Polar opposite views emerge in Open Meeting Law lawsuit

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BENNINGTON — A hearing in a lawsuit brought against the Mount Anthony Union School Board revealed sharply different interpretations of the requirements of Vermont's Open Meeting Law.

An attorney representing the school board argued in Superior Court Civil Division that the claims of six residents who filed suit in March 2016 over meetings leading to the hiring of a new high school principal contain no valid claims listed under the provisions of the state law.

Meanwhile, the plaintiffs contended that "the spirit of the law" was certainly violated and that an overall lack of transparency concerning meetings and decisions involving the MAU board is their chief complaint.

The arguments were heard Friday in the Bennington court before Judge William Cohen, who took the defendants' motion for a summary judgment under advisement.

Amanda Lafferty, of Stitzel, Page & Fletcher, of Burlington, which represents the school district, contended that the plaintiffs had failed to specify specific allowable claims for relief allowed under the meeting law, and that four of the plaintiffs had not attended a key board meeting when alleged violations occurred and therefore could not have standing in the matter under the law.

"There is no claim of a specific damage to any of the plaintiffs," she said, adding that "all of the claims for damages are generalized grievances that are essentially expressions of concern for the public."

The board "is complying with the open meeting law," Lafferty said. "Every alleged count in the complaint is not actually required by the open meeting law."

The allegations include that the board called executive sessions improperly; did not move properly in open session to enter into executive sessions; failed to notice a meeting not held on the board's regular meeting date as a special meeting, and prepared an agenda that did not properly reflect topics of discussion and failed to amend the agenda as the first order of business.

During two of the board meetings at the heart of the suit, on March 18 and April 7, 2015, the board first discussed hiring a new MAU High School principal and then hired Glenda Cresto on April 7, after meeting first in executive session.

Ironically, Cresto, whose hiring was controversial among many school staff members and residents when she was hired over then-Assistant Principal Michael Molloy, left the school system last week.

Cresto previously said she would leave at the end of the current school year, before her contract would end. But the MAU board voted Wednesday after an executive session to agree to the separation agreement with Cresto, the details of which are not made public.

In addition to seeking a court directive requiring the board to adhere to the meeting law and establish new policies that provide greater transparency for board actions, the plaintiffs had requested "an injunctive order requiring that the current MAU principal be suspended pending a proper hiring procedure and an opening meeting for discussion of same ."

Mary Gerisch, a former attorney who is one of the six plaintiffs, told Cohen Friday that as a result of Cresto leaving the principal's position, that portion of the suit has been dropped. But she and other plaintiffs said they are still asking that the board be declared to have violated provisions of the open meeting law and ordered to comply in the future, and set new board policies to ensure transparency.

Our request for relief is really simple," Gerisch said. "We don't want to be here spending taxpayer money. All we want is that the school board say they will follow the open meeting law and make a policy so that all boards know that. Also to make a policy in regard to hiring ... ."

The other plaintiffs are Jeanne Connor and Jeannie Jenkins, both members of the Bennington Select Board, and Laurie Mulhern, Nancy Sanford and Eileen Zazzaro.

Allegations in the suit include that the MAU board improperly called an executive session in April 2015, improperly posted a special meeting of the board on April 7, 2015, which also had an agenda that "did not accurately reflect matters to be voted on, and that the agenda was not amended that night "as the first order of business" of the MAU Board.

The plaintiffs said Friday that there have been a number of instances in recent years when the actions of the board in posting meetings and during meetings created confusion and a lack of transparency.

The board, through its attorneys, has denied the allegations.

Lafferty said during the motion hearing that information about the two meetings was made available to the public, and that it was announced at the March 18 meeting that an expected recommendation on a new principal from Superintendent James Culkeen would be postponed until the next board meeting, which was then announced as set for April 7.

The board also was acting within its specific authority under the law, she said, in changing the agenda order or taking the other actions listed in the suit.

"The board was not trying to hide this," she said.

The superintendent and board members were heavily criticized when it was learned Culkeen had previously telephoned Molloy and told him he would be recommended for principal, but then switched in executive session April 7 when he found that Cresto had board support.

He later said that Cresto was his original choice, but he thought the outside candidate lacked support from board members, before learning April 7 that was not the case.

Plaintiffs argued Friday that it was unclear whether there might be a board vote on April 7, or just a recommendation from Culkeen, and that the meeting date had been changed so as not to fall within a spring school break period but it wasn't identified as a special meeting, leading to confusion for the public.

Gerisch told Cohen that there was no formal board vote March 18 to change the April meeting date, after it was announced by Culkeen. And she argued that the board's executive session meeting room — where the April meeting opened, rather than in the normal meeting room — was difficult for her to find and is not marked.

The board holds its open sessions in the library at MAU Middle School in Bennington and executive sessions in a conference room. Gerisch said she learned of the conference room from a news reporter. The April 7 meeting began in a brief open session in the conference room.

"I guess what we are all saying," she told Cohen, "is that when you take this picture as a whole" it is difficult for the public to have faith in its government "if we don't know what's going on."

Gerisch said she had complained several times about procedures of the board but was always told, "We are following the rules."

The plaintiffs believe they "do have standing [to file the complaint] as members of the public and voters who elect the school board," she said.

Gerisch added after the hearing that the plaintiffs have been willing to settle the suit without a finding of violations if the board would agree to set new, clear policies regarding its meetings and executive sessions.

Cresto succeed longtime Principal Sue Maguire in April 2015. She previously was assistant principal at Richford Junior Senior High School.

The board and Culkeen faced intense criticism at a May 2015 meeting, after the April 7 decision to hire Cresto. Speaking to more than 40 residents and officials, the superintendent said in part, "I can definitely see where it's thought that there's a lack of transparency, but believe what you will, it was unintentional."

Jim Therrien writes for New England Newspapers in Southern Vermont and VTDigger.org. @BB_therrien on Twitter.



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