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Douglas County school board reaches no decision on injunction appeal in special meeting

Attorney says after hour-plus that appeal timeline longer than originally thought
douglas county school board march 11
Posted at 3:23 PM, Mar 11, 2022

DENVER – The Douglas County school board came to no decision after a 1 ½ hour special meeting Friday regarding a potential appeal of a judge’s ruling on an open meetings violation lawsuit amid confusion on what the ruling means and how long the appeals window might be open.

The meeting did little to dispel any notion that the “Kids First” board majority and the three other board members have come to any sort of mending of relations regarding how to conduct themselves as a seven-member board, as the disagreements and confusion started from the outset.

On Wednesday, Douglas County District Court Judge Jeffrey K. Holmes granted a preliminary injunction against the board and the four named defendants — board directors President Mike Peterson, Vice President Christy Williams, Becky Myers, and Kaylee Winegar — that requires them to follow the Colorado Open Meetings Law, and not to talk about public business or take any formal actions by three or more board members as a group or through a series of meetings unless those meetings are open to the public.

The lawsuit against the board members was filed by Robert Marshall, a Douglas County resident, after the board majority discussed firing then-Superintendent Corey Wise several days before they formally fired him in a 4-3 vote at a meeting on Feb. 4 and without hearing public comment.

“Circumventing the statute by a series of private one-on-one meetings at which public business is discussed and/or decisions reached is a violation of the purpose of the statute, not just its spirit,” Judge Holmes wrote in his ruling, adding that the evidence indicated the four named board members “collectively committed, outside of public meetings, to the termination of Wise’s employment.”

Confusion abounds at Friday’s meeting

Board President Mike Peterson had called the special meeting on Thursday and posted a resolution — which he said was written by attorneys at Hall & Evans, the law firm representing the school board and the individually named majority board members in the open meetings violation lawsuit — that would have made Peterson the “sole delegate … to approve strategic recommendations in the context of the litigation” and to be the sole point of contact to approve recommendations in moving forward with litigation.

But as of the start of Friday’s meeting, there was a second attachment to the agenda item that sought to direct the counsel at Hall & Evans to “request and pursue an interlocutory appeal” in the case on behalf of both the board and the named defendants.

Peterson said he had written the measure and added it to the resolution as an alternative to the original version. Also included on the agenda item was a 30-minute discussion time limit.

The board minority – directors Elizabeth Hanson, Susan Meek and David Ray – tried to get the 30-minute time limit lifted, but that motion failed. They then asked the district’s general counsel, Mary Kay Klimesh, whether the second measure was properly noticed and permissible for discussion and votes on Friday.

Proceeding to be able to vote on the second measure would have required a unanimous vote by the board, and that vote failed. There were multiple discussions as to whether the board needed to go into executive session to discuss how to proceed with the second measure and whether the original measure could be amended to match the language of the second.

Hanson and Ray said they believed the board, as a whole, was setting what Ray called a “terrible precedent” by consistently calling last-minute special meetings with no public comment while trying to pass new measures.

Meek also noted that the district’s insurance carrier had denied coverage for the lawsuit, and the minority board members lamented that the cost of fighting the lawsuit further could dip into the budget for students.

Peterson said he felt it was “perfectly appropriate” to call a special meeting Friday after Judge Holmes’ ruling earlier this week. He said he believed the original resolution under consideration was “heavy handed” and said he did not feel comfortable approving himself as the conduit for the board during litigation, which he said was why he added the second resolution to the agenda.

Some of the minority board members took issue with the Hall & Evans attorneys communicating with Peterson about the resolutions but not the full board, which is also a defendant in the lawsuit. Meek said the firm had a “clear conflict” in representing both the board as a whole and the four majority board members as named defendants, as the goals of those four are not in line with the board’s minority members.

“We can’t, by law, delegate responsibility to a single individual,” Hanson said. “It goes against every principle of a seven-member acting board.”

Myers said she was not aware that the district’s insurance was no longer covering the litigation, but counsel reminded her that information was shared in privileged communications and could not be discussed in the open meeting.

Ray motioned to table the entire agenda, calling it “ridiculous” that the board was considering a resolution he said was “not presented in the proper format.” Winegar moved to go to executive session, but that motion failed to get the two-thirds majority vote needed.

Peterson works to amend original resolution

After that, Meek suggested simply bringing up what Peterson intended to be the second resolution in a regular board meeting scheduled for March 22, which would include public comment on the matter.

