the contrary. He testified that indirect costs “are not reimbursements at

all. They are in fact a part of the full [federal] grant.” It is unclear from the record

that there is evidence to support this finding of fact by the trial court. Further, the

findings by the trial court confirm that the origin and purpose of the indirect costs

were restricted. Here, the trial court found that “CCS received [the indirect costs] in

connection with its operation of federal programs,” whose funds were restricted. To

then say that the government placed no restriction on the use of those funds is not

supported by the record, and further, violates the mandate of the Court in Thomas

Jefferson II as to the definition of “restricted” funds. See id. For these reasons, I


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                    BRYANT, J., concurring in part and dissenting in part



disagree with the majority opinion regarding indirect costs, and would hold that the

indirect costs are restricted funds.

                                              E-Rate

      The majority opinion also holds that the trial court did not err in finding and

concluding that E-Rate funding was made available by the federal government for

unrestricted use for the entire K–12 population and was not used for any special

program. Again, I disagree.

      The majority opinion, as did the trial court, disregards the origin of the E-Rate

funds. The trial court’s findings are insufficient to support its conclusion that the E-

Rate funds are not restricted. The trial court, in defiance of the mandate of Thomas

Jefferson II, made conclusory findings as to use, but failed to make findings

concerning the funds’ origin and purpose. While it is true that all CCS students, staff,

and even bus drivers could use the Internet and telecommunications services

provided for by the E-Rate funds, the funds were essentially restricted because of the

nature of the strict application and approval process, which goes towards the funds’

“origin and purpose.” See id. at ___, 763 S.E.2d at 294 (instructing the trial court on

remand to determine whether funds are restricted by examining and making findings

of fact about the origins, purpose, and uses of the challenged funds). Evidence in the

record shows that the funds originated from the federal government for very specific

technological purposes and that the funds were used for those specific purposes.


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                    BRYANT, J., concurring in part and dissenting in part



      Specifically, E-Rate funds are made available to reimburse a school only after

certain pre-approved purchases are made. CCS was required to obtain approval for

the purchase of qualified technology services in advance and only then could the

school system purchase the service.           Once CCS purchased the pre-approved

telecommunications and internet access, the school system was eligible to submit an

application for reimbursement at a set rate.

      E-Rate funding was not made available by the federal government for

unrestricted use for the entire K–12 population. Rather, the E-Rate funds were

provided by the federal government for a specific purpose. Therefore, the trial court’s

finding of fact which includes the statement that “[t]he federal government does not

restrict the use of the reimbursement funds once received by CCS,” is not supported

by the evidence. To the contrary, the evidence established that E-rate funds would

never have been provided to defendant but for its compliance with the federal

government’s lengthy and detailed approval process to ensure that only qualified

technology services were purchased.

      Despite who ultimately benefited from the use of the technology, the funds

were restricted in that pre-approval was required and the funds were used for their

specified purpose. Accordingly, I would reverse the trial court and find that the E-

rate funds were restricted by the donor—the federal government—and required to be

used for a specific purpose.


                                             4
