Judge Slaps Dougco School Board Members for Meetings That Led to Superintendent's Firing

Late on March 9, 18th Judicial District Judge Jeffrey K. Holmes granted a motion for a preliminary injunction against the Douglas County Board of Education and four of its members — the conservative bloc of Mike Peterson, Becky Myers, Kaylee Winegar and Christy Williams — for allegedly violating Colorado Open Meetings law while engineering the February 4 firing of superintendent Corey Wise.

The ruling doesn't halt the process of replacing Wise; the two finalists are rumored frontrunner Erin Kane, a former Douglas County School District interim superintendent to whom board president Peterson reached out even before the position was officially open, and Danny Winsor, a longtime Dougco schools administrator. But it does chastise Peterson and company for the way they went about disappearing Wise, who's hired two local law firms currently exploring the possibility of filing a wrongful-termination lawsuit against the district.

The motion for preliminary injunction and a related suit were pressed by Douglas County resident Robert Marshall, who calls Judge Holmes's ruling following a February 25 hearing "well-reasoned."

As for DCSD, spokesperson Paula Hans offers this response: "The district has nothing to provide at this time."

Marshall's lawsuit, which is being handled by a legal team that includes Colorado Freedom of Information Coalition attorney Steve Zansberg, points out that the state's open-meetings law "requires that any time three members of a 'local public body' like the BOE [Board of Education] plan to discuss public business 'in person, electronically, or by [any] other means of communication, they must notify the public in advance and allow the public to observe that discussion in real time."

The case contends that Peterson and his colleagues tried to get around this dictate while plotting to bounce Wise by taking part in a series of two-at-a-time get-togethers that Marshall has referred to as daisy-chaining: Director A meets with Director B, who then meets with Director C, who meets with Director D. The plaintiffs contend that such efforts qualify as "bad-faith circumvention" of the law's requirements in a way that the Colorado Supreme Court has forbidden.

The motion for a preliminary injunction argued that "deliberately convening such 'less than a quorum' meetings in seriatim — a process that has derisively been referred to by other courts as a 'walking quorum' or 'constructive quorum' — purposefully to evade the requirements of public notice and transparency that is the hallmark of open meetings, is an affront to the spirit of the law, and to common sense."

Holmes noted in his ruling that "there is a lack of appellate decisions in Colorado regarding whether serial communications violate the COML [Colorado Open Meetings Law]." But as he pointed out, opinions in other states, including Hawaii, disallowed daisy-chaining as a way to slip through a legal loophole. As a result, he granted the motion and ruled that "the Defendants are enjoined from engaging in discussions of public business or taking formal action by three or more members of the BOE either as a group or through a series of meetings by less than three members at a time, except in public meetings open to the public."

Holmes's opinion "recognizes that local public bodies cannot circumvent our state’s open meetings law by discussing public business — and making important policy decisions — through a series of meetings by two members at a time," Marshall says. "The four newly elected school board directors deliberately used this scheme to evade public scrutiny as they discussed and decided ('committed' in both President Peterson’s and the court’s words) to terminate the district superintendent’s contract. There is no weightier policy decision than this for a school board to make. The order says it clearly and plainly: 'Discussions by members of the [Board of Education], let alone ultimate decisions on this subject, should be conducted at meetings open to the public.'"

Holmes found that the four board-member defendants "had come to a decision before the February 4 hearing where they fired Mr. Wise, which is the exact opposite to what they testified to under oath in open court," Marshall adds. "Additionally, the judge's view that they had already come to that decision before the February 4 meeting strongly suggests that the court would find it difficult to believe that February 4 meeting 'cured' the firing of Mr. Wise."

Click to read the ruling on the motion for a preliminary injunction.