Judge Dismisses Johnson’s Lawsuit Against School Board

By: Alex Scofield
Published: 03/11/11

In a strongly worded decision released yesterday, Barnstable Superior Court Judge Raymond P. Veary Jr. dismissed Sandwich Public Schools Superintendent Mary Ellen Johnson’s lawsuit against the Sandwich School Committee.

Dr. Johnson sued the committee and four of its individual members—Sharron L. Marshall, Jessica A. Linehan, Marie A. Kangas and Nancy A. Crossman—for $300,000 plus damages in November, citing breach of contract and malicious interference with her duties as superintendent.

Judge Veary issued his decision on Wednesday, less than two weeks after a hearing at Barnstable Superior Court on Dr. Johnson’s suit and the defendants’ motion to dismiss it. While allowing that the school committee members’ alleged hostility to Dr. Johnson was perhaps troublesome, Judge Veary ruled that they were behaving within their bounds as duly elected public officials. Judge Veary concluded his nine-page ruling with a five-word sentence: “Democracy is not a tort.”

“It’s bleak, obviously,” said Dr. Johnson’s attorney, Paul L. Nevins, when asked yesterday if the decision means the end of the line for Dr. Johnson at the helm of the Sandwich school system.

Barring an appeal, Judge Veary’s decision effectively pushes Dr. Johnson into lame duck status, with her contract expiring at the end of this school year and a search underway for her successor. Dr. Johnson has the right to appeal the decision to a three-judge panel, Mr. Nevins said, and he planned to meet Dr. Johnson today to discuss her options.

“Her career as a superintendent, that she’s worked her whole life for, is effectively destroyed,” Mr. Nevins continued.

John J. Davis, the defendants’ attorney, praised Judge Veary’s decision, calling it careful and thoughtful.
“He didn’t rush it… It’s clear that he wanted to get it right,” Mr. Davis said. “He went through each and every argument raised by Dr. Johnson, and explained why she cannot recover here.”

In her lawsuit, Dr. Johnson asked the court to enforce a contract she signed, extending her tenure as superintendent through the 2012-13 school year, following a 4-2 approval of the contract extension by the school committee on April 30, 2010. However, the Cape and Islands District Attorney’s Office opined in the following month that the April 30 meeting—which was a continuation of a meeting that had begun two nights earlier—was improperly posted under open meeting law.

On June 16, the school committee reposted the meeting, and voted again on whether to extend Dr. Johnson’s contract. By this time, two newly elected members, Ms. Kangas and Ms. Crossman, were on board, and the committee voted 4-3 not to extend Dr. Johnson’s contract.

The validity of Dr. Johnson’s contract has been in dispute ever since, and the atmosphere at committee meetings this year has been thick with acrimony between the four defendant committee members, and Dr. Johnson and the committee members who supported her.

In the lawsuit, Mr. Nevins argued that the four defendant committee members had been “visibly hostile and condescending to” Dr. Johnson and interfered with her ability to carry out her duties as superintendent.
Such is the nature of democracy, Judge Veary ruled.

“We may wish our elected officials to be civil in their discourse, but they have a right—and perhaps a duty—to express their likes and dislikes,” Judge Veary said in his decision.

The committee members named in the suit were lawfully elected, said Judge Veary, and, by a lawful vote in June, they chose not to extend Dr. Johnson’s contract.

What was not lawful, Judge Veary ruled, was the April 30 school committee meeting at which Dr. Johnson’s contract was extended. Mr. Nevins had argued that any technical violation of open meeting law, which requires a governmental body to file notice of a meeting through the town clerk at least 48 hours in advance, was de minimus, or too inconsequential to consider. Citing an April 30 newspaper article publishing the date and time of the meeting, and notices posted in Sandwich High School, Mr. Nevins argued there was adequate public notice of the meeting.

Judge Veary disagreed. Dr. Johnson’s contract was extended in what amounted to a “secret meeting,” Judge Veary ruled, because the committee not only gave insufficient advance notice, but also held the meeting in a different location from the one in which the school committee ordinarily convenes—a downstairs conference room in Sandwich High School instead of the SHS library.

“[A] meeting of a governmental body which has not been noticed at the site explicitly and specifically required by the open meeting law is fatally flawed. A meeting which is noticed at a location left to the whim of the members of a governmental body is tantamount to a ‘secret meeting,’ and, as such, it is precisely what the statute seeks to eliminate,” Judge Veary said in the ruling.

Judge Veary said that the June 16 meeting, in which the committee voted not to recognize Dr. Johnson’s contract extension, was thus a “cure” for the “deficient” meeting of April 30. There was no dispute about the propriety of the June 16 meeting or its posting.

Regarding Dr. Johnson’s allegations in her suit that Ms. Marshall, Ms. Linehan, Ms. Kangas and Ms. Crossman maliciously interfered with her duties as superintendent, Judge Veary said the complaint failed to prove actual malice. “They are few and vague,” Judge Veary said about Dr. Johnson’s allegations of malice.

“Left to guesswork is whether the defendants’ exhibitions were without any basis in a legitimate municipal purpose,” Judge Veary continued. Whether the defendants were hostile and condescending to Dr. Johnson, Judge Veary ruled, was too subjective to be actionable in a lawsuit, and they were performing their duty as elected officials.

“He absolutely overstepped himself,” Mr. Nevins said about Judge Veary and his decision, citing the ruling as an example of “judicial activism.” Mr. Nevins took particular issue with Judge Veary’s comments on the nature of democracy in the decision.

“I say one central element of democracy [is] jurors resolving issues of fact,” Mr. Nevins added.

Ms. Marshall did not return a call from the Enterprise seeking comment yesterday, but earlier in the week she said that the superintendent search committee has begun conducting preliminary candidate interviews. Ms. Marshall would not say how many people applied for the position, only that the search committee still planned to adhere to its originally established timetable, which calls for the screening committee to nominate finalists at the end of this week, and finalist interviews during the week of March 21. The committee is scheduled to vote to appoint a new superintendent on March 30.

“We’re very pleased with the outcome, and at this point the school committee is looking forward, not backward,” Mr. Davis said.

Mr. Nevins said that the evidence shows Dr. Johnson enriched the Sandwich school system in less than three years as superintendent. He questioned how Sandwich will move forward from this point.

“The town has been shortchanged in so many ways,” Mr. Nevins said. “Local politics are not going to serve the children of Sandwich.”

In arguing against the legal merits of Dr. Johnson’s lawsuit, Mr. Davis said he tried to avoid the politics surrounding Dr. Johnson’s relationship with the school committee. He said he had heard she had made positive decisions as a superintendent. “I appreciate the fact that she has supporters,” Mr. Davis said.

However, he alluded to Judge Veary’s statement that democracy is not a tort. Voters had their reasons for electing Ms. Marshall, Ms. Linehan, Ms. Kangas and Ms. Crossman.

“I guess [Sandwich voters] got what they voted for,” Mr. Davis said. “The majority of the school committee decided that they had to move in a different direction.”