1 1 STATE OF INDIANA ) IN THE KOSCIUSKO COUNTY COURT )ss: 2 COUNTY OF KOSCIUSKO ) Cause No. 43C01-0310-PL-731 3 CONCERNED CITIZENS FOR QUALITY EDUCATION ) 4 INC., an Indiana not-for-profit corporation; ) MARY GREEN; VALLERIE A. ROWLAND; REBECCA S. ) 5 THOMAS and GORDON H. VANATOR, ) ) 6 Plaintiffs, ) ) 7 vs. ) ) 8 WARSAW COMMUNITY SCHOOL CORPORATION; DR. ) DAVID McGUIRE, Individually and as ) 9 Superintendent of the Warsaw Community School ) Corporation; RANDE THORPE, Individually and ) 10 as CFO of the Warsaw Community School ) Corporation; CRAIG ALLEBACH, LARRY CHAMBERLIN,) 11 CATHY FOLK, JAMES FOLK, MARK MINATEL, RON ) YEITER, and GENE ENGLAND, Individually and as ) 12 Members of the Board of Trustees of Warsaw ) Community School Corporation, ) 13 ) Defendants. ) 14 15 The Deposition of Dr. David McGuire 16 Date: Friday, May 28, 2004 17 Time: 12:50 p.m. 18 Place: 1 Administrative Drive Warsaw, Indiana 19 20 Called as a witness herein in accordance with the Rules of Civil Procedure 21 22 Before Lori F. Matthaidess, Certified Shorthand Reporter 23 SUMMIT CITY REPORTING, INC. 24 Certified Shorthand Reporters 3492-B Stellhorn Road 25 Fort Wayne, Indiana 46815 2 1 APPEARANCES OF COUNSEL: 2 3 For the Plaintiffs: 4 John R. Price Attorney At Law 5 John R. Price & Associates 9000 Keystone Crossing 6 Suite 150 Indianapolis, Indiana 46240 7 (317) 844-8822 8 9 For the Defendants: 10 Thomas E. Wheeler Attorney At Law 11 Locke Reynolds, L.L.P. 201 North Illinois Street 12 Suite 1000 P.O. Box 44961 13 Indianapolis, Indiana 46244 (317) 237-3800 14 15 Also Present: 16 Rande Thorpe Jim Foth 17 Max Reed Jeff Dotson 18 Lisa McCoy 19 20 21 22 23 24 25 3 1 INDEX 2 3 The Deposition of Dr. David McGuire 4 DIRECT EXAMINATION 5 By Mr. Price................................ Page 4 6 7 8 EXHIBITS 9 OFFERED 10 For the Plaintiff: 11 M - Notes from taped interview with Dave McGuire 16 N - Student Ratios In Elementary Schools 26 12 O - Board Report - August 18, 2003 36 P - Times-Union Article dated April 22, 2003 39 13 Q - Board Report dated September 15, 2003 63 R - Regular Board Meetings - September 15, 2003 72 14 S - Strategic Planning Options for WCS Facilities 78 15 16 17 18 19 20 21 22 23 24 25 4 1 Dr. David McGuire, 2 being previously duly sworn 3 testified as follows: 4 DIRECT EXAMINATION 5 BY MR. PRICE: 6 Q. State your name please. 7 A. David B. McGuire. 8 Q. Dr. McGuire, you've taken--had your deposition 9 taken in the past; is that correct? 10 A. No, I haven't. I have to apologize. My hearing 11 aid died earlier on, so I might have to ask you to 12 repeat. 13 Q. I'll try to speak up to help in that process. 14 You've never been deposed before? 15 A. Not that I recall. 16 Q. But you've attended a deposition? 17 A. Yes. 18 Q. And so you heard the rules of engagement. Did you 19 have any questions about how we're going to do 20 this? 21 A. No. 22 Q. But because you've indicated a hearing situation, 23 please tell me if you can't hear my question or if 24 you don't understand it. If you don't tell me 25 that, I'll assume that you did hear it and did 5 1 understand it; is that fair? 2 A. That's fair. 3 Q. Okay. What's your address? 4 A. 313 West Main Street, Warsaw, Indiana. 5 Q. And your age? 6 A. 56. 7 Q. Your marital status? 8 A. Married. 9 Q. Children? 10 A. Two. 11 Q. Your educational background? 12 A. I have a bachelor's in secondary education from 13 Manchester College. I have a master's in 14 secondary education from St. Francis College. I 15 have an EDS from AU; supervision administration 16 from Ball State and a doctorate in administration 17 in supervision from Ball State. 18 Q. When did you obtain your doctorate? 19 A. 2001. 20 Q. Beginning after your undergraduate degree, tell me 21 about your work background. 22 A. I worked as a substitute teacher and a glass 23 cutter the first year out of college. Then I 24 taught for two years. 25 Q. Where did you work as a teacher? 6 1 A. Substitute teacher here in Warsaw. 2 Q. Warsaw. Go ahead. 3 A. Then I taught for two years at Southwood High 4 School. 5 Q. Okay. 6 A. Then I was out of teaching and I was cutting glass 7 for 14 years, I believe. 8 A. Then I came back in 1986 or '87, as a teacher with 9 Warsaw Community Schools and-- 10 Q. What did you teach? 11 A. I taught U.S. History and World History. 12 Q. Okay. Go ahead. 13 A. And also adult ed. A year then at Wallace E. High 14 School teaching special ed, and the following year 15 teaching for the NCI Co-op, which is Warsaw 16 Community Schools-- 17 Q. When you say "the following year," what year was 18 that? 19 A. Probably '88. 20 Q. All right. Go ahead. 21 A. --as an alternative school teacher. In 1990, I 22 became the director of the Alternative Learning 23 Center, and I think in probably '93, I became the 24 principal at Atwood Elementary. I held that 25 position for three years concurrently also serving 7 1 as the director of the Alternative Learning 2 Center. Then I became a principal of Lake View 3 Middle School for three years. 4 Q. What years? 5 A. Probably is '97 through 2000. 6 Q. Okay. 7 A. 2001, I was the assistant superintendent here, and 8 2002, I became the superintendent. 9 Q. And have you served continuously since 2002 as the 10 superintendent? 11 A. Yes. 12 Q. Are you under contract? 13 A. Yes. 14 Q. And when does that contract expire? 15 A. It will expire in two more years. 16 Q. You recommended to the board of trustees of Warsaw 17 Community Schools that they vote to close Atwood, 18 Claypool and Silver Lake for the school year 2004- 19 2005; is that correct? 20 A. Yes. 21 Q. For all of the balance of my questions to save 22 saying "Atwood, Claypool and Silver Lake," I'm 23 going to refer to them as "the three schools"? 24 A. That's fine. 25 Q. Was your recommendation to close the three schools 8 1 based in any manner as a way to provide a source 2 of funding to pay for this litigation? 3 A. No. 4 Q. Would that have been possible in that the 5 litigation wasn't filed until after the decision 6 was made to close the schools? 7 A. I'm not sure I understand your question. 8 Q. Which came first, the decision to close the 9 schools or the lawsuit about the closing? 10 A. The decision to close the schools. 11 Q. So as a timing and logical manner, you couldn't 12 have been anticipating saving money by closing the 13 schools to pay for this litigation, could you? 14 A. No. 15 Q. Was your recommendation to close the three schools 16 based in any manner on your desire to address 17 other pressing fiscal issues? 18 A. Repeat it please. 19 Q. Sure. Was your recommendation to close the three 20 schools based in any manner upon your desire to 21 address other pressing fiscal issues? 22 A. Yes. 23 Q. Can you tell me what pressing fiscal issues those 24 were? 25 A. We were seeing declining end of year balances in 9 1 our general fund. We had been seeing them for 2 several years and had taken a number of different 3 steps to try to reduce the expenditures without 4 reducing services to students. 5 Q. Now, you were here when Mr. Thorpe testified? 6 A. Yes. 7 Q. And did you hear his testimony that in the period 8 from the beginning of 2000 to the end 2003 in 9 total expenditures, excluding excluded 10 expenditures, that the level of spending went from 11 approximately $51,000,000 to approximately 12 $68,000,000, roughly? 13 A. I heard you make that assertion. 14 Q. Well, did-- I'm not actually asking about my 15 assertions. My question is, let me just hand you 16 some notes made on an exhibit that's in evidence. 17 A. Right. 18 Q. And ask you if you agree or disagree with the 19 increase in spending from about $51,000,000 to 20 about $68,000,000 during that period? 21 A. I know that overall funding-- Because we started 22 a construction project during that time, I know 23 that there was an increase in spending, yes. 24 Q. Now, I know that your recommendation to close the 25 schools included you saying that you hoped to save 10 1 approximately $300,000; correct? 2 A. That's correct. 3 Q. Would it have been possible had you chosen to do 4 so to look for those $300 (sic) in savings in 5 other areas of the total budget? 6 A. Actually that's-- 7 MR. WHEELER: Just for clarification, I 8 think you meant to say $300,000. 9 MR. PRICE: What did I say? 10 MR. WHEELER: $300. That would have been 11 easy. 12 MR. PRICE: $300. I can even say that. 13 BY MR. PRICE: 14 Q. $300,000. Now, when you went to the board and 15 recommended that the school corporation close all 16 three schools, did you recommend any other options 17 to the school board? 18 A. Initially, I had suggested closing four schools 19 and building two. 20 Q. My understanding is that due to a--the submission 21 of about 1,000 signatures requesting a 22 remonstrance, you withdrew that suggestion? 23 A. That's correct. 24 Q. My question then relates to what happened after 25 that-- 11 1 A. Okay. 2 Q. --when you went to the school board, I believe it 3 was in September, and recommended that the three 4 schools be closed? When you put that in front of 5 the board of trustees, did you give them any other 6 options? 7 A. That was-- They asked for my recommendation. I 8 simply gave them my recommendation. 9 Q. Okay. My question is, was that your only 10 recommendation? 11 A. Yes. 12 Q. That recommendation did not include building any 13 current schools? It only recommended closing 14 Atwood, Claypool and Silver Lake; correct? 15 A. Yes. 16 Q. Is the total number of students that would be 17 transferred from those three schools approximately 18 437? 19 A. Yes. 20 Q. I'm going to ask you, if you would please, Doctor, 21 to go to your affidavit that was submitted to the 22 Court and turn to Tab D, the Odle, McGuire and 23 Shook study. 24 A. Yes. 25 Q. If you would please turn to page 9. 12 1 A. Where do I see the page numbers? 2 Q. It's up on the top corner. It's kind of hidden. 