Sandwich School Board Faces Another Lawsuit

Another lawsuit filed against the Sandwich School Committee can be added to the already mounting pile of suits leveled over the past year.

Former school board members S. Aleta Barton and Robert E. Guerin, along with resident Richard W. Augustine of Manor Drive, filed a complaint in Superior Court on May 20 alleging that the school board violated the state’s Open Meeting Law by holding a closed door meeting on Tuesday, May 3, 2011, to discuss an investigative report that concluded that Superintendent of Schools Mary Ellen Johnson had violated the school department’s sexual harassment, bullying, and hazing policy.

In the complaint, the plaintiffs allege that the school board violated state laws by not granting Dr. Johnson’s request for a public meeting to discuss the matter.

The plaintiffs also allege that the meeting violated state laws when the board made a decision to level disciplinary action against Dr. Johnson—namely banning her from the school building except for the hours between 4 PM and 7 PM.

The claim asks that any work conducted at the meeting be null and void and that the governmental body be sanctioned for its violation.

Mr. Augustine said he would, at the very least, like to see the directive issued on May 3 banning the superintendent from the schools be overturned and “wiped off the books.” He said if the committee members are issued a fine for violating the laws, that would be okay, too.

According to the school board’s attorney, Joseph A. Emerson Jr., this suit is against the school committee body that is currently in place and will not impact members who are no longer on the board.

In a telephone interview this week, Mr. Guerin would only say that the complaint was filed to determine whether the executive session was a violation of open meeting law. When pressed as to how that posted meeting may have violated the law, Mr. Guerin said, “I’m not having this discussion with you,” and hung up.

Mr. Augustine said the meeting was a violation because it was held in a closed door session, despite Dr. Johnson’s request that it be held in public.

“The superintendent asked for a public meeting with respect to the alleged misconduct. She is entitled to that, and they denied her that right,” Mr. Augustine said.

According to a timeline of events presented by Mr. Emerson, the May 3 meeting was the board’s third attempt to schedule a meeting with Dr. Johnson and her attorney, Paul Nevins, to discuss the investigative report, which was issued on April 5. The report, which was issued by attorney Laurence J. Donoghue, who was hired by the town to investigate a harassment claim leveled against the superintendent by her administrative assistant Joan D. Caulkins, concluded that Dr. Johnson violated the policies she is charged to uphold and recommended that significant disciplinary action be taken.

On April 21, Mr. Nevins notified Mr. Emerson that he would be out of the state until May 2 and asked that the meeting be scheduled after that date and held in open session. On April 26, Mr. Emerson notified Mr. Nevins that the meeting was going to be held on May 3, in open session as requested, and would proceed whether Dr. Johnson attended or not.

According to the timeline, on April 27 Mr. Nevins notified Mr. Emerson that Dr. Johnson “prefers that this matter be resolved confidentially and amicably.” On April 29, the board granted the request and posted an executive session meeting for May 3.

But, approximately three hours prior to the scheduled closed door meeting, Mr. Nevins notified Mr. Emerson that Dr. Johnson would not be attending the meeting due to illness and that he would not be attending either. At that time, he requested that the matter be held in open session. The school board, however, moved forward with its already posted closed door meeting. Committee members Barbara A. Susko, Andrea M. Killion, and Shaun P. Cahill did not attend the meeting. That left then-committee Chairman Sharron L. Marshall and board members Jessica A. Linehan, Marie A. Kangas and Nancy A. Crossman in attendance.

Mr. Augustine takes issue with the board’s decision to move forward with the closed door meeting and not to grant Dr. Johnson’s last-minute request for a public meeting on the issue.

“They could have scheduled a public meeting and said we are holding it, whether you are there or not,” Mr. Augustine said.

Mr. Augustine admitted that he does not know exactly what occurred in the private meeting, but said, given that Dr. Johnson was told to work remotely from her home and her banishment from the school buildings during the day, that “they had to have a discussion about the alleged misconduct.”

The civil action complaint was written and filed by Mr. Nevins, who is representing the three residents in this case and the complaint contains specific statements about what occurred in the meeting.

“The four school committee members present allowed the counsel for the school committee to make a presentation to the members as to the status of the matter, along with a purportedly independent attorney who had been hired by the school committee’s counsel to investigate the complaint.”

According to a statement issued by Mr. Emerson, “there was no discussion about the investigative report during the May 3 meeting.”

The complaint also alleges that disciplinary action was taken against the superintendent and that the action interfered with and prevented her abilities to perform her duties due to the order barring her from entering the school buildings during the day.

According to Mr. Emerson, the order is a directive and not a disciplinary action. He explained that a disciplinary action would involve some “adverse employee action taken, such as a suspension or reprimand.”

“The individual must be impacted adversely,” he said.

He explained that a directive “simply tells an employee to do something or how to do something.” He said it has no impact on the employee’s personnel record.

Still, Mr. Augustine took exception with the directive given by the school board.

“They should have set up arrangements for her to work elsewhere,” Mr. Augustine said.

This is just one of several suits that have been leveled against the school committee over the past two years. Earlier this year, former assistant superintendent Maxine Minkoff won a $160,000 settlement in a wrongful termination suit. Ms. Minkoff had signed a three-year contract with the school district in 2009 but, just six months later, was terminated because of a lack of funds. The contract contained no clauses for terminating her employment because of funding issues.

Last year, Dr. Johnson filed a suit against four individual school committee members who voted not to extend her contract. This suit stemmed from an April 30, 2010, meeting in which the school board voted 4 to 2 to extend Dr. Johnson’s contract through 2013. However, a complaint was filed with the Cape & Islands District Attorney’s office alleging that this meeting violated Open Meeting Laws, since it was not posted 48 hours in advance. The district attorney’s office advised the school board that all business conducted at the improperly posted meeting should be considered null and void and that any votes be retaken. But when a vote was retaken, it was after the May election when power on the board had shifted and, by a vote of 4 to 3, the committee voted not to extend Dr. Johnson’s contract beyond June 30 of this year.

Dr. Johnson filed suit, claiming that the April 30 meeting was properly posted and that her contract was intact. However, in March, Barnstable Superior Court Judge Raymond P. Veary Jr. issued a strongly worded decision dismissing the lawsuit. The superintendent asked that the judge reconsider his decision, but he declined. She is now appealing that decision.

While the fees for the school board’s legal representation are coming out of the school department’s budget, none of the three residents bringing this suit forward are footing the cost for Mr. Nevins’s legal representation.

“He said he would be willing to draw up the papers for us. He did it pro bono,” Mr. Augustine said.
He said he decided to file this suit against the school committee after an individual approached him and asked him to do so. He declined to name the individual who asked him to file the suit.

While Mr. Augustine admitted that the suit is costing the school department money in terms of legal fees, he said, “it’s worth the money.”

“I agreed to be a part of this because it is important for people to know when there is misconduct among elected officials. I think they [the school committee members] had an agenda that is not in the best interest of the students. The townspeople need to have an answer. Yes, we are spending money on legal fees. It’s unfortunate that it takes away from services in the school department, but the public has a right to know what is happening. I want people to know their elected employees behaved in an improper manner,” he said.

Even if it is decided that the May 3 meeting was not in violation of open meeting law and that the school board did not act improperly, Mr. Augustine makes no apologies for filing this suit.

“I don’t think it is a waste of taxpayers’ money,” he said.

A hearing on this matter is scheduled to be held in Barnstable Superior Court today at noon.



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