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How the Cortez school board ousted its superintendent

Pictured here, the Montezuma-Cortez School District RE-1 Board of Education prepared to enter into executive session in a Jan. 18 meeting. In that executive session, Board President Sheri Noyes asked for former Superintendent Risha VanderWey's resignation.
President Noyes initially acted alone; communications were illegal, attorney says

Montezuma-Cortez Board of Education President Sheri Noyes acted alone in asking former Superintendent Risha VanderWey to resign, and the board’s related electronic communications likely violated Colorado’s Sunshine Law, according to the Colorado Freedom of Information Coalition.

Aug 7, 2022
Update: Montezuma-Cortez Superintendent VanderWey formally resigns
Aug 7, 2022
Montezuma-Cortez superintendent VanderWey placed on leave

School board emails and messages obtained through a Colorado Open Records Act paint a picture of a secretive ouster in which Noyes asked board members to be silent about the “logistics” of VanderWey’s resignation, and in a private group chat she asked board members to vote on the terms of VanderWey’s separation agreement. She asked board members to reply individually.

Risha VanderWey
Sheri Noyes

The Journal learned about the school board’s decision-making process after examining more than 100 emails and messages it obtained through a Colorado Open Records Act request. The Journal requested all electronic communications exchanged between board members in January that discussed VanderWey.

The documents show that Noyes expedited VanderWey’s resignation when she asked the superintendent to resign during an executive session of the board’s monthly meeting on Jan. 18.

The board announced publicly that it would enter the executive session to discuss VanderWey’s evaluation. Colorado law prohibits public bodies from making decisions during an executive session.

The board met behind closed doors for more than an hour, and VanderWey was present for a portion of the meeting. The board did not discuss VanderWey publicly during the open meeting that followed.

It was unclear whether the board reached a consensus to support Noyes’ request that VanderWey resign. At least one board member said he knew of no prior decision.

The next day, VanderWey was given a written ultimatum: Resign or be fired. According to a Jan. 19 letter from Noyes to VanderWey, if a separation agreement wasn’t reached by Jan. 21, the board planned to terminate her contract.

It was unclear who made the decision to give VanderWey the ultimatum.

VanderWey has not publicly addressed her leave from the district.

However, Noyes made it clear in emails to board members on Jan. 20 that she “took sole initiative to ask for (VanderWey’s) resignation first,” without consulting the board.

“I do want to apologize for not bringing you all in to give your thoughts when she asked if were (sic) terminating her,” Noyes said in emails to board members. “Instead, I took sole initiative to ask for her resignation first, with out (sic) asking what you all may have thought on the question. This being said, I can only learn from my mistakes and or/quick decisions and promise to do better.”

On Jan. 21, VanderWey’s resignation was official. Her resignation came six days after she received low marks on a performance evaluation, on Jan. 15. She had spent less than seven months on the job.

A news release Jan. 29 from Noyes attributed VanderWey’s resignation to “philosophical differences.”

Board Director Cody Wells disagreed with the board’s Jan. 29 official statement.

In an instant message to Noyes, he attributed VanderWey’s resignation to “a poor evaluation due to job performance and district liability” rather than “philosophical differences” between the board and VanderWey.

In an interview with The Journal, Wells declined to talk about his reference to “district liability.”

Wells was the only board director to discuss the evaluations with The Journal. On March 9, Wells told The Journal he wanted to talk because he had mixed feelings about the Jan. 18 meeting.

He emphasized that he did not want to tarnish his relationship with other board members, but said he thought the Jan. 18 executive session was to be about VanderWey’s evaluations, and nothing else.

Noyes and Board Directors Sherri Wright, Stacey Hall, Jeanette Hart, and Layne Frazier have not responded to requests for comment on VanderWey’s leave or their evaluations of her.

“I don’t see a need for any discussion concerning Dr. Vanderwey (sic),” Board Director Ed Rice said in an email to The Journal, adding that he was willing to discuss the district’s future plans.

Questions of legality

Jeff Roberts, executive director of the Colorado Freedom of Information Coalition, told The Journal he would be “surprised” if the Montezuma-Cortez School District had a policy providing one board member the power to ask for the superintendent’s resignation.