3 A. I see. Okay. 4 Q. Let's come down to the third paragraph and let me 5 read it to you and let me ask you a couple of 6 questions. "In grades one through sixth, 7 classroom utilization for the school corporation 8 is at 96 percent, which is above the standard. 9 Six of the ten schools are at 100 percent or more 10 utilization." My first question is, what is the 11 standard? 12 A. Apparently they were referring to some standard 13 that they were referencing. I-- 14 Q. Do you know what that standard is? 15 A. There has been a number of different standards 16 published. They're national standards, state 17 standards and there's been state recommendations, 18 so I really don't know which of those they're 19 referring to. 20 Q. So you don't know which one they're referring to? 21 A. No. 22 Q. Are you saying that there are varying or different 23 standards for classroom utilization across the 24 country? 25 A. Yes, and I think they would be more characterized 13 1 as recommendations. 2 Q. Let's go to the second sentence. "Six of the ten 3 schools are at 100 percent or more utilization." 4 Can you tell me, either from looking at this study 5 or because you know, which six schools at the time 6 they wrote this were at 100 percent? 7 A. I can't tell you off the top of my head. 8 Q. When you made your decision to close the three 9 schools, you had this study in your possession; is 10 that correct? 11 A. Yes, I did. 12 Q. And you knew at that time that Odle McGuire Shook 13 had concluded that six of the ten elementary 14 schools were at 100 percent because they put that 15 in writing? 16 A. I knew that. 17 Q. When you were going through your decision making 18 process to make the recommendation to close the 19 three schools, did you inquire from either Odle 20 McGuire Shook or your own personnel as to which 21 of the schools were already at 100 percent 22 utilization? 23 A. I inquired by way of the building principals as to 24 what the capacities were in their buildings and if 25 they could expand to handle the additional 14 1 students. 2 Q. You do not have-- Let me rephrase that. Strike 3 that. Do you have any study or outside 4 professional evaluation that advised you to close 5 the three elementary schools period without any 6 other building? 7 A. No. 8 Q. In closing the three schools, do you have plans as 9 we sit here today to start construction of new 10 elementary school buildings? 11 A. No. 12 Q. At the hearing before Judge Morton, your counsel 13 suggested to the Court that the schools to which 14 the students were going to be transferred--I'm 15 going to call those the relocation schools--had 16 been remodeled, I think was his phrase, and in 17 your affidavit you use three words: reconfigure, 18 conversion and rededicated? 19 MR. WHEELER: I'm going to object. Are 20 you done with the question? 21 MR. PRICE: Not quite. Let me just finish 22 it. 23 BY MR. PRICE: 24 Q. My question, if you would please, would you tell 25 me, the changes, the rededication, the 15 1 reconfiguration, the conversion, or the remodeling 2 that has occurred at this point in time? 3 MR. WHEELER: My objection is solely to 4 the characterization as to the statement made by 5 counsel to the Court. I believe the indication 6 was more than one of the schools had been 7 remodeled and some have been reconfigure. I don't 8 think I said they have all been remodeled. Answer 9 the question. 10 BY MR. PRICE: 11 Q. With that proviso, tell me about the six 12 schools--the sixth relocation schools. What 13 reconfiguration, conversion, rededication or 14 remodeling has occurred? 15 A. Madison Elementary had classroom space and a 16 gymnasium added which freed up a multipurpose 17 space as well. 18 Q. Was that in 1989? 19 A. I believe so. No, not '89. It would have been 20 more like '99. 21 Q. I'm sorry. Excuse me. 1999. Anything else? 22 A. I'm trying to think. In terms of reconfigure, 23 most of the reconfiguring will occur over the 24 summer. 25 Q. It hasn't happened yet? 16 1 A. It hasn't happened. 2 Q. Let's come back to the 1999 for Madison. I know 3 some changes occurred there, but can you tell me 4 what occurred in 1999? 5 A. An addition was placed on the building. 6 Q. Okay. How many classrooms did that add? 7 A. I believe it added four, I think. 8 Q. Okay. Now, let's go to page 9 of tab D. Do you 9 see the fourth paragraph at the top of page 9, 10 which says, "The educational program of today 11 demands more classroom space than required a few 12 years ago. Classrooms are now needed for 13 technology, PSL programs, special education, 14 gifted/talented, art, music, Title I, et cetera. 15 As enrollments and support programs are added or 16 modified, there will continue to be a need for 17 additional rooms and space." Do you see that? 18 A. Yes. 19 Q. Would you agree with the Odle McGuire Shook 20 statement that we just read? 21 A. In general, yes. 22 (Plaintiffs' Exhibit M was 23 introduced into evidence.) 24 BY MR. PRICE: 25 Q. Okay. I'm going to hand you a document that's 17 1 been marked as Exhibit M. Let's just take a 2 minute, if you would please. If you would read 3 through this document, and I'll ask you a couple 4 of questions. First question, sir, is: Do you 5 remember granting an interview on WRSW on or about 6 December 5 of 2003? 7 A. Yes. 8 Q. Did you say on the air, "We will also have our 9 schools at full capacity or at perhaps capacity 10 plus in some cases"? 11 A. It's possible. 12 Q. Which-- 13 A. I don't recall that, but it's very possible. 14 Q. Which schools, Dr. McGuire, to which school 15 students will be transferred will be at "full 16 capacity" and which ones will be at "capacity 17 plus"? 18 A. Actually I don't think any of them are going to be 19 at capacity plus. We feel like we're going to 20 actually be able to fit them in. At the time I 21 spoke these words, I was thinking we would have to 22 do a full redistricting, and as it turned out we 23 had enough capacity at the three primary receiving 24 buildings that that wasn't necessary. 25 Q. So though those were your words last September, 18 1 today it's your testimony there would not be any 2 capacity plus schools? 3 A. Right. 4 Q. Let's go to page 3 of your affidavit. In 5 paragraph 5, Dr. McGuire, you've represented to 6 the Court in the chart that's on here with three 7 columns starting from the right, the 2004-2005 8 enrollment which would mean the transfer of 437 9 students. The middle column would be the current 10 including the three open schools, and then in the 11 left column you put a column called historic 12 highs; is that correct? 13 A. Yeah. I'm not sure if I-- 14 MR. WHEELER: He was going right to left. 15 BY MR. PRICE: 16 Q. I went right to left. 17 A. Oh, okay. 18 Q. Let's talk about historic highs for just a minute. 19 Can you tell me when the Eisenhower Elementary 20 school had 630 students? 21 A. They haven't as of yet. We are projecting that 22 with the new use of rooms. 23 Q. So the word "historic," I generally thought that 24 history meant past but what you're saying is this 25 is a future historic high? 19 1 A. Right. 2 Q. But it's never been that high before? 3 A. No. 4 Q. Do you know how many classrooms there are in the 5 Eisenhower Elementary school? 6 A. Not off the top of my head. I could count them 7 up. 8 Q. Let's turn to Exhibit D--tab D in your affidavit 9 and go to page 12. Okay. 10 Q. Do you see that on this chart from the Odle 11 McGuire Shook study that under the column marked 12 "school," three down we find Eisenhower? 13 A. Right. 14 Q. And then adding the two Kindergarten rooms and the 15 24 first through sixth, we come up with a total of 16 26 rooms? 17 A. Right. 18 Q. There haven't been any added since this study was 19 done, have there? 20 A. No. Those were incorrect. 21 Q. The Odle McGuire Shook count of rooms was 22 incorrect? 23 A. I'll qualify that. There were rooms that could 24 have been counted that were not. They were simply 25 rooms that were being used for something else and 20 1 so they were not counted as classrooms at that 2 time. 3 Q. What does the phrase "rooms available" mean to 4 you? 5 A. I have no idea. I didn't write the report. 6 Q. The next column says "rooms used," which is 21. 7 Is it possible that what you just said is maybe 8 reflected in these two columns, there's 26 9 classrooms but at that time only 21 were in use? 10 A. There are pods of classes, and I believe there 11 were spare classrooms in each of those pods, but 12 there are also additional rooms that can be used 13 as classroom also. 14 Q. Is it your testimony, Dr. McGuire, that your 15 school corporation paid a professional 16 organization to come in and make an analysis in 17 which they could not even count the number of 18 rooms available? 19 A. I was not responsible for this. I would say that 20 they are using a different way of counting than I 21 would have counted. 22 Q. This document that we're looking at, page 12, tab 23 D, you attached to your affidavit to submit to the 24 Court, did you not? 25 A. Yes. 21 1 Q. When you did that, did you inform the Court that 2 there were gross errors in the number of 3 classrooms in the study? 4 A. I believe you will find in my affidavit that I did 5 refer to there being different assumptions about 6 room usage and we disputed the capacity numbers. 7 Q. And you stated that the numbers were wrong? 8 A. I believe I stated something to that effect on 9 page 3, paragraph 5, "The capacity used in other 10 studies were established based on an assumption in 11 specific usage for rooms currently designated as 12 the standard classrooms. As capacity needs 13 change, specific room use will also change." 14 Q. Again, I would like to come back to the chart on 15 page 12. Maybe I'm not understanding your 16 testimony. At the time they did the study, they 17 said they were 26 rooms available at Eisenhower 18 and only 21 being used. What was your count of 19 the rooms being at Eisenhower? 