Money, Motivation & District Court Hearing of 5/7/09

I admit to being comfortable in courtrooms. I enjoy listening to legal arguments being presented to both judges and juries. It's been a major part of my career - and my son is an excellent trial attorney with a respected practice in Southern California. At one point we even had separate cases before the same judge. Now that was an interesting experience. I tell you all this as a way of explaining why I found this morning's Oral Arguments in U.S. Magistrate Judge Margaret J. Kravchuk's courtroom in the Federal Court House (as to the nature of this case between former superintendent Louise Regan and the SAD63 School Board) both illuminating and enlightening - on several levels.

It is a small courtroom. Basically set up for two opposing counsels, each with a table long enough for three people. A table microphone sat on each table. Behind the chairs at each table, divided by a narrow aisle, there were two short benches - each capable of seating three people at most. I sat at the back bench near the rear door and located behind Ms. Regan's table. It was the shortest bench in the room and capable for two small people, at best. This was definitely not going to be a Perry Mason experience.

Ms. Regan was there with two attorneys. They all sat at the front table to the left. No one else was there in support of her (the plaintiff). Mr. Dench, the attorney for the School Board (the defendants) sat alone at the table to the right. Seated in the rear bench behind Mr. Dench were Don Varnum, School Board Chair; Susan Dench, Mr. Dench's wife; and Karen Clark, School Board member.

Both because I was the last person to enter the room as the proceeding began and because I try to be objective when listening to oral arguments - to better hear the issues and evaluate the case being presented (unless I'm the one presenting the case as I once did) -, I sat in the bench closest to the door and to the rear which placed me behind the plaintiff's table.

Judge opened the proceedings by asking Mr. Dench to clarify some of the issues regarding Maine law pertaining to the process Ms. Regan had available to defend herself and answer to the School Board's charges used for termination of employment (called predeprivation procedure). However, there are certain court decisions (precedent decisions) which the plaintiff is claiming apply in this case which justify the plaintiff's claim that her constitutional rights were violated.

To try to put it in a nutshell, the plaintiff says state law requires the plaintiff had to be officially notified of all of the reasons the Board used to justify terminating her. The plaintiff further states she was not told some of the reasons - only of certain reasons relating to the matter of the taped minutes pertaining to the Board's authorization to talk but not some of the actions the plaintiff had taken early on regarding potential school consolidation partners.

As a side note, various individuals have told me that because of certain unauthorized actions taken by the plaintiff, a former Board member prepared and read a letter in an open Board meeting listing a series of concerns he had re: the plaintiff. Some Board members left in the midst of the reading of the letter. Other members stayed and listened, without comment, until the reading of the letter, was completed. Then the Board adjourned into Executive Session.

As a result of that Executive Session, the letter was withdrawn by the Board member, the Board apologized to the plaintiff, (perhaps there was a clarification or a misunderstanding of the Board's authorization or ?? I don't know - yet. But there was some kind of an agreement between the Board and the plaintiff to let the matter drop and that the plaintiff would not take any legal action against the Board or individuals - hereinafter referred to as the "gentleman's agreement")

But - within a week (or thereabout), the plaintiff had filed a lawsuit against the School Board (thereby breaking the "gentleman's agreement) and I don't have the particulars of what else happened - except that the plaintiff was terminated "for cause" - because of the way the taped minutes had been attempted to be withheld from the Board. Then the plaintiff's filing of a police report when the tape had reportedly been removed by a Board member became an issue. Maybe all these things were happening at the same time or one thing was stimulating the next. Whatever - things were not good.

Somehow the plaintiff was notified that they were considering terminating her for cause and that she had the right to appear before the Board along with an opportunity to respond to the charges and give her explanation (defense). Apparently, when she did appear, she brought along an attorney she had hired independently. And this attorney reportedly directed her not to respond to the Board regarding the charges (that they had notified her were the basis being used for termination).

And this brings us to why the plaintiff has taken her case through the court system instead of through the Superintendent of the State Dept. of education.

The Plaintiff (via her attorney) had taken the position that the reasons she was terminated involved four (4) additional reasons than the ones she was officially notified by the defendants. (1) That she broke the "gentleman's agreement" and brought a lawsuit against the defendants, (2) that she hired her own independent counsel, (3) that she filed a police report when the Board member removed the taped minutes, and (4) this one I don't remember..wasn't taking notes. The plaintiff is stating that since she was not given official notice of these reasons, the defendants did not follow the state law in providing the notification of (all of) the charges as required by law. By this omission on the part of the defendants, the plaintiff is claiming her constitutional rights were violated citing certain precedent cases and that the state procedure (predeprivation procedure) does not apply. Therefore, she is requesting the court grant her all back pay, give her back her job, pay all of her attorney fees, and - in essence - money.