“It's a board decision to hire and fire a superintendent,” Roberts said. “I just have never heard of a board president having that power on their own.”

Most decisions – especially one to give the superintendent an ultimatum to resign or be fired – should be made within the public eye, Roberts said.

The Colorado Open Records Act

The Colorado Open Meetings Law states:

Members of boards and commissions risk violating the open meetings law when three or more (for a local public body) use email or text messaging to discuss public business, either in a single transmission or in succession. Such electronic conversations are inherently closed because there may be no way to provide advance notice and allow the public to “attend” and observe the meeting.

“Two members of a local board (unless two constitutes a quorum) may email each other about public business with no concerns. The messaging becomes a “public meeting” if one of those board members forwards the email to a third member.

Also problematic: Two members of a board texting or emailing each other during a public meeting about a matter being discussed in that meeting. Such discussions are supposed to occur in public.

Elected officials may exchange emails about scheduling and their availability, and other emails that do not concern the “merits or substance” of pending legislation or public business, without worrying about violating the open meetings law. They may also forward information, pose a question “for later discussion by the public body” and respond to inquiries from individuals who are not members of the public body. “Merits or substance” is defined as “any discussion, debate, or exchange of ideas, either generally or specifically, related to the essence of any public policy proposition, specific proposal, or any other matter being considered by the governing entity.” C.R.S. § 24-6-402(2)(d) (III).

An exception for Colorado Mountain College allows the board of trustees to make decisions electronically under certain circumstances because the trustees serve a large geographic area that is often difficult to travel in winter. C.R.S. § 23-71-119(2).

The Colorado Open Records Act does allow a private email exchange among three or more board members that does not concern the “merits or substance” of public business, such as scheduling and availability, items for future, public agendas and responses to public inquiries.

VanderWey’s separation agreement with the district, signed Jan. 27, provided her a severance payment of $54,597.70 and a release of claims for both parties. The agreement prohibits the board and VanderWey from discussing the separation agreement with a third party.

VanderWey had requested payment through the end of her contract, June 2023.

Noyes asked the board to vote about the terms of the agreement, and the wording of news releases about VanderWey, in what are known as “serial meetings,” “walking quorums,” or “daisy chain” discussions. She sent all board members the same information – sometimes in one email or group text, sometimes in separate messages — and asked for individual replies by message, email or phone.

Amid COVID-19 outbreaks, the Montezuma-Cortez school board experienced backlash for suggesting the use of “daisy chain” votes to decide if it would close or suspend classes. The board decided to avoid the “daisy chain” vote because it lay in a “legal gray area,” then-President Wright said.

On Wednesday, a judge in Colorado clarified the issue, ordering the Douglas County school board to comply with the open meetings law and held that a series of one-on-one meetings violated the “spirit” and “purpose” of the statute, The Denver Post reported. In that case, four members of the board met privately one-on-one to discuss replacing former Superintendent Corey Wise, who was fired in February.

A Pagosa Springs attorney, Matthew Roane, filed a formal complaint with the Montezuma County District Court Feb. 24 alleging that the Montezuma-Cortez school board violated Colorado’s open meetings law in a series of private meetings deciding on VanderWey’s paid administrative leave and separation agreement without notice to the public.

First Amendment and media attorney Steven Zansberg, who also serves as president of the Colorado Freedom of Information Coalition, represents the plaintiff in the lawsuit against the Douglas County school board, Robert Marshall.

“Certainly distributing the same email to every member of the board (discussing the public business of the board) by the board chair is unquestionably a violation of the open meetings law as a series of daisy chain communications,” Zansberg said.

Zansberg said Noyes’ request for individual responses is “pretty clear evidence of an intent to evade the law.”

“That’s not ambiguous, there’s not a gray area: It’s black and white,” Zansberg said.

Under open meetings law, three or more board members may not meet to discuss public business unless the public is notified and given the opportunity to “observe that discussion in real time,” he said.

“It can be done in a series of communications, where three or more members are discussing public business by relaying information between them,” he said.

Zansberg reviewed some of the Montezuma-Cortez school board’s communications and said they are “definitive, irrefutable” proof of a violation.