20 A. I would have to actually go physically to the 21 chart that Mr. Geisinger (phonetic), the principal 22 at Eisenhower, gave me that is appended to my 23 affidavit. 24 Q. Okay. Let's do that. You're looking at tab B? 25 A. Yes. Tab B, the second page. Would you like me 22 1 to count them or do you want to? 2 Q. I think I would like you to. And when you're 3 counting them, if you would tell me what it is 4 you're counting. 5 A. I'm counting the ones that are labeled with a 6 name. 7 Q. Okay. 8 A. Just offhand, I see in the two branches both right 9 and left of the center, there are, I believe, 28 10 classrooms that have a teacher's name attached. 11 In addition, you see an art room and a music room 12 and a professional library that could eventually 13 be used as a classroom, if necessary. There's 14 also a group room that's not counted. 15 Q. Do classes meet in the group room? 16 A. They can. 17 Q. Or they can meet in the hall but they don't 18 generally, do they? 19 A. Generally they do for special purposes. 20 Q. So it's your testimony there are 28 and not 26 21 regular classrooms and in addition to that an art 22 room-- 23 A. I believe there are more than that. 24 Q. I thought you said 28. I'm sorry. 25 MR. WHEELER: 28 with names. 23 1 A. 28 with names attached and but there are 2 additional-- 3 BY MR. PRICE: 4 Q. There's an art room, a music room and a 5 professional library that could be used as a 6 classroom and group room that can be used as an 7 additional room. Is the art room-- 8 A. And two computer labs also which could be-- 9 MR. WHEELER: Which are regular 10 classrooms. 11 A. Are regular-sized classrooms. 12 MR. PRICE: If you're going to testify, 13 then you will have to raise your hand and be 14 sworn. 15 MR. WHEELER: You have to count them up 16 correctly, John. 17 BY MR. PRICE: 18 Q. Is that a regularly used classroom during the 19 daytime for all classes? 20 A. Yes. It is not used all five days of the week all 21 of the time. 22 Q. So there are 28 plus 3? Am I counting that right? 23 The professional library is not used as a 24 classroom; correct? 25 A. No, it is not. 24 1 Q. So is it 28 plus music and art? 2 A. That would be-- I believe that would be correct. 3 Q. So would that be 30? 4 A. And I need to clarify that. Of those 28, two of 5 those are listed as computer labs, but they are 6 standards classrooms. 7 Q. They are what? I'm sorry. 8 A. They are standard classrooms that can be used. 9 Q. Where are they on these? 10 A. They are on the left-hand side. 11 Q. And we have the professional library? 12 A. Yes. 13 Q. But classes are not planned to meet in here; is 14 that correct? 15 A. Yeah. 32 plus art, music and professional library 16 and also there's a storage room there that is-- 17 Q. Is that what we used to call a closet? 18 A. It's the same size as a standard classroom, 19 actually a little larger than the standard 20 classroom. 21 Q. Are you going to use that? Are you going to put 22 kids in the storage room? 23 A. No. As you see there's no name attached to 24 that. 25 Q. Let's go back to page 12 again, tab D. I know you 25 1 said you weren't responsible when the study came 2 in, but can you tell me who was responsible for 3 reviewing this material? 4 A. An earlier superintendent and an earlier board. 5 Q. Do your minutes or your personal recollection tell 6 you that at any point that superintendent or that 7 board went back to Odle McGuire Shook and said, 8 "Don't you guys know how to count?" or words to 9 that effect? 10 A. Actually my recollection is that Randy Thorpe did 11 object to the numbers that they used for capacity, 12 both in this study and in the Boyd study. 13 Q. Was that true for every school? 14 A. Just in general he felt like they could have done 15 a better job counting. 16 Q. Let's look at Washington. While we're on this 17 chart, it shows 19 rooms available and 17 used. 18 Do you have anything else to confirm whether 19 that's an accurate number or inaccurate number? 20 A. At this point I have no way of knowing. 21 Q. Follow with me, if you would, for just a moment. 22 Let's assume that this study produced by Odle 23 McGuire Shook is accurate. 24 A. I don't assume that. 25 Q. For the purpose of my question I want you to 26 1 assume it. You're planning on placing in 2 Washington Elementary School 531 school children 3 next year; correct? 4 A. Yes. 5 Q. If 19 is accurate, would that be a ratio of 28 6 students per classroom? 7 A. I object to the rationale of your question. 8 That's not a-- It's not my assumption that's an 9 accurate count. 10 (Plaintiffs' Exhibit N was 11 introduced into evidence.) 12 BY MR. PRICE: 13 Q. I'm going to hand you what's been marked as 14 Exhibit N, as in Nancy. You've told me that the 15 number of classrooms for Eisenhower is-- Was your 16 statement 32? 17 A. Yes. 18 Q. Okay. Has anyone from Washington sent you a map 19 or told you that there are more than 19 classrooms 20 at Washington? 21 A. I believe you have the map attached to my 22 affidavit. 23 Q. Let's go to that. 24 A. Here it is. It's on-- It's not paginated. 25 MR. WHEELER: Do you have it? 27 1 MR. PRICE: I found it. 2 MR. WHEELER: He's got it. You guys are 3 working off the same page. 4 BY MR. PRICE: 5 Q. How many classrooms are in the Washington 6 Elementary School? 7 A. I believe he has 25 marked, and he doesn't mark 8 the outdoor classrooms. 9 Q. The mobile you mean? 10 A. Yes. 11 Q. So the Odle McGuire Shook study said there are 19. 12 You said there were 25? 13 A. Yes. 14 Q. Do you have any way of knowing why a professional 15 outside study would grossly underestimate the 16 number of classrooms? 17 A. No, I do not. 18 Q. Have you done a study to show what the actual 19 ratio will be in each school of students per 20 classroom? 21 A. Yes. That is attached along with the principals' 22 material charts. I think it also lists class 23 ratios by grade level. 24 Q. And in most cases, except for I believe two in the 25 second grade, those all exceed the prime time 28 1 guidelines; is that correct? 2 A. We use instructional assistants to meet the prime 3 time guidelines so I would object to 4 characterizing that as exceeding their 5 guidelines. 6 Q. Have you had the opportunity recently to read the 7 prime time statutes or the regulations promulgated 8 by the Department of Education? 9 A. Yes, sir. 10 Q. Does it provide for an exception if teaching 11 assistants are in the classroom? 12 A. There's a report that you apparently aren't privy 13 to that we have to file each year, and if they 14 find that report acceptable, they will fund it. 15 We've been funded each year. It's been our 16 practice to use the instructional assistants. 17 Q. That's been in the past? 18 A. And our practice would be no different in the 19 future. 20 Q. You don't anticipate any funding or accreditation 21 problem in the future if you're found to be in 22 excess of the prime time requirement? 23 A. No. Again, as I've said, we've utilized classroom 24 assistants for years and that's been found 25 acceptable. 29 1 Q. How many mobile classrooms under your plan will be 2 located at each one of those schools? 3 MR. WHEELER: I'm going to object to your 4 question. If you could clarify located verses 5 used. 6 BY MR. PRICE: 7 Q. Used. 8 A. At this point we feel we will be using one 9 portable at Washington, one at Lincoln and one at 10 Jefferson. 11 Q. I'm sorry. Lincoln, Washington--it sounds like a 12 trip to Washington D.C.--Lincoln, Washington and 13 Jefferson? 14 A. Yes. 15 Q. One of each? 16 A. Yes. 17 Q. And what's the reason why you will need a mobile 18 classroom if the schools are sized and 19 reconfigured? 20 A. In the case of Lincoln, they would rather use the 21 mobile classroom for the latchkey program, the 22 before and after school program. In the case of 23 Jefferson and in the case of Washington, they 24 would prefer to use the mobile classroom rather 25 than the music teacher on wheels. It's a fairly 30 1 common practice to have the special teachers 2 actually move from classroom to classroom, and 3 this would allow the teacher's to actually have 4 the use of their classroom during their prep 5 period. 6 Q. Would you go to page 10, paragraph 16 of your 7 affidavit for a moment? At the end of paragraph 8 16 you say, "This decision"--and by that I think 9 it's fair to say the closing of the three 10 schools--"was consistent with the Odle McGuire and 11 Shook and Gann McKibben recommendations." Do you 12 see that sentence? 13 A. Yes. 14 Q. Earlier I asked you if there was any study that 15 recommended the closing of the three schools 16 without at the same time recommending something 17 else and you said, "No, there wasn't." What did 18 you mean when you said that your decision was 19 consistent with those two studies? 20 MR. WHEELER: I'm going to object to the 21 question as far as it mischaracterizes the prior 22 testimony. His prior testimony was that his 23 recommendation in September of 2003 to the school 24 board was solely closing those three schools. I 25 don't think he testified there was any--what you 31 1 just said--there was a study that made a sole 2 recommendation of closing the schools verses 3 making multiple options available. 4 MR. PRICE: When you read the transcript 5 you will see that the question that I asked him 6 was-- Let me find it. 7 BY MR. PRICE: 8 Q. The question I asked you back then was, "Was your 9 recommendation to close the three"-- Strike that. 10 I'll find it. 11 MR. WHEELER: I think you asked, "Was 12 there a sole recommendation to the board? Did you 13 give them any other options?" 14 MR. PRICE: No, no, no. That was a 15 different question. I asked him-- 16 BY MR. PRICE: 17 Q. You recall the question, do you not, where I asked 18 you if there was a study? 