The defendants (via their attorney) are stating that the precedent cases cited state that if there is a predeprivation procedure (which there is and was) there was every opportunity for the plaintiff to explain her actions. In the course of doing so, any of the subsequent actions which she's stating she was never officially notified regarding would have come out. But because the plaintiff chose to not answer any questions, the results of the Hearing before the defendants was because of the plaintiff's own actions.

Additionally, the plaintiff had the right to take her case up to the Superintendent of the DOE (basically appeal the defendants' decision) but the plaintiff chose to defer (her legal decision via her attorneys) and instead chose to continue her lawsuit against the defendants through the courts.

The matter before Judge Kravchuk seemed to be (1) did the plaintiff have recourse through state law to appeal the defendant's termination, (2) had she been given sufficient notice of the reasons for that termination to meet the requirements of the law, and (3) would she have had the opportunity (by going to the DOE superintendent) to have her termination overturned if the DOE superintendent determined the defendants's had acted without sufficient cause or justification (since she would have been able to point out the additional reasons she believed were used even though she was not so notified they were part of the reasons - and did she have the opportunity to have the DOE superintendent consider those actions as well).

While the plaintiff's attorney seemed to argue over and over and over that the case precedents were applicable, particularly because of certain footnotes in the precedents, the judge appeared to be leaning toward the fact that the plaintiff had state law which provided appropriate predeprivation procedures which the plaintiff had chosen to defer (meaning she had chosen not to use). While the judge did not take any position as to whether or not the defendants had acted appropriately (had had just cause - or not), the issues seemed to center around the fact that the plaintiff had purposely chosen not to use the recourse she had at hand.

The judge did not make her decision at the end of the designated hour but I got the feeling that she will render a decision soon - maybe within two weeks or less. Of course that doesn't mean that the plaintiff can't appeal the decision up to the Appellate Court (and the defendants will have to respond there, too) and everyone will incur the costs. However, Judge Kravchuk is very respected and it is not that likely her decision would be overturned.

So, some of this seemed positive. However, there were some disturbing pieces of information that came out - whether the information was taken out of context is unknown.

The plaintiff's attorney stated he had written and interview statements from three School Board members (stating) they (Board members) had not read response documents provided by the plaintiff. Excuse me! Board members have tremendous responsibilities to the public and to school district employees, and in all legal matters Board members (ALL board members) are responsible for reading ALL documents regardless of who is submitting them or the personal opinion a member may have of the person doing the submission. Don't want to do the work of the elected office? Then don't run! The attorney also said that one Board member stated he/she (?) only voted for the plaintiff's termination because the plaintiff hired a private attorney - which was not one of the official reasons given for termination. The attorney inferred that, but for that vote, the attorney might not have been terminated. One has to wonder who on the Board is paying attention to BUSINESS. Sounds like a Koffee Klatch at times. And our children's education is in the hands of such people? And our hard earned tax dollars?

On the other hand - if one thinks in terms of Motivation...maybe we have a few clues why the plaintiff chose not to utilize the DOE superintendent as the appeal route. For arguments sake - let us say the defendants were not justified in terminating the plaintiff - what remedy could she expect to receive from the DOE? Money? No. A return to her position? Possibly. But that was at a time when everyone was expecting SAD63 to consolidate, probably with Brewer and Dr. Lee was pretty much the foregone expected superintendent-to-be of the projected RSU.

So the plaintiff either needed to find a different route of consolidation in the hopes she'd be a stronger candidate for superintendent (not likely based on what I've been able to find out was going on and the feelings of the towns as to where they were willing to have their children going to school) - or - she needed to find a bunch of money to replace the money she was going to lose by being out of work. The lawsuit through the federal courts where she might be able to obtain "punitive damages" was a pocketbook to be tapped. Looks like a motive to me. And if that's the case, it certainly takes the School Board off the hook.

What do you think? The talk around town (at the gas pumps, at the restaurant, at the post office, etc.) is filled with snippets of info. I just listen. Sometimes I ask Questions.

FYI for those who assume there's someone on the Board whispering in my ear - you need to remember the error of assuming. There are people who have decided to be "reporters" because they like this blog - think it's good that someone is finally throwing some light on people/elected bodies who should be accountable to the voters/taxpayers and who have forgotten that that's their duty first and foremost. They call from Clifton, Holden, Eddington - even stop and chat with me when I'm in Brewer. And it's not easy to find my phone number. But people can always write in the comment sections here. :-)