Merely “adopting a position” or reaching any sort of decision in an executive session, even informal, is an infraction of the open meetings law, Zansberg said.

Further, Noyes would be in violation of the law even if she asked whether any board member disagreed with her decision, Zansberg said.

Montezuma-Cortez Board of Education Directors Jeanette Hart and Ed Rice cast their votes in a group chat available to all board members, messages obtained by The Journal show.
An excerpt of a conversation between Board Director Cody Wells and Board President Sheri Noyes, received by The Journal under a Colorado Open Records Act request.

Noyes’ emails to residents who asked about the board’s actions were ambiguous. In a response to a resident, Noyes said the board could not speak about VanderWey’s leave because it was a “personnel matter” discussed in executive session.

“The reasons behind any decision or vote is (sic) actually supposed to be ‘secret’ due to the executive session laws,” she said in another email.

And as speculation and unofficial word of VanderWey’s leave circulated among Cortez residents and school employees, Noyes blamed a “breach of confidentiality.”

“I will not break laws to put minds at ease when people feel they have a ‘right’ to certain information,” Noyes wrote in an email to a parent.

In messages obtained by The Journal, Noyes contended that the district was “very transparent,” while in other messages she urged the school board not to discuss VanderWey’s leave with the public or reporters.

After VanderWey’s resignation, the district received a “high volume” of Colorado Open Records Act requests, said Human Resources Director Cynthia Eldredge during a Feb. 8 board meeting.

The board created a formal document to field the requests, and a fee of $33.58 per hour after the first hour of retrieving records. The Journal requested the board exchanges Feb. 1, and received the documents Feb. 15.

Residents wanted to know whether the board voted to remove VanderWey. In an email comment, Wright emphatically denied a vote was taken.

“I will tell you that it is illegal to take a vote in executive session, and THERE WAS NO VOTE TAKEN. When the board is released to answer SOME of these questions they will,” she wrote.

No board member responded to requests for comment on the board’s decision-making process about Risha VanderWey’s resignation and her separation agreement.

Noyes reminded board members not to reply within the group chat several times, noting that she wanted to “keep things legal.”

The Colorado Association of School Boards did not respond to a request for any state policy outlining protocol for terminating a superintendent’s contract.

Documents reveal 'daisy chain’ vote

Instant messages between board members received by The Journal revealed that the Montezuma-Cortez board did vote through an electronic chat about VanderWey’s separation agreement. Some comments surrounding the vote were redacted.

When considering the separation agreement, the board voted 4-3 to remove conditions about nondisparagement and voted 6-1 to deny VanderWey a monetary payout of her insurance premium through June. The removal of the nondisparagement clause would “allow us to respond to any negative or incorrect information that might be out there” Noyes wrote in a group message.

The insurance payout was $4,868.50.

In a message to Noyes, Wells said that $5,000 was a “small price to pay” to “minimize slanderous language” from VanderWey.

The documents revealed one-on-one conversations between Noyes and Wells and Noyes and Frazier. Wells required additional discussion.

Messages between Wells and Noyes:

(Messages are quoted exactly as they appear over the course of a few days, minus redactions)

Sheri Noyes to Cody Wells: Hi Cody, not sure if you got the reminder email but I just wanted to text you and remind you that the superintendent evaluation is due today. If you can’t make that happen just let Cynthia in HR know. Thanks!

Noyes to Cody Wells: (Redaction)

Wells to Noyes: Okay, thanks

Noyes to Wells: (Redaction)

Noyes to Wells: FYI Risha has been put on paid administrative leave things are in order at the admin office please do not discuss any logistics with the public or reporters.

Wells to Noyes: I would be fine with paying out the benefits if we keep the verbiage. Absolutely keep the nondisparagement paragraph.

Noyes to Wells: I just sent a new text. She still can not sue us and it gives us the opportunity to reply to any misinformation that may arise from her. I feel they want this out because she has already crossed the lines. Not trying to change your mind just a little more info for you. Please reach out with your final thoughts/concerns.

Wells to Noyes: I’d easily pay $5,000 to minimize slanderous language. Small price to pay. That’s my stance. I don’t even care that it’s vague. Let it be vague. That would just keep her on her toes with what she says.