19 A. At this point I'm confused. I'm hearing part of 20 what you're saying. I'm not sure. 21 Q. Let me reask it: Do you have any study by a 22 professional outside organization which recommends 23 closing the three schools without doing something 24 else also? 25 A. No. 32 1 Q. Okay. So tell me what you meant when you said the 2 decision was consistent with these two studies? 3 A. Both of those two studies suggest that the smaller 4 schools are inefficient and should be closed. 5 Q. But they did not recommend the closing of the 6 three schools without something else happening? 7 A. No. 8 Q. Okay. Let's go to exhibit-- This exhibit. I 9 believe it's H. It should be right here in front 10 of you. Dr. McGuire, I'm not going to spend a lot 11 of time with this because it relates to money and 12 I spent a long time with Mr. Thorpe on it. Have 13 you represented to the school corporation that 14 there will not be any staff layoffs? 15 A. I've made the commitment to our teacher 16 association that we would not lay off staff. I 17 also suggested to our support staff that I felt we 18 could make this change through attrition and not 19 lay off staff. 20 Q. I know that by Tuesday I'm going to get a document 21 from your office by FAX that gives me the detail, 22 but if you know now, you could just tell me 23 generally, of these--one, two, three, four, five, 24 six--14 positions, three have been identified-- 25 two have been identified as definitely leaving. 33 1 One we don't know. Of the balance of those, how 2 many will be going into a slot that's vacant and 3 how many are just being moved, if you know? 4 A. What I know is that we have enough employees that 5 I've anticipated that all of them will go into a 6 slot that was being vacated by someone else. We 7 will actually reduce staff in terms of overall 8 staff but we will not be reducing those 9 individuals. 10 Q. So 14 staff persons minus three that we've 11 discussed? 12 A. No, those are included. 13 Q. Okay. Fourteen staff persons are going to move 14 into empty slots, every single one of them? 15 A. Eventually. 16 Q. Okay. 17 A. And I've made that very clear. 18 Q. Eventually we're all dead, but that's not the 19 question. 20 A. But I've made that very clear. 21 Q. In the first year how many? 22 A. I've anticipated half of them by the end of the 23 first year. 24 Q. Will the document that you will FAX to me on 25 Tuesday indicate not only the slots or the 34 1 projected slots but the timing? 2 A. All we can tell you at this point is the ones that 3 have actually committed to retiring or quit or 4 whatever. 5 MR. WHEELER: We can show what we have 6 right now. 7 MR. PRICE: That's what I meant. 8 MR. WHEELER: There may be retirements and 9 stuff during the course of the summer. 10 MR. PRICE: That's what I'm interested in 11 is right now. 12 MR. WHEELER: And we've committed to 13 providing you that on Tuesday. 14 BY MR. PRICE: 15 Q. Go with me on this next question a little bit. 16 Let's assume that Judge Morton for purposes of my 17 question had denied the motion to dismiss and we 18 were heading for a June 22nd hearing, and he heard 19 the public interest lawsuit testimony, and he said 20 that the decision to close the three schools was 21 arbitrary and capricious and he restrained it and 22 the three schools would stay open for 2004-2005, 23 the slots that you're talking about, the attrition 24 slots, what would have happened to those, the five 25 or six? 35 1 A. We would need to refill them. 2 Q. From somebody else? 3 A. From somebody else. We would have had to hire 4 people. 5 Q. Okay. By the way, you don't assert, do you, that 6 you're going to save money on water? 7 A. We're going to save money on water. I don't know 8 how much. 9 Q. When that happens I'll be interested in seeing how 10 you do that. 11 MR. WHEELER: We'll show you the bills. 12 A. I would be happy to do that. 13 BY MR. PRICE: 14 Q. I mean-- Okay. Dr. McGuire, you were present in 15 court on the 7th of May, were you not? 16 A. Yes. 17 Q. Did you hear counsel state to the Court that if 18 the schools are overcrowded after closing the 19 three schools, that you could move the 6th grade 20 to the middle schools? 21 A. Yes. 22 Q. And, in fact, is it not true in your affidavit 23 that you said on page 4, paragraph 5, beginning 24 towards the middle of third page, "Should there be 25 overcrowding at the elementary schools in 2004- 36 1 2005 or thereafter, the school could simply move 2 the 6th grade classes, 500 students in 2003-4, 479 3 students in 2004 to 5, to the middle schools 4 freeing up 500 spaces at the elementary schools." 5 That's what you told the Court; is that correct? 6 A. Yes. 7 Q. I'm going to hand you what's been marked as 8 Plaintiff's Exhibit D (sic). 9 MR. WHEELER: What is it? That shouldn't 10 be D. 11 MR. PRICE: I can't read my own writing. 12 THE WITNESS: Is it O? 13 MR. WHEELER: The last one was N. 14 MR. PRICE: Let's go with O. 15 (Plaintiffs' Exhibit O was 16 introduced into evidence.) 17 BY MR. PRICE: 18 Q. Do you recognize this document? 19 A. Yes. 20 Q. What is this document? 21 A. It's from a board report. 22 Q. I'm sorry? 23 A. It is a board report. 24 Q. Was this prepared by you? 25 A. I believe so. 37 1 Q. If you go to the third page, does it show at the 2 bottom prepared by you? 3 A. Yes, it does. 4 Q. While you're on that page, would you look at the 5 paragraph with the underlined statement. See 6 where it says, "I am proposing"? 7 A. Right. 8 Q. Would you read that paragraph in the record 9 please. 10 A. "I'm proposing that the board approve closing 11 Atwood, Claypool and Silver Lake at the end of the 12 2003-2004 school year. I initially proposed 13 moving the 6th grade to the middle school, thereby 14 creating the needed space in the remaining 15 buildings. It became clear both from the comments 16 of the public and supporters of the building 17 program that there's little support for that 18 option. The option that is left is to move the 19 students into the six remaining schools including 20 Harrison." 21 Q. When you prepared this document for the August 18 22 board report, it was true that there was very 23 little support for moving the 6th grade to the 24 middle schools; correct? 25 A. Yes. 38 1 Q. But when you turned in your affidavit to the 2 Court, did you mention to the Court that the 3 statement, "The school could simply move the 6th 4 grade" had a slide modifier to it, which is you 5 knew back in September of the prior year that 6 there was very little support for that option? 7 A. I knew it would not be popular, but it would still 8 be something that we could easily do. 9 Q. Could it have been something that-- Could it be 10 something that you could simply do using your 11 word? 12 A. Yes. 13 Q. With no problems? 14 A. I guess I would have to ask you to define 15 problems. There would be some logistics and 16 modifications that would have to occur. 17 Q. I'm talking about approval problems. 18 A. Not approval. 19 Q. What did you mean in your August 18 document when 20 you said there's little support for that option? 21 A. Meaning that I listened to the public at the 22 different work sessions and hearings and board 23 meetings, and people were generally not in favor 24 of that option. 25 Q. What changed between August when you said that on 39 1 this document and last month when you said it was 2 a simple move in the affidavit? 3 A. Nothing. We're talking apples and oranges. One 4 is public perception of whether or not it should 5 be done and the other is, "Can it be done?" And 6 it can easily be done. 7 Q. Just so I understand, when you told the judge it 8 was a simple move, you didn't mention that you had 9 said the previous September that there was no 10 support for it? 11 A. You're correct. It's right in front of you. I 12 did not say that. 13 Q. Who is Dr. Jerome McKibben? 14 A. He's a demographer. 15 (Plaintiffs' Exhibit P was 16 introduced into evidence.) 17 BY MR. PRICE: 18 Q. I'm going to hand you what's been marked as 19 Exhibit P, and ask you if you can tell me if you 20 had seen this newspaper article before? 21 A. Yes, I have. 22 Q. In the second paragraph of this article, it 23 states, "A report on the latest demographics"-- 24 MR. WHEELER: Let me make a preliminary 25 objection. There's extraneous marks on the 40 1 document, and I'm assuming for purposes of the 2 deposition-- Obviously I'm going to object to 3 them being admitted in like fashion. Those aren't 4 in the original newspapers, and somebody added 5 those marks. 6 MR. PRICE: It's possible they were in the 7 newspaper but not very likely. 8 MR. WHEELER: I suspect not. 9 MR. PRICE: Especially since this is an 10 Internet printout. 11 MR. WHEELER: I noticed the picture was 12 not on there. 13 MR. PRICE: I'll represent to you that any 14 marks on Exhibit P have been added by a person or 15 persons unknown at this point in time. 16 MR. WHEELER: I've got highlighting on 17 Exhibit F. The original has-- Somebody put a 18 nice little highlight on some of the exhibits. 19 MR. PRICE: That's meant to be my copy. 20 MR. WHEELER: It's makes it easier to find 21 what I'm looking for. 22 MR. PRICE: That's true. 23 BY MR. PRICE: 24 Q. Let's go to the second paragraph of Exhibit P, "A 25 report on the latest demographic study by Dan 41 1 McKibben Demographic Consulting was given at 2 Monday's school board meeting. Jerome M. 3 McKibben, Ph.D., recommended three options," and I 4 want to ask you about those three. Let's look at 5 the first one, "Closing four elementary schools 6 and building two news schools." 7 A. No. 1, I need to object to the idea that he gave 8 that as a report. He was-- He did not recommend 9 that. He was simply asked in the board meeting 10 after giving his report if he would like to make 11 comments, and so he didn't feel strongly enough 12 about those to include those in his report. 