The Douglas County School Board is awaiting a judge’s written order that will decide whether to temporarily ban directors from using what’s often called “serial meetings” or “daisy chain” meetings.
Douglas County resident Robert Marshall filed a lawsuit against the board and its majority members on Feb. 4, alleging directors Mike Peterson, Becky Myers, Christy Williams and Kaylee Winegar used serial meetings to evade quorum rules so they could privately discuss removing former Superintendent Corey Wise.
The board majority terminated Wise without cause in a publicly noticed special meeting on Feb. 4. Marshall filed suit after a board minority of David Ray, Susan Meek and Elizabeth Hanson publicly alleged on Jan. 31 the majority broke open meeting law by holding backdoor meetings about removing Wise.
As part of the lawsuit, Marshall is seeking an injunction to prohibit serial meetings moving forward and asking a judge to find the practice a violation of open meeting law.
District court Judge Jeffrey Holmes said at the close of a Feb. 25 preliminary injunction hearing he needed time to assess evidence in the case before issuing his order. That included recorded phone calls among board directors, and similar cases cited in attorneys’ arguments. It is unclear when the order will be issued.
Steve Zansberg, a well-known open-government attorney who joined Marshall’s legal team, said during the hearing that a central issue in the case is that four directors discussed a crucial matter of public business — replacing a superintendent — out of the public’s eye.
“The public is completely in the dark,” he said.
Colorado open meeting law says three members of a local public body, or a quorum if that is fewer, gathering to discuss public business constitutes a public meeting.
Worsening the incident is that there are no public records of those conversations, Zansberg said.
Peterson, Myers and Williams testified on Feb. 25 that the majority directors held one-on-one conversations in the weeks before Wise was fired and individually came to the conclusion DCSD needed new leadership. Directors independently conveyed those views to Peterson and Williams.
Testimony revealed the majority spoke about their concerns exclusively through phone conversations. During their training as new board members, they felt DCSD legal counsel had warned them that discussing district busines in writing would be subject to record requests.
Peterson said he has begun relying more on email communication since this dispute unfolded.
Peterson, the board president, and Williams, the board vice president, met with Wise on Jan. 28 to inform him of the majority’s position. They wanted to give Wise the opportunity of leaving on his own terms, they have said.
Meek also testified on Feb. 25 about her call with Peterson on Jan. 28, in which he informed her afterwards that he and Williams met with Wise.
During the Feb. 25 hearing, Peterson, Myers and Williams testified that Wise was not ordered to resign, and that they merely informed him a board majority wanted to go in a new direction with leadership. Wise, Peterson and Williams walked through all options to end his contract in their Jan. 28 meeting, according to directors’ testimony.
That included retirement, termination with cause and termination without cause. The directors also asked the superintendent to consider resignation as one of his options.
The majority has adamantly maintained they did not violate any open meeting laws. They testified that they only spoke in one-on-one conversations and did not take formal action in the Jan. 28 meeting with Wise.
Defense attorneys said the majority directors were abiding by the board’s well-established practice of having “two-on-one” meetings, where two directors meet with the superintendent.
During testimony, Peterson listed numerous examples from district calendars of one-on-one meetings and two-on-one meetings between the DCSD superintendent and directors, including under the previous board.
Hanson told Colorado Community Media the district’s practice of two-on-one or one-on-one meetings was never used to make formal decisions or violate open meeting laws, only to have discussion.
“I wish the attorneys who represent the entire board had taken the time to speak with the entire board before making arguments about our past practices,” she said.
The defense, which has filed a motion to dismiss the case, also stated Marshall should be challenging the issue of serial meetings through the state legislature, not court. State law affords local public officials more flexibility to discuss issues two at a time, defense attorney Matthew Hegarty of the firm Hall and Evans, LLC said.
Despite telling minority directors on Jan. 28 that the majority had decided to replace Wise, the three newly-elected directors testified that they had not made a firm decision and could have changed their minds after the Jan. 28 meeting with Wise.
“That was under oath,” Hegarty said.
The defense argued issuing a preliminary injunction would interfere with the board’s ability to do routine business because it would make any private mention of district business among directors a violation of law, and that it would bar one-on-one conversations.
Zansberg said the defense didn’t closely read the motion for a preliminary injunction.
The request specifically asks the judge to prohibit three or more directors from violating open meeting laws, including through the use of serial meetings. They did not ask to halt one-on-one conversations about district business, which is legal, Zansberg said.
Zansberg said Peterson’s testimony showing he shared the views of two other directors with Williams and then planned the Jan. 28 meeting with Wise is evidence of illegal serial meetings.
“That’s a confession right there,” Zansberg said.
The majority could have chosen to discuss the personnel matter in a properly noticed executive session, but evidence showed their goal was to avoid a public meeting, he said.
Whether directors intentionally or knowingly violated the law isn’t relative to issuing an injunction either, Zansberg said, arguing that well-intended officials can violate open meetings law. In some cases, they did so after receiving erroneous legal advice, he said.
“Lawyer’s make mistakes,” he said.