SAD 63 LAWSUIT MEDIATION NOVEMBER 14

This past Saturday, the 14th, there was a rather large meeting at the Holbrook Middle School. It took over several rooms because it was a formal Mediation between the parties involved in the long-running lawsuit that began when the SAD 63 School Board initially sought to hold the former SAD 63 superintendent, Louise Regan, accountable for certain unauthorized actions. (More information on the history of this matter can be found in previous postings on this blog.) The Bottom Line is that Ms. Regan initiated a lawsuit against the entire Board, as well as five individual members of the Board, and the Board terminated the superintendent from her position.

Because the school district carried an insurance policy ,which came into play once the Board found itself in the position of having to defend itself in this matter, the insurance company urged Mediation be considered at this time (even though the School Board has been successful in the U.S. Federal District Court and, in the writer's opinion, will be successful in the Maine Supreme Court - information which can be found in previous postings on this blog).

It should be noted that the insurance company has been paying out more than the original policy required and that those payments have been for the Board's legal representation. However, even with those payments, the Board has still incurred legal costs which still need to be paid by the voters/taxpayers of Eddington, Clifton and Holden. The longer the case goes on, the more these legal costs will add up - and that does not include the cost of any settlement, should there be one. It is not known if the insurance company will even participate in sharing the burden of any such settlement, should there be one.

So why would the insurance company be pushing SAD 63 and Ms. Regan to enter into Mediation, knowing that (to this point) SAD 63 has been doing quite well? An insurance company is a business. And like any business, they have to produce a year-end Profit and Loss statement. Any outstanding legal case is an open-ended unknown. It gets listed as a footnote in the "Loss" column. Having the case open-ended makes it worse. Getting the case resolved, is better because seeing the final cost of the "loss" is better than not knowing how much more the company is going to "lose" from its profits.

If SAD 63 had filed a cross-complaint against the Plaintiff (Regan), it might have been able to recover costs (which could then reimburse the insurance company). It has tried to recover the costs associated with the case filed in U.S. Federal District Court but that is currently on appeal.

However, the insurance company has spent a lot of money to cover SAD 63's legal fees - more than we expected initially considering the size of the policy. But, as good as the legal services have been - and they have been excellent in this writer's opinion, those costs have been a "loss" as far as the insurance company is concerned (financially speaking). Therefore, it is in the insurance company's best interest to end this matter as soon as possible - to stop the outflow of money (what the insurance company sees as their money).

The other side of the coin is this: We, the voters/taxpayers of Eddington, Clifton and Holden see it as our money that is also paying the bill for the legal services, and it will our money that will be paying at least some, if not all of any settlement costs - not to mention how we may feel about paying anything at all to someone we believe doesn't deserve to be rewarded for doing numerous acts that were not only wrong but betrayed the public trust (of her position). This does not appear to be of significant consequence to the insurance company. The insurance company seems to be more interested in getting this matter closed and "off the books."

And so the Mediation Meeting was scheduled. And it ran all day - beginning early Saturday morning and ran until the evening hours. The Mediator was an attorney who is experienced in these matters. By a flip of the coin, he met first with Ms. Regan and her traditional team (always the team) of attorneys. After some period of time, the Mediator then moved to the room where most of the current SAD 63 Board were in attendance (two being absent because of work schedules) in addition to those individuals who are being individually sued and are no longer on the Board.

The insurance company representative was initially in a third room but at some point may have joined the Board members.

Because the discussions were all done in "Executive Session", specifics of how the Mediation went are unknown. However, having been in mediations in the past, I can provide some general ideas and, having watched the legal representatives of this case in court it is not too difficult to imagine certain aspects of the proceedings.

So, if you will...

The Mediator would have listened to Ms. Regan's attorney spell out all of her claims and justifications of "irreparable harm" done to her by the alleged actions of the Board (including the Board's investigation - since he likes to bring that up every chance he can) and how that has damaged her professionally, emotionally and in every other way he could throw out - all of which adds up to (and in their opinion justifies) an extraordinary settlement fee (meaning high - I would expect something in the neighborhood of $1,000,000) as well as her legal costs which I am sure are equally extraordinary (meaning high - I would expect well over $150,000).

In light of the fact that Ms. Regan's annual salary was $91,000 as joint superintendent for SAD 63 and Airline CSD 8 before she was terminated by SAD 63, plus significant benefits, paid time off and additional financial fees and bonuses, it is unlikely she would obtain similar employment in the future. Particularly with the history of having been discharged under the current circumstances. It is reasonable that these will be added to reasons why the settlement should be high - from Ms. Regan's perspective.

As has been noted in previous postings relating to court hearings, Ms. Regan's attorneys always appear in no less than twos which allows for plenty of billable hours. And the charges in this case have been added gradually which also provides for plenty of billable hours (see previous postings). So it is understandable her legal counsel will try to collect a hefty fee. Remember, it is his business to make money here, too. (Of course, in most cases of this nature, the legal counsel receives one-third of the total settlement. So, at some point Ms. Regan's counsel may magnanimously offer to "reduce" his fees in exchange for the Board accepting some dollar figure for Ms. Regan's "settlement" fee. But, I would guess that legal counsel will take a goodly portion of Ms. Regan's settlement in addition to any attorneys' fee he may also negotiate.)