13 Q. But he did when he was asked at the board meeting? 14 A. He was asked for off-the-cuff comments. 15 Q. Okay. Let's go with off the cuff. The three off 16 the cuffs that he gave, the first one would you 17 agree that he said, "closing four elementary 18 schools and building two new schools"? 19 A. Yes. 20 Q. Would you agree that the second off-the-cuff 21 comment he made was, "Closing three schools, 22 building a new school and expanding one school? 23 A. Yes. 24 Q. Would you agree that the third suggestion off the 25 cuff was, "Closing two schools, building no new 42 1 schools and keeping the remaining elementaries 2 within the 90 percent capacity range"? 3 A. Yes. 4 Q. Did you have the opportunity to speak with him 5 following his comments to the board about these 6 three suggestions? 7 A. If so, it was briefly. 8 Q. Did you ask him, for example, how you could close 9 two schools and keep the elementaries at a 90 10 percent capacity range in light of what we've just 11 seen in the Odle McGuire Shook study about 12 capacity? 13 A. No, I didn't. 14 Q. Did Dr. McKibben state at that meeting that it's 15 not economically feasible to run an elementary 16 school of less than 300 kids? 17 A. I believe he said-- That's probably close to 18 accurate, if not-- 19 Q. There's a quote here in the middle right above the 20 extraneous star. Do you see that? 21 A. I'm not going to verify the accuracy of the 22 reporter. 23 Q. Having never been misquoted by a newspaper, I 24 won't argue with you about that. Did you have any 25 discussion with him about this alleged statement, 43 1 if he made it, concerning the economic feasibility 2 of running an elementary school with less than 300 3 kids? 4 A. I believe he was responding to somebody's 5 question, probably a board member. I'm not real 6 certain. 7 Q. My real question is did you discuss with him what 8 he meant by that statement if he made it? 9 A. No, because it's consistent with the literature. 10 Q. I would like to ask you for just a moment, Doctor, 11 how you figure your student teacher ratios, 12 specifically Atwood and Silver Lake. If you would 13 please, turn to the portion of your affidavit 14 where you discuss ratios, which I believe is the 15 top of page 6. Do you see where it says Atwood 16 14-1 and Silver Lake 16-1? 17 A. I believe I took the total number of classroom 18 teachers and the total number of students. 19 Q. Aren't there seven teachers at Atwood? 20 A. The one teacher teaches half day. 21 Q. Okay. Seven-and-a-half or six-and-a-half? 22 A. Six-and-a-half. 23 Q. So if you have 144 divided by 6.5, does that come 24 to 22? 25 A. You have the calculator. Apparently. 44 1 Q. Do you know how you arrived at a 14 figure? I 2 mean, it looks pretty impressive to say look how 3 low it is, but what is reality? 4 A. When you first asked me, I'm trying to remember 5 how I came up with that. I thought I took the 6 lowest number of classroom--or students to 7 teacher, and this probably is the case for Atwood 8 but Silver Lake is actually one class down-- 9 actually we have two classes down there that are 10 more like 10 to 1 or 11 to 1, so I'm not certain 11 how I got it. If I used-- It's very possible 12 that I used the student teacher ratio that was low 13 at those buildings at one time, but I know it's 14 subsequently changed. 15 Q. Do you know how many teacher's there are at Silver 16 Lake? 17 A. It should be the same as Atwood, six-and-a-half. 18 Q. How many students? 19 A. Approximately 140. 20 Q. You show 151 in your document? 21 A. 151. 22 Q. Wouldn't that be 23.2? 23 A. Right. 24 Q. Would you-- 25 A. Actually I take that back. We have an additional 45 1 teacher because we split the one class so there's 2 seven-and-a-half. 3 Q. What do you mean you split the one class? I don't 4 understand it. 5 A. The one class that was initially at--when it hit 6 30, we added another teacher. 7 Q. Hit 30? 8 A. Rather than have an elementary class with 30 9 students to one teacher, we added another 10 teacher. 11 Q. Is it really seven? 12 A. I believe that's how it got down because I think 13 it got up to 32 and we split it in half and made 14 it 16 to 1. That class now is much stronger than 15 that. As we've been discussing, I know it has to 16 have been I used the lowest classroom student to 17 teacher ratio in each of the buildings. 18 Q. Is it six or seven teachers? 19 A. At Silver Lake it would be seven-and-a-half. 20 Q. Would that be 20? 21 A. Yes. The problem with that is that we can't just 22 arbitrarily divide the kids between teachers. 23 They're at different grade levels. 24 Q. I understand that, but you submitted an affidavit 25 to the Court that the class ratios at these two 46 1 schools would appear to be extremely low? 2 A. Yes. 3 Q. But the numbers tell us differently. 4 A. At the time that I wrote this, that was the class 5 ratio. 6 Q. You mean a month ago? 7 A. Yeah. I was relying on data from the first of the 8 year. 9 Q. Did you feel any compulsion to amend that when you 10 realized it was wrong? 11 A. No. It would have made it look even worse for 12 Silver Lake. 13 Q. How could it be worse to say it was 20.1 to 1 when 14 you represented it was 16 to 1? 15 A. It would have been one teacher to ten students in 16 one grade level. 17 Q. In one grade level? 18 A. In one grade level. 19 Q. But for the school-- 20 A. Not the school itself, the overall could be 21 different, but they do have-- In that school they 22 have that ratio or had that ratio at one point. 23 Q. Not at the point you signed this? 24 A. At the point I signed this, I think it had 25 actually gotten worse in terms of lower student to 47 1 teacher ratio. 2 Q. You've completely confused me. I apologize. If 3 there are seven-and-a-half teachers and 151 kids, 4 that's 20.1 to 1? 5 A. You're trying to get me to divide kids. I can't 6 parse kids. They're in separate classrooms. I 7 use the ratio that was lowest per grade level per 8 teacher. 9 Q. I apologize. I'm not trying to get you to divide 10 a kid. What I'm trying to get you to do is take 11 151 divided by 7.5 and tell me if that's 20.1? 12 A. And, again, I would have to parse children to do 13 it that way. I can't do that. 14 Q. Why are you no longer taping board meetings? 15 A. Our technology was worn out. It was simply not 16 effective. 17 Q. So you cannot replace warn out technology? 18 A. We could but we didn't feel like it was 19 necessary. 20 Q. Was there any other reason for stopping the taping 21 of board meetings? 22 A. No. 23 Q. There was a vote on it by the board? 24 A. No. 25 Q. It was your decision? 48 1 A. Yes. 2 Q. Doctor, would you agree-- And this is an 3 opportunity for you to say, "Yes, I agree" or "No, 4 I don't agree," or to give me a qualifier. This 5 is not a yes-or-no answer. Did your 6 recommendation to close the three schools appear 7 to be a short-term fix as opposed to a medium term 8 or long-term fix? 9 A. In terms of qualifiers, if I can, that it's 10 short-term for the next few years. By short term 11 I would say, yes, for the next few years this is a 12 short-term fix. 13 Q. And a few means a lot to different people? 14 A. Exactly. 15 Q. What does few mean to you? 16 A. It could be as many as four or five years 17 probably. I'm saying that at least a couple of 18 years. 19 Q. Is there a possibility that these 437 children or 20 some portion of them will be moved again in the 21 next five years? 22 A. I doubt it. We would have a lag from the time 23 that we would a start construction project until 24 we could complete it. I assume that's what you're 25 trying to get to if we're going to build 49 1 something. 2 Q. We're going to come to that in a minute. On 3 August 18, 2003, Greg Schroeder gave a board 4 report. Who is Greg Schroeder? 5 A. He's our director of maintenance. 6 Q. Do you recall him in speaking of the portable 7 classrooms, the mobile classrooms, saying they're 8 quite expensive to heat and cool? 9 A. I won't-- I don't recall that, but I wouldn't 10 dispute it either. 11 Q. Was there a recent approximate $1 million 12 technology addition to CIMC building? 13 A. Actually it's more like $1.8 million. 14 Q. Wasn't part of the purpose for that to get rid of 15 mobile classrooms? 16 A. It was to get rid of our using them for purposes 17 that weren't--that were ill suited for them. 18 Q. You were here when Mr. Thorpe testified about his 19 tier 1, tier 2 and tier 3 proposed cuts? 20 A. Right. 21 Q. Did you make a recommendation or recommendations 22 to the board as to which different proposed cuts 23 they should agree to and which ones they shouldn't 24 agree to? 25 A. Are you asking me if I commented on his report? 50 1 Q. Yes. 2 A. I didn't comment at that time I don't think. 3 Q. Did any board members ask you about your 4 recommendations? 5 A. At that time I don't believe so. 6 Q. Let me ask you what I asked Mr. Thorpe, and he 7 gave me a Hail Mary pass on it so I'll ask you. 8 On July 21st of last year, did the board approve a 9 varsity football assistant coach and two varsity 10 assistant football co-coaches? 11 A. It's certainly possible. 12 Q. He said he didn't know, and you've given me a 13 little bit of short answer. 14 A. I would say I really don't know, but I would say 15 if you have evidence to that case, I wouldn't 16 dispute it. 17 Q. I was around sports a little bit but what is a 18 varsity assistant football co-coach? I've never 19 heard that before. 20 A. We have an extracurricular pay schedule and 21 sometimes rather than have one person take the 22 whole amount, they split it. 23 Q. At the same time, July 21st of last year, did the 24 board hire or agree to approve a freshman football 25 assistant coach and two freshman football 51 1 co-coaches? 2 A. That's very possible. 