Noyes to Wells: Ok leave the verbiage but the 5000 is for to pay her cash equivalent to her insurance premium. Do you want to do that or would you rather not? So it’s two part situation.

Wells to Noyes: That’s exactly right. I very much believe that would be in the districts best interest. We’ll already be putting out fires for this and I think it would go a long ways if we’re not fighting her as well. That’s where I’m at.

Noyes to Wells: Ok text isn’t reading well. 1. You are for leaving the verbiage in. 2. Do you also want to pay her the $5000ish extra for her insurance premium equivalent?

Wells to Noyes: Would you send me the agreement?

Noyes to Wells: I do not have it yet. I will as soon as I do.

Wells to Noyes: I don’t care much for the philosophical differences portion. I think that just gives peoples minds leeway to believe that we’re all far right wing and that we only got rid of her because of political differences. The reality is that we gave her a poor evaluation due to job performance and district liability. Now I understand that we can’t just say all of that so my suggestion is that we say something to the effect of “This is a direct result of the superintendent Evaluations and the board as a whole believes that this is truly in the best interest of our entire district. We thank our entire community for their patience because confidentiality and legalities need to be adhered to throughout this entire process.”

Wells to Noyes: 3rd option for me. Thanks

Noyes to Wells: Thanks Cody.

Wells to Noyes: I seen a couple of spelling errors so just make sure things are reviewed and difficult was meant to be direct

Noyes to Wells: Oh Ok. I will make sure. I am also having them review by the lawyer.

Wells to Noyes: Perfect. I assumed but we all know how that goes.

Wells to Noyes: FYI (I hate to be a pain here) but I can not get behind philosophical differences being the reason for resignation termination or administrative leave. That’s not where my hearts at, that’s not truthfully why she’s resigning and I don’t think that’s an ethical reason for a poor evaluation. I truly believe that these decisions need to be performance based and not political. I’ve said my peace so decide how you believe is right but know that while I won’t undermine the board or its members, I will not stand behind any decisions being due to ‘philosophical differences.

Noyes to Wells: I will have to somewhat agree with you on this (redaction). I would like to state the exact reasons why too, but like we all know, that is just not an option. I can get by with using the wording working as well, but I think adding a reason why was better than leaving it just philosophical

Wells to Noyes: (Redaction) I am firm on option 3. I stand by my evaluation and would rather give a truthful statement even anticipating the many challenges we would have to overcome. I still cannot support philosophical differences being the cause for resignation. Also, because we removed the verbiage around nondisparagement, she is just going to tell everyone that our statement is untrue and that is not why she resigned.

Noyes to Wells: I can absolutely respect this, however, this was what the majority leaned toward. I know we will get push back no matter how it is stated and what words are used. It can be used in this sense: having a calm attitude toward a difficult or unpleasant situation. Which to a degree I believe it was as such, but I also see where you are coming from.

Wells disagreed with the wording of the Jan. 29 letter that stated VanderWey and the board had “philosophical differences.” Wells argued it was not “truthfully why she’s resigning.”

“I truly believe that these decisions need to be performance based and not political,” Wells wrote to Noyes.

In her response, Noyes wrote that stating “the exact reasons why” VanderWey was resigning was “just not an option.” She added that the majority of the board supported her phrasing.

The emails and messages did not reveal the “exact reasons” for VanderWey’s resignation or why they have remained secret. A message indicated there was a “district liability.”

“I can only speak for myself, but there were no personal issues that let (sic) to Dr. VanderWey’s paid Administrative Leave,” Noyes said in an email to a parent.

Noyes responded to one resident that none of her decisions were fueled by personal politics.

In his conversation with The Journal, Wells said that while he likely would disagree with VanderWey on some political topics, they never discussed it.

Wells was the only board member who had not registered to vote with a specific political party, according to 2021 voting records. The other members were Republicans. VanderWey was a Democrat.

VanderWey joined the school district amid sweeping change, including new administrative staff, a transition to a four-day week, and conversations about consolidating schools, COVID-19 and critical race theory.

Months before VanderWey’s arrival, school board member Lance McDaniel was ousted by a 2-