“I don’t understand why we’re trying to rush something forward when we’ve had a judge order an injunction on the board from engaging in actions unless they are public,” Meek said. “I have to question whether this board is asking to be held in contempt of court and what additional cost this has to this district and the students we serve.”

Peterson said the goal was “to seek clarification from a higher court” on the judge’s ruling.

He asked Hall & Evans attorney Matthew Hegarty to explain what potential time would be needed to prepare an interlocutory appeal on the preliminary injunction while the rest of the case was pending.

Hegarty responded that interlocutory appeals need to be filed within 14 days of the judge’s initial ruling, which would be March 23. He said if the board did not meet to decide whether to move forward with the appeal until March 22, it would be “essentially impossible” to meet the appeal filing deadline.

Hanson told Hegarty that since she is a board member and thus a defendant in the case, she felt it was “unbelievably inappropriate” that she had not received any communications about deadlines regarding an appeal from the attorneys.

The board then had to vote to extend the meeting, as the 30-minute timeline was expiring. The motion passed on a 4-3 vote, with Hanson, Meek and Ray voting not to extend the meeting, which Ray had already motioned to adjourn. The board voted on the motion to adjourn next, which failed.

Next, Peterson tried to amend the first resolution to be mostly identical to the second resolution he had added to the agenda, which was found not to have been properly noticed. He proposed striking the third “whereas” paragraph as well as the first two “be it resolved” statements in the resolution, amending the title, an amending another paragraph so it would be the full board directing counsel to pursue an interlocutory appeal.

Hanson called the move “slick,” saying that Peterson was simply editing the resolution that was properly noticed to become the resolution that had not been properly noticed. Peterson acknowledged that was exactly what he was doing. Hanson said spending more taxpayer money to appeal the ruling was “absurd,” especially without further public comment on the matter.

Peterson said the board should be interested in getting further clarification on “what this ruling actually means” from the judge and how it might affect the rest of the case moving forward.

Ray said he understands the ruling said the board “needs to stop doing things illegally” and put a motion on the table to accept the judge’s ruling and settle the lawsuit, and Peterson took issue with his characterization of the ruling. Peterson said he felt the ruling “simply restates” Colorado statute.

Myers said she was confused about the ruling and whether it meant board members would no longer be able to talk to one another outside of meetings. Peterson told her the communication on the interpretation of the ruling had already been sent to all the board members in a privileged email. He explained to her that the interlocutory appeal would only be an appeal of the temporary injunction and would have no effect on the rest of the case, which Peterson said he expected to continue late into this year or early next year.

Peterson told the rest of the board he had called the Hall & Evans attorneys after receiving the draft first resolution to discuss a potential filing timeline.

At that point, Hanson asked Hegarty to send the board every piece of communications the firm had with individual board members and a copy of the invoice for the firm to date with respect to the litigation at hand.

A new appeals timeline appears

After the board defeated the motion from Ray to accept the court’s ruling and settle the case, Hanson again mentioned she understood why the four majority board members would want to appeal, but that it should be on their dime and not the district’s.

“I want an attorney who will advise the board in what is the board’s best interest. I haven’t heard how this is moving forward and putting kids first,” she said. “How is taking dollars from kids doing what is best for the school board and district?”

There was some discussion with Klimesh, the general counsel, about whether Peterson’s proposed amending of the original resolution to match the rejected second motion would violate open meetings law. Klimesh said that would be up to the board to decide whether the language was “materially different” from the original version, and unanimous agreement would be needed.

Ray said he felt that the amended version would indeed be different than what was originally posted.

At this point, Hegarty, the counsel for Hall & Evans, chimed back into the discussion to say the law firm was, as a courtesy, not charging the board for the time it spent drafting the original resolution that Peterson was working to amend.

And shortly afterward, he told the board that he had found another appellate rule which said the ruling could be appealed through a different process, and that the deadline for that type of appeal would be 49 days out from the judge’s original ruling.

As such, he clarified, the board could indeed take the matter up at the March 22 meeting, and if it decides to still pursue an appeal, would leave the attorneys with enough time to prepare the appeal.

Once Hegarty told the board that information, Peterson quickly said he was happy to pull the original resolution and end Friday’s meeting, then take up the resolution he wanted to proceed with Friday at the March 22 meeting.

Winegar seconded that motion, and the board quickly voted unanimously to adjourn the meeting.

Ahead of Friday’s special meeting, Kevin DiPasquale, the president of the Douglas County Federation, released a statement chastising the board majority for calling the special meeting a day beforehand and on the last day of school before spring break, and called for the board to cancel the meeting and not proceed with the resolution to have Peterson act as the conduit for the board during the open meetings law litigation.