3 Q. Do you know how many athletic directors, assistant 4 athletic directors, coaches, assistant coaches and 5 co-coaches that the school corporation currently 6 has? 7 A. I can answer part of that. We have one athletic 8 director and one assistant. 9 Q. How many coaches? 10 A. I have no idea. 11 Q. Who would know the answer to that? 12 A. I would if you gave me enough time to count it 13 up. 14 Q. Would that be something when you sent me the FAX 15 on Tuesday you might be able to include? Is there 16 a separate listing? 17 MR. WHEELER: Let me be clear what we're 18 providing a listing of all coaches in the school 19 corporation or just at the high school? 20 MR. PRICE: The whole school corporation 21 and not just coaches. 22 MR. WHEELER: All extracurricular 23 positions? 24 MR. PRICE: No, all coaches, co-coaches 25 assistant coaches. 52 1 MR. WHEELER: Are you trying to get to the 2 people who are paid something? 3 MR. PRICE: Yes. 4 MR. WHEELER: I guess what I would 5 probably prefer to provide to be clear is it's 6 probably easier to list all individuals in paid 7 extracurricular positions. 8 MR. PRICE: That's fine 9 MR. WHEELER: I don't know if you pay for 10 chess club, but there's a lot of that sort of 11 stuff and you can parse that out, whatever. We 12 can go off the record. 13 (An off-the-record discussion was held.) 14 BY MR. PRICE: 15 Q. Dr. McGuire, has the board under your direction of 16 superintendent had the opportunity to study in any 17 depth at all the cultural, economic or social 18 impact on the three communities in this county, 19 Claypool, Silver Lake and Atwood, that would 20 result in if they go through closing the schools 21 in those communities? 22 A. It's been something that's been discussed in work 23 sessions and commented on by the public at just 24 about, I think, probably all the board meetings. 25 Q. I understand-- 53 1 A. The bulk of the board meetings. 2 Q. I understand understandably so. If I lived in 3 Claypool next to that very nice school-- 4 Congratulations. It's a very nice school--and it 5 would be closed, I would ask the same questions. 6 My question is not have people complained about 7 this. My question is, has the board responded in 8 any way by looking into the issue? 9 MR. WHEELER: I'm going to object because 10 I think he answered your question. If you're 11 asking whether a study was commissioned, that's 12 separate. Your original question was had the 13 board responded to those by receiving input 14 related to them and his response was, "Yes." 15 MR. PRICE: That wasn't my question but 16 that's fine. 17 BY MR. PRICE: 18 Q. Has any study been performed? 19 A. We've not commissioned a study, no. 20 Q. When you decrease the number of elementary schools 21 from ten to seven, will there be an increase 22 number of teams for each sport in the elementary 23 schools? 24 A. Are you asking if we're going to have-- 25 Q. More teams. 54 1 A. More teams? 2 Q. Are you going to lose three teams? 3 A. Sure. We're going to lose three teams. 4 Q. Okay. So that decreases the opportunity for 5 students to engage in sports? 6 A. In at least one level of sports. 7 Q. Which is what? 8 A. Which would be the official team. There may very 9 well be other sport opportunities that would be 10 unaffected. In fact, I know there would be. 11 Q. At this point in time, there's been no policy 12 implemented to make sure that even though there 13 are seven schools instead of ten which could lead 14 to what you just mentioned, fewer opportunities to 15 participate in sports, the board hadn't authorized 16 any policy change yet? 17 A. No. 18 Q. Have you given any thought or the board given any 19 thought to how field trips might be restrained, 20 cut or withdrawn based upon fewer schools? 21 A. I don't understand the assumption. I can't-- I 22 don't understand why that would become a 23 question. 24 Q. Well, just as putting the same number of children 25 into one environment is going to affect sports. 55 1 I'll just ask it in a different way. Do you 2 anticipate that field trips for students will be 3 affected by the consolidation? 4 A. No. 5 Q. Can you tell me what are the future plans for 6 growth within the school system? For example, as 7 you remember from our hearing, there's a company 8 in town that is bringing in a fairly large number 9 of employees with their children. Has there been 10 any study, any internal memo, any discussion 11 beyond the obvious, "What are we going to do?", to 12 deal with the influx of new students? 13 A. Again, the McKibben study indicated we would have 14 over the course of the next decade essentially no 15 real gain. He also stated in that study that if 16 there was a change in employment, either a 17 business closing or a business opening, that could 18 impact the number of students that we would 19 receive. Beyond that, no, we have not done any 20 additional study. 21 Q. In fact, that has happened, has it not? It's 22 about to happen when Zimmer brings in 400 23 families? 24 A. We're not at all certain that is going to be the 25 case. They're saying that they're going to have 56 1 400 jobs, but we also know we're losing jobs at 2 Donnelly's which is another major employer in the 3 area. 4 Q. 400? 5 A. I have no idea. We also know there are people 6 here that would love to have those jobs. 7 Q. Well, my understanding of the release was that 8 they were bringing most of those persons to the 9 community. 10 A. I think that was inaccurate. 11 Q. It was from Zimmer so they didn't know? 12 A. No. You got that from the newspaper or the radio. 13 Q. Okay. Let me just kind of go to the bottom line. 14 A. Okay. 15 Q. You may argue with my first assumption. First 16 assumption for this question is that once you 17 close the three schools, the remaining seven 18 schools are going to be either at capacity or 19 close to capacity? 20 A. I'll accept that at face value. 21 Q. All right. If Zimmer is right-- Strike that. If 22 the newspaper accurately reported Zimmer saying 23 they were going to move those people into the 24 community, on top of the 347 kids you may be 25 moving shortly, we add another 200 or 400, do you 57 1 have-- Have you performed a study? Do you have a 2 plan for how you're going to deal with putting 3 additional children into what you've agreed would 4 be schools that are either at capacity or near 5 capacity? 6 A. We have the strategy of moving the 6th grade to 7 the middle school, if necessary, as a short-term 8 fix, and we have-- And I've said very publically 9 often enough I'm sure you have record of it. We 10 still need to examine growth as it occurs, and 11 this is not a static situation. We will being 12 looking at growth and trying to decide whether 13 it's best to build or reconfigure. 14 Q. Are you currently planning to build new schools? 15 A. No. 16 Q. Is there a 5, 10, or 15-year grand design? 17 A. Not that I've created. 18 Q. The judge referred to a grand plan twice in his 19 opinion for new building, new construction. I'm 20 not going to ask you if you know where he got 21 that. I didn't see it in any of the documents 22 submitted, and I didn't hear it in the courtroom. 23 Is there a grand plan for construction? 24 A. No. 25 Q. Let's turn to some board matters for just a 58 1 minute. How do you communicate generally with 2 your board? Is it at board meetings or is there a 3 format for communicating with them outside of 4 board meetings? 5 A. I actually do it a variety of ways. If something 6 comes up, I may e-mail them or telephone them or 7 wait and send a note to their homes on Friday. I 8 meet with most of them about once a month. I take 9 a couple of them out to lunch and just talk 10 informally, and then the rest of it is by the way 11 of reports at the board meetings. 12 Q. So during an average month besides seeing them in 13 a board meeting, individually or in groups of 14 possibly two, you have the opportunity to interact 15 with them during a non-board meeting format? 16 A. Yes. 17 Q. I have had it told to me that there have been 18 times in which you have said that you were hired 19 as superintendent to close four schools. Is that 20 an accurate? 21 A. That's inaccurate. 22 Q. That's inaccurate? 23 A. That's totally inaccurate. 24 Q. Have you ever made the statement that you were 25 hired to close any number of schools? 59 1 A. No. 2 Q. Have you stated that small schools are a luxury 3 that the corporation can't afford? 4 A. Yes. 5 Q. Is the school corporation currently or recently 6 building purely noneducational structures? 7 A. I would say no. But if you're talking about are 8 we building areas that are not classrooms in the 9 standard format, the answer is yes. 10 Q. What would those be? 11 A. We have the addition that you've pointed to on 12 this building for technology and printing and 13 teacher training areas. We have an auditorium/ 14 cafeteria expansion, weight room which is a PE 15 classroom and the wrestling room which is also a 16 PE function. I should point out the auditorium is 17 an integral part of our plans for curriculum and 18 music and both scholar and instrumental as well as 19 our theater arts program. Additionally, there are 20 outside physical developmental areas being built, 21 a football field, practice fields. 22 Q. You've characterized small schools as a luxury the 23 corporation can't afford. Do you view the 24 football field and the sports facilities that have 25 been and are being built as luxuries also? 60 1 A. No. 2 Q. Can you tell me when and where the concept of 3 building a new school at Winona Lake and closing 4 the Jefferson school came about, what the 5 derivation was? 6 A. Yeah. I was meeting with the assistant 7 superintendent and the chief financial officer, 8 and we were discussing where good places would be 9 to place a school basically because the 10 infrastructure is still not well established on 11 the northwest. Someone mentioned Grace, and I got 12 up and called the president of Grace and asked to 13 meet with him, and we basically asked if they 14 would be interested in trying to create a 15 situation where we could work out a business 16 arrangement between the current Jefferson and 17 their current soccer practice area or soccer field 18 area. 19 Q. Can you tell me, Dr. McGuire, has there been any 20 study by you-- 21 A. Uh-huh. 22 Q. --as to locating a new school in Prairie Township? 