The Douglas County School Board has retained a second law firm in its defense against a lawsuit alleging the four board majority members violated open meetings laws.
The board’s debate about whether to bring on more counsel also broached the majority’s desire to appeal a judge’s order that prohibits serial meetings, as the four directors maintain they followed Colorado law to the letter.
The engagement letter for the Greenwood Village based firm Gessler Blue Law, run by Geoff Blue and Scott Gessler, says its fees are normally $425 an hour but that it will charge DCSD $225 an hour for attorneys’ time and $150 to $175 for paralegal work.
Blue is a former deputy attorney general for Colorado and Gessler is a former Colorado secretary of state. The board also retains Hall and Evans, which had represented board directors in the lawsuit to date.
Douglas County resident Robert Marshall sued the board on Feb. 4 alleging directors Mike Peterson, Becky Myers, Christy Williams and Kaylee Winegar used a chain of private, one-on-one meetings to evade quorum requirements and plan the former superintendent’s removal.
A judge has issued a preliminary injunction in the case prohibiting the use of serial meetings or violations of Colorado open meeting law.
President Peterson said he brought the idea of retaining Gessler Blue Law before the board on March 22 so it could consider diversifying its legal representation moving forward. The resolution passed in a 4-3 vote does not require the board to use the firm but will place Gessler Blue Law on retainer for this specific lawsuit.
“My fear is if this case moves forward and we don’t have competent legal representation and variety and diverse opinions on what the impact could be,” Peterson said, “that this could create new Colorado law.”
Peterson also noted the judge pointed to cases in other states in his preliminary injunction. Colorado does not appear to have case law regarding the use of serial meetings, walking quorums or daisy-chain meetings, although several states have found they violate open meeting requirements.
Director Susan Meek said it’s impossible for a firm to represent the full board without a conflict of interest. What’s best for the majority directors might differ from what’s best for the district, she said.
The lawsuit names Peterson, Myers, Williams and Winegar individually in addition to the Douglas County School Board. Marshall sued after Meek, Ray and Hanson made public allegations that the majority broke open meeting laws by privately asking former Superintendent Corey Wise to step down.
Peterson had countered Meek, saying minority directors have a conflict of interest “to even vote on this, seeing as they were witnesses for the plaintiff,” also adding they provided evidence used by Marshall’s legal team.
Director Elizabeth Hanson fired back at Peterson for implying minority directors voluntarily acted as witnesses and informants for the plaintiff’s attorneys.
“President Peterson, that’s a gross misrepresentation of what happened, and I think you know that,” she said.
Hanson emphasized that Meek and Ray were subpoenaed to provide documents in the case and called as witnesses by the plaintiff’s attorneys, who could call anyone to testify.
“They don’t have an option whether or not to show up, and they don’t have an option whether or not to produce documents,” she said.
Ray said hiring an additional firm was premature before the judge decides on a permanent injunction or makes a final decision in the case. Ray and Meek also argued that the firm was a lightning rod because of its political ties.
“The optics are horrible,” Ray said.
Meek said in 2013 Gessler campaigned for past DCSD board directors known as the reform board. The community would likely see that as connecting the current board with the controversial reform era, she said.
Meek also called hiring additional counsel for an appeal a frivolous use of district funds.
“If you feel like it’s appropriate for daisy-chain conversations to happen outside of public meetings, work with your legislators and try to get that passed. Those are steps you can take to work on clarifying the open meeting law. Try to make changes that you can make, but do it on your dime not on the taxpayer dime,” Meek said.
Peterson chastised Meek for her comments about the reformer era and said he was only concerned with finding competent legal counsel, not with political narratives in the community.
“Mentioning a narrative that could affect this is, in some cases, a creation of that narrative or reinforcing a narrative,” Peterson said.
Ray said the firm was also controversial because Gessler representats Tina Peters in Mesa County — the clerk and recorder who was arrested on allegations of facilitating a breach of the county’s election equipment.
The comment regarding Peters drew ire from Myers, who said Ray was politicizing the debate by bringing up Peters’ case. She criticized Ray for “alleging (Peters) is already guilty,” but then appeared to imply Peters is innocent.
“She was just doing her job,” Myers said.
Director Winegar, who gave birth to her baby that morning and participated in the meeting remotely from her hospital bed, said she was interested in in finding new legal representation.
Winegar said Hall and Evans “didn’t do the best representation of us,” as evidenced by judge’s preliminary injunction in the plaintiff’s favor. She wanted to try a new firm as the board challenges the order, she said, adding “we have every right to appeal that.”
“The person who we should be looking at that’s wasting district money is the plaintiff. They are the ones who brought this case against us,” she said. “We know we did nothing wrong. Unfortunately, we disagree with how the judge interpreted the law.”