The Resolutions That Weren’t

Estimated Read Time: 8 minutes

The special board meeting on March 11, to discuss two resolutions, was a little confusing and filled with legalese about the lawsuit against the four majority Board of Education directors as well as the entire board.

We thought a blog post would be an appropriate spot to unpack all we learned from this 90-minute meeting.

First, let’s provide some context to the meeting.

As we already know, District Court Judge Jeffrey K. Holmes issued a written statement for the preliminary injunction against the four majority BoE members Mike Peterson, Christy Williams, Kaylee Winegar and Becky Myers for violating Colorado Open Meeting Laws. In short, Judge Holmes ordered the DCSD BoE to follow Colorado Open Meetings Law, which seems like a standard expectation of elected officials.

The morning of March 10, a Special Meeting was posted on the district website, scheduled for Friday, March 11, at 10 a.m. The agenda listed the one item to be discussed: “Resolution of Delegation by the Board of Education to the President Regarding the Matter of Robert Marshall v. Douglas County Board Of Education et al.” A copy of this resolution was provided soon after the agenda was released. 

Notably, if passed, the proposed resolution would “appoint” President Peterson as the “sole delegate” from the Board, to whom the Board delegates the responsibility, for the Board as a whole, to approve strategic recommendations in the context of the Litigation and for its complete duration, including resolution of appellate proceedings” and the “sole point of contact in connection with needing to approve strategic recommendations in the context of the litigation, and the Board further authorizes its present counsel of record in the Litigation to be the sole arbiter of which decisions in the context of the Litigation require such approval.”

In layman’s terms, the resolution would appear to give President Peterson ALL of the power in making decisions about litigation in reference to both the pending lawsuit and any additional litigation related to the lawsuit. This is problematic, considering that this is a board of seven elected members of the community and putting all the decision-making power under one individual contradicts the recent judge’s order that recognizes this is a board of seven, all of whom carry equal weight in any decisions made. And even more troubling, President Peterson has a conflict of interest, as one of the named co-defendants in the lawsuit. Putting him in that position effectively cuts out the three minority board members (also included in the suit as part of the BoE) from any decision-making on their own behalf.

In the early evening of March 10, a second resolution was released that, if passed, would order the Board attorneys to “request and pursue an interlocutory appeal in the Litigation.”

Again, in layman’s terms, this additional resolution would request the attorneys to file an appeal to the judge’s ruling in the injunction issued on March 9. As a reminder, the judge ordered the Board of Education to follow open meetings laws, so this resolution was asking for an appeal to be filed to NOT follow Colorado Open Meetings Laws.

While there are many notable pieces from this meeting, we are highlighting a few that amplify the current costs to this district both to the money that can be used for our students, as well as teacher and staff development, and to our integrity.

It was clear that there was confusion from some of our majority board directors named in the lawsuit that they did not understand the injunction. From discussion on the dias, it appeared that there was clarification about the injunction in the form of an email. Neither DCSD General Counsel Mary Klimesh nor attorney Mathew Hegerty from Hall and Evans, the law firm representing the DCSD BoE, would comment on any privileged communication in the public forum. Some board members did request an executive session to discuss the matter, which was denied by the board minority. Director Hanson stated “there is nothing counsel can tell me that will change my mind on this subject.” President Peterson even said later in the meeting, “clarification has been provided.” 

The new board majority is still learning that board business must take place in the public. Because the second resolution was added on the evening of March 10, well after the 24-hour notice required, and its content was different from the original resolution, it was not allowed to be considered. However, President Peterson made a blatant attempt (by his own admission too, after Director Hanson called him out) to insert the language from the second resolution into the first resolution. 

Director Peterson continues to make BoE decisions without the consent of the BoE.

President Peterson went directly to the attorney asking for legal advice and a resolution to present to the BoE regarding the COML litigation. This act was in violation of BoE policy. President Peterson has continued to act on the BoE’s behalf without their approval. Remember, Director Ray has already filed a complaint to Director Williams on past violations and Director Williams replied that she had spoken with President Peterson and he apologized and would refrain from acting outside his purview in the future. Yet, here we are again.

The district’s insurance company refused coverage for the lawsuit. At the beginning of the meeting, Director Meek noted that the cost of the lawsuit will not be covered by the district’s insurance company. This means that legal costs for any appeal to the injunction or the lawsuit will need to be paid by the school district. Even with this financial burden to the District, the board majority still wanted to proceed with an appeal.

Hall and Evans may be breaching ethical standards. Director Meek cited a clear conflict of interest with Hall and Evans representing the entire BoE as well as the four named directors. She said that Hall and Evans did not work with her on preparing her testimony for the original February 25 hearing, nor did they seek to understand the practices of the prior board, pointing out the inconsistency with Hall and Evans providing counsel to President Peterson regarding the draft resolutions. Director Meek stated that she thought new legal counsel may be needed.

Director Hanson also pointed out that information from Hegerty had not been shared with the entire board, and specifically directed Hegerty to provide copies of all communications he had with individual board members as well as an invoice of fees to date to be provided by the end of the business day.

President Peterson called the meeting, then later claimed he didn’t support the resolution that he called the meeting to address. Special Board Meetings may be called when the majority of the Directors or the Board President calls one. In this case, President Peterson called the meeting to address a resolution that designated him as the sole delegate from the BoE going forward as the point-of-contact and the owner of all decision-making around the lawsuit. Curiously, during the meeting, President Peterson claimed that he did not support the first resolution as written and that was why he wrote the second resolution. He said he wanted to heavily amend the first resolution to basically make it reflect the second resolution, which is exactly what he did later in the meeting before Director Hanson called him out on his “slick” maneuver.

Most importantly, this meeting was a complete waste of District resources. You’ve heard the expression, “this could have been an email?” Well, it appears that today’s meeting wasn’t necessary at all, and the resolutions could have been addressed at the regularly scheduled meeting on March 22, with public comment. Near the 30-minute mark of the meeting, Director Ray pointed out to the entire board that they had until mid-May to file an appeal to the injunction, but Hegerty said that an appeal needed to be filed within 14 days, and that waiting until filing after the board meeting on March 22, would make it “impossible.” Later in the meeting, Hegerty realized that the board did indeed have 49 days to file an appeal, confirming Director Ray’s comment.

In light of that realization, which President Peterson referred to as a “new revelation,” the motion to vote on the resolution was withdrawn and the meeting was adjourned, an hour and a half after it started.

We are left wondering:

• Why was the meeting called by President Peterson if, as he claimed later in the meeting, he was uncomfortable being named the sole delegate for all strategic recommendations and did not even support the resolution?

• What was the cost of that special meeting to our District? In addition to staff costs, there were additional costs of the attorney and likely paralegals assisting on the call.

• What would the cost of an appeal be to our District now that we know additional litigation will not be covered by insurance?

• And what is the cost to the integrity of our school district when four board members publicly insist they “did nothing wrong,” despite a District Court judge ruling that their actions met the criteria to issue a preliminary injunction?

• Director Meek suggested a COML training for the BoE to ensure they all understood when and how they can talk off the dias. Will the BoE majority be willing to educate themselves or will they continue to make legal mistakes due to ignorance and arrogance?