23 A. No. We've talked about that and the 24 infrastructure, like I said, has run part of the 25 way out, and we don't know at this point where 61 1 industrial parks, et cetera, will be so I 2 recommended-- And, again, this all on public 3 record that I've recommended against building out 4 there until we know where everything is going. 5 Q. My next question relates to statements have that 6 have been attributed to you by three of the former 7 plaintiffs in which they quoted you as saying if 8 parents remonstrate against the project that you 9 were planning, that with a stroke of the pen you 10 would close their schools. You've read those 11 affidavits, I assume? 12 A. Right. 13 Q. First of all, are they accurate? Did you make 14 those statements? 15 A. No. They're a compilation of things that I've 16 said and taken out of context-- 17 Q. What did you say? 18 A. --of what I've said all along at four different. 19 In areas the Jefferson area, actually not at the 20 school, but the parents and patrons from that area 21 were involved from Jefferson, Silver Lake, 22 Claypool and Atwood, and each time I tried to make 23 it very clear we're talking about two different 24 issues, one is a financial crisis that we need to 25 deal with general fund expenditures and we need to 62 1 close three schools to help control the general 2 fund expenditures. We can become more efficient 3 in our general fund by borrowing the money from a 4 different fund entirely and using that money to 5 create a more efficient structure, and so I was 6 proposing closing the four schools and building 7 two more efficient schools that would have allowed 8 us to save money in the general fund so thereby 9 essentially using capital fund and debt service to 10 shelter or make more efficient our general fund. 11 Q. When that plan was remonstrated against-- 12 A. Uh-huh. 13 Q. --that's when you decided to close the three 14 schools? 15 A. No. I decided to close-- Essentially I decided 16 to close four schools very early in the process. 17 I took one of them off the list because I didn't 18 think we could handle the capacity without moving 19 6th grade to the middle school if I closed all 20 four. 21 Q. So did I deduce from that you think you're going 22 to have to move the 6th grade now? 23 A. No. I kept the one school. The proposal is to 24 keep the one school. 25 Q. Which one is that? 63 1 A. Jefferson. 2 (Plaintiffs' Exhibit Q was 3 introduced into evidence.) 4 BY MR. PRICE: 5 Q. At the September 15th board meeting-- I'm going 6 to hand you Plaintiff's Exhibit Q. Looking at the 7 last paragraph on page 2-- Actually let me start 8 over. At the bottom of page 1 in this board 9 report which you prepared; correct? 10 A. Yes. 11 Q. At the bottom it says, "Recommendation. I 12 recommended that the board vote to close Atwood, 13 Claypool and Silver Lake Elementary Schools at the 14 end of the 2003-2004 school year." Do you see 15 that? 16 A. Yes. 17 Q. Going to the second page you state in the second 18 paragraph, "The closing will reduce operating 19 costs by approximately $300,000 for the 2004-2005 20 school year with greater savings in subsequent 21 years. It's important to note that this savings 22 will help our financial situation, that additional 23 state cuts or more state costs shifting will 24 necessitate further reductions and services to 25 students. The issue of aging buildings will need 64 1 to be addressed at a later date. One year from 2 now, allowing the remonstrance issue to rest, we 3 will need to reexamine our building needs. There 4 is strong evidence that the northwestern section, 5 the southern section and the Jefferson areas will 6 need attention in the near future." My first 7 question concerning this statement, the one-year 8 reference refers to the fact that when the 9 taxpayers' sucessful remonstrance defeated the 10 1028 published construction project, that the 11 school is statutorily prohibited on coming back 12 again on that for a year? 13 A. Correct. 14 Q. Is that what you meant when you refer to the one 15 year? 16 A. I assumed that simply because we withdrew from the 17 race, the intent would be that we let it rest. 18 Q. So the one year comes up this-- 19 A. September. 20 Q. This September. Is September when the 21 remonstrance was turned in? 22 A. September is when the board voted to-- No, I take 23 it back. It was the August meeting. 24 Q. So this August, under your interpretation of the 25 school code, you would be able to do a new 1028 if 65 1 you chose to do so? 2 A. No. I think what I was advocating here--if you 3 read it--is we would begin studying that at that 4 point. 5 Q. I see what you say and I hear what you say, but my 6 question is you could if you chose to do so do a 7 new 1028 after August? 8 A. I would assume so, yes. 9 Q. Now, if you did that-- And as part of your 10 reexamination, has there been a study that we can 11 all take a look at pointing towards the need for 12 attention in the near future, in your words the 13 northwestern and the southern and the Jefferson 14 areas? 15 A. I'm not sure I quite understand what you're trying 16 to get me to say. 17 Q. No. I'm not trying to get you to say anything. I 18 just want to know since these are your words-- 19 A. Yes. 20 Q. --that the derivation of the conclusion that these 21 are the three areas of the school district that-- 22 A. Strong evidence is based on public input. It was 23 not a formal study. 24 Q. There's no study? 25 A. No. 66 1 Q. When you say "will need attention in the near 2 future," I could go ahead and define few, but I'm 3 not sure I have your definition for near future. 4 How do you define near future? 5 A. A year or two I think we need to talk about it. 6 Q. That the study will occur? 7 A. I think we need to do that, yes. 8 Q. Does the school have wireless mobile computer 9 labs? 10 A. At this point we have one that's in kind of a-- 11 What do they call it where they're checking it out 12 or trying to do it, but it's a different-- It's 13 kind of a pilot program. We have scheduled to 14 have the mobile computer carts for two of the 15 schools. 16 Q. Is that just-- Is that just on a pilot basis at 17 this point? 18 A. No, not really. I think with the-- And I know 19 what you're referencing. You're trying to get to 20 probably Madison having the computer lab on 21 wheels. 22 Q. Right. 23 A. That's a popular thing, and as we replace computer 24 labs, we're going to be looking at that rather 25 than replacing them with the standalones. 67 1 Q. When the proposal that you described a minute ago 2 by closing four and building two was removed by 3 the board-- Strike that. Let me start over. 4 I've got two questions intermixed here. When the 5 elementary proposals were moved from the project 6 that's currently under construction, why was the 7 $30 million bond sum not reduced in sum? My 8 understanding there's a current $30 million bond 9 program underway? 10 A. Right. 11 Q. And there had been as the original part of the 12 1028 an elementary component of that, which has 13 been removed but there's been no reduction in the 14 total amount of the bond? 15 A. We didn't do a 1028 with that in mind. There was 16 an original proposal, I think, maybe in March of 17 2001 or 200--I believe in March of 2001--that 18 called for the bonding that would--for bonding 19 totalling for $30 million which would include an 20 elementary school and a high school and using CPF 21 and doing a number of other projects. After that 22 point it became very evident to us that the state 23 was having significant problems and the money 24 coming to us was less sure than ever before. 25 Q. Not the $30,000,000? 68 1 A. No. I'm talking about money that the Odle--the 2 initial proposal would have had us using CPF and 3 probably general fund money to move those projects 4 forward, and, again, as that spring unfolded, the 5 state crisis became evident, and it did not make 6 sense to obligate our capital funds--capital 7 project funds to the project the way it was 8 structured. 9 Q. So did you reduce the $30 million? 10 A. No. What we did is we included the projects that 11 we had--they had under the initial proposal and 12 proposed to do piece meal by capital projects. We 13 just combined that into a high school project and 14 renovation at Lake View Middle School and the 15 technology addition here. 16 Q. So the answer is the $30 million didn't change? 17 A. The $30 million did not change. The total did not 18 change. 19 Q. Is Chuck Souder (phonetic) going into a 6th grade 20 teaching position at the same salary he received 21 as a principal? 22 A. Yes. In addition to his days in the classroom, he 23 will have additional days at teacher rate to 24 coordinate our elementary sports program rather 25 than assigning that to another principal. 69 1 Q. A lesser paid, younger less experienced teacher 2 could fill that position for less money; correct? 3 A. Potentially, although our studies show that that 4 savings is a loose area. It evaporates within a 5 very few--within six years. 6 Q. Is there any reason-- There may not be a reason 7 but is there any reason why the two highest paid 8 principals and the lowest paid principal are at 9 the one-section schools? 10 A. No. 11 Q. Is the principal of the Atwood school not being 12 offered a position? 