While making his presentation to the Mediator, it is also reasonable to believe that Ms. Regan's counsel provided quite a dramatic flair. It is his nature, as documented by his presentation at the U.S. Federal District Court before Justice Kravchuk. He did try at the U.S. Supreme Court but the Justices didn't seem to be interested in allowing him time for the "show."

So then the Mediator - after giving enough time to get the picture - and obtaining as much "evidence" as he felt he needed - would then have met with the Board (who are the Defendants). Perhaps his first step would have been to tell the Board how much money the Plaintiff (Ms. Regan) thought was a reasonable settlement or what she was willing to drop her lawsuit in exchange for receiving (meaning how much money would make her lawsuit against them go away). OR the Mediator might have asked the Board what their position was - against the Plaintiff.

I'm inclined to think the Mediator would just have hit the Board straight off with how much the Plaintiff wanted ($$$). And then, because I think the amount is/was outrageously high (based strictly on my impression of the Plaintiff's legal counsel's performance in two court hearings), I expect - certainly hope - the Board was shocked and righteously indignant and said "No Way!"

And then the "negotiations" would have gotten under way. Back and forth - all day long. Many times back and forth - each side (maybe) giving and taking a bit (maybe). You have to have empathy for the Mediator in this type of a situation. as tired as everyone else probably way at the end of the day, the mediator must have been exhausted! I hope he was well paid - and by the insurance company!!

Somewhere along the way, I expect somebody would have said/suggested that if the case goes to trial (projected to be sometime in April) and if it is a jury trial, which is what the Plaintiff is asking for, there is a possibility that members of the jury (human beings) might be sympathetic to the Plaintiff and award her big bucks...so maybe it would be better to settle now and avoid that possibility. (Do we hear Threats of the unknown and Feeding on Fears here? It always happens. Do you want Door #1 or Door #2 - The Lady or The Tiger. Remember that story?)

On the other hand, and I can only hope members of the Board thought and said something like the following:

1. Did we do the right thing?

2. Did we follow proper state law procedure?

3. Do/Did we have documentation - proof - evidence that supported our decision/decisions?

4. If we did, why would we want to settle before the Commissioner of Education holds the hearing state law requires her to hold to review what the Board did (the termination) and which is why we went to the Maine Supreme Court to force the Commissioner to do?

5. IF the termination (process and consequence) was valid, then don't most of the Plaintiff's claims go away by the very fact that the Board was right and correct in its actions AND THEREFORE the Board has nothing for which to compensate the Plaintiff (meaning no money to award her - no settlement - no compensation due)?

6. IF the bulk of her claims/issues become moot (nothing - not valid) because of a hearing before the Commissioner, then the Board's legal counsel can argue before the Superior Court judge (if the Plaintiff insists on going forward with the rest of her issues/claims) that everything that the Commissioner has ruled on cannot be entered into evidence in the courtroom because it is not relevant (since the Board has been found to have acted within state law).

That way, the Plaintiff does not get to argue her termination all over again and that reduces the chance of the Plaintiff playing on the emotions of the members of the jury.

BUT, if the judge allows the termination to be brought into the court room, then the Defendants' counsel gets to show the jury how many ways the Plaintiff betrayed the Board's trust, lied and misrepresented facts and information to the Board and the very people who employed her (meaning the parents, voters and taxpayers of SAD 63 and maybe CSD 8). Is the Plaintiff so sure that there won't be members of the jury who won't see through her and her lawsuit the same way Judge Kravchuk and the Maine Supreme Court justices did and those of us who have been following this case? Pretty risky for the Plaintiff, too, this writer thinks.

As far as Saturday's mediation went, there was no conclusion I guess. Maybe the Plaintiff came down a bit. Maybe the Board offered something. I'm sure it wasn't anywhere what the Plaintiff and her attorneys wanted. Who knows where the insurance company ended up. Hopefully the insurance company will see that the money spent to date has been a good investment for future similar situations. Hopefully the insurance company will see that the Board has got to stick to its guns and see this thing through. To do otherwise is to encourage another mess just like this one, where the wrong person will be hired some day (somewhere) and when caught doing the wrong thing he/she will just initiate a lawsuit in the hopes of getting some kind of settlement instead of punishment.

Of course, just because a settlement isn't reached this time doesn't meant Judge Jabar (Penobscot Superior Court) won't schedule that Alternative Dispute Resolution (ADR) that came up in the last appearance in that court (mentioned in a previous posting). If that happens, Saturday's experience may just turn out to have been a good exercise - a trial run for both parties.

Freedom isn't free. And neither is Justice (or doing the right thing). And they're both exhausting.