13 A. She had initially told me she was retiring, and 14 I've asked her subsequently to put into writing 15 what her desires are for next year. She's still 16 not done that. 17 Q. Is she being forced to retire? 18 A. No. She's a half-time special education teacher 19 and half-time principal, and her overall salary 20 would be very close to what she would be as a 21 full-time teacher, and she's a very competent 22 teacher. In fact, she was nominated for teacher 23 of the year this year. 24 Q. What are your plans regarding bussing of the 25 Kindergarten students back to their communities if 70 1 the parents are not able to drive to the school to 2 pick them up in the middle of the work day? 3 A. We have never provided two-way bussing for 4 Kindergarten. We bus them to school in the 5 morning or from school in the afternoon, and 6 that's with our regular bus run. 7 Q. I understand that. Do you have any plans to 8 address the fact that some parents, now that their 9 kids are going to be much further away from them, 10 might not be able from a timing standpoint to pick 11 them up? 12 A. No. We know that it happens throughout the state 13 and people manage to take advantage of 14 Kindergarten. 15 Q. Do you think it will affect your enrollment 16 numbers? 17 A. I don't think so. 18 Q. Do you have any different plans to bus children 19 who were involved with after school sports if 20 they're not able to obtain rides? 21 A. We've actually talked about that over the years, 22 but at this point there's no plan. With the 166 23 square miles in the district, that's been a 24 question for many years. 25 Q. Can you tell me why of the students that are in 71 1 Atwood right now, which are approximately 146, 2 that 19 of them have been picked out to go to 3 Leesburg? 4 A. When you look at the map-- In fact, you would 5 have to strain to see it but it's over there. 6 Road 600 runs out within eyesight of Leasburg 7 school, so in order to move those students that 8 live on Road 600 and north to Madison, we would 9 actually have to drive them passed another school. 10 It didn't seem to make sense to do that. 11 Q. Did you attend a September 15, 2003, regular board 12 meetings of the beard of school trustees? 13 A. That sounds right. 14 Q. I'm sorry? 15 A. That sounds right. 16 BY MR. PRICE: 17 Q. I'm going to hand you the only copy I have of 18 those minutes, which means all three of us are 19 going to have to share. 20 MR. WHEELER: I believe the minutes are 21 attached-- If you're using the same board minutes 22 attached to the affidavit, it's Exhibit J. You 23 can check and make sure we're working off the same 24 copy that you are. 25 MR. PRICE: Yes, that's the same. If you 72 1 would go to page 8. 2 MR. WHEELER: That's page 6. 3 THE WITNESS: That's what you wanted, 6? 4 MR. PRICE: Page 8. 5 MR. WHEELER: That's interesting. The 6 copy we've got doesn't have our page 8 on it. 7 THE WITNESS: There's 9. 8 MR. WHEELER: Apparently we have to work 9 on your 8. Are you only using page 8? 10 MR. PRICE: Yes. 11 MR. WHEELER: Let's take a quick break. 12 (Short recess.) 13 (Plaintiff's Exhibit R was. 14 introduced into evidence.) 15 BY MR. PRICE: 16 Q. Dr. McGuire, we're back on the record. You've 17 been handed Exhibit R, which is a copy of page 8 18 of the board minutes of the regular meeting of the 19 board of school trustees for your school 20 corporation dated September 15, 2003. That, I 21 believe, also performs as part of Exhibit J in 22 your affidavit; is that accurate? 23 A. Yes. 24 Q. Now, this exhibit that you have in front of you 25 has an extraneous mark down next to a paragraph 73 1 that I want to ask you about. If you could read 2 that paragraph for the record, then I'll ask a 3 question. 4 A. "Dr. McGuire explained that the system could be 5 cannibalized for a short period of time, but the 6 point still remained that the three small schools 7 would have to be dealt with at some future date. 8 He expressed his understanding at Mr. Yeiter's 9 position and felt that people could reasonably 10 disagree." 11 Q. Doctor, I know the meaning of the word cannibal, 12 and I think I understand in some circumstances 13 even the word cannibalized, but I don't know what 14 it means when it comes to a school system so maybe 15 you can help me. 16 A. To put it in context the questions have revolved 17 around whether we could--instead of closing the 18 three schools if we could eliminate 19 extracurricular activities for children or we 20 could have eliminated special programs for some 21 children or whatever. I view that as 22 cannibalizing the system in order to keep those 23 schools open, and it would have simply been a 24 short-term fix because the three schools would 25 remain inefficient and would have continued to 74 1 drain our general fund. 2 Q. I know we all have different styles and different 3 verbiology. My understanding of cannibalize is 4 you would take from one part of an operating 5 system to make another part work and still the 6 plane flies. You aren't really saying, I don't 7 think, that to keep the ten schools to continue to 8 operate, you would have to take anything from the 9 seven remaining schools and put them in the three 10 schools, were you? 11 A. Yes, I was. 12 Q. Why did you mean that? 13 A. The suggestion that was made most frequently by 14 some of the opponents was that we eliminate 15 coaches and extracurricular activities, and we 16 feel that those are valuable services that we 17 provide the children, services that help link 18 children to school and keep them engaged so, yeah, 19 we're talking about reducing the services for all 20 kids so that we could keep those three schools 21 open. 22 Q. When you get to the point in the near future which 23 you've defined, which that means dealing with the 24 capacity enrollment issues, I think you've either 25 stated or implied that could mean at that point in 75 1 the three areas that we looked at--either in one, 2 two or three of those areas--new school 3 construction. Would it be accurate to say that 4 the cost of the construction of a new elementary 5 school-- Let me just ask you: What is 6 approximate cost for the construction of a new 7 three-section elementary school? 8 A. I don't know for sure on a three section. We've 9 costed four sections and that was at this point 10 $15 million. 11 Q. Per school? 12 A. Per school. 13 Q. If we did two, you're talking roughly $30 million? 14 A. That's correct. 15 Q. Doctor, I'm going to state to you a statement that 16 has been said frequently in the community and ask 17 your reaction. The statement is, "Are we really 18 going to spend $30,000,000 in order to save 19 $300,000 per year? How do you react to that 20 statement? 21 A. The way I've reacted to it in the past has been to 22 try to educate those that have asked that question 23 as to the different funds and to help them 24 understand that the debt service fund is not the 25 fund that we have a problem with. The fund that 76 1 we have the problem with is our general fund, the 2 fund that pays for salaries for teachers. We have 3 plenty of capacity in debt service to build more 4 efficient, cost effective buildings. That would 5 be-- Instead of it being a cost, I've tried to 6 explain it to them as more of an investment, so 7 you're investing $30 million so that you could 8 save an additional $300,000 a year or more. 9 Q. What does it cost you to invest $30 million? 10 A. It depends on the interest rate and that varies 11 daily so it's going to depend on, you know-- I 12 really couldn't tell what you it would cost at 13 this point. I know it's changed. 14 Q. Would it be accurate to say that originally there 15 was a plan to build two new three-section schools 16 and later close three one-section schools and put 17 a school in Prairie Township and then eventually 18 put a school in Winona Lake without any 19 explanation for any of this to the public? 20 A. I'm sorry. I don't follow your question. 21 Q. Has the school corporation, for lack of a better 22 phrase, flip flopped on proposals that have been 23 made to deal with school closings and buildings in 24 this community? 25 A. Well, have we responded to the public and changed 77 1 proposals to take into account new information and 2 the wishes of the public, I would say yes. I 3 don't characterize that as flip flopping. 4 Q. Was it initially voted by the board to build a 5 school in Prairie Township near Atwood and keep 6 Silver Lake open? 7 A. I believe it was. 8 Q. Then the very next year there was a vote to close 9 Silver Lake and not build one in Prairie Township 10 and build one in Winona Lake? 11 A. Yes. 12 Q. Now, the current plan is to close Silver Lake, 13 Atwood and Claypool? 14 A. Right. 15 Q. You don't see that as-- I don't think you like 16 the word flip flop, and I understand that. You 17 don't see that as a significant change in plans 18 over a fairly short period of time? 19 A. I didn't say that. I see that as a significant 20 change in responding to conditions. I also need 21 to point out there was a significant change in 22 conditions during that period. 23 Q. What was that change? 24 A. Well, there was a crisis where our state went 25 from, I believe, a $2 billion surplus to a $1 78 1 billion deficit. 2 Q. Except for the state changing its funding and 3 transportation, you're still getting your state 4 support, are you not? 5 A. Yes. 6 (Plaintiffs' Exhibit S was 7 introduced into evidence.) 8 BY MR. PRICE: 9 Q. I'm going to hand you what's been marked as 10 Exhibit S, as in Sam, and ask you to identify this 11 document for me. 12 A. I believe this is a community planning document 13 from '99; is that correct? 14 Q. My understanding is it's from 2001. 15 A. 2001. 16 Q. I can't prove that to you. 17 A. If it's-- 18 Q. It had to be because if you look in the middle of 19 page 2, it refers past tense to something that 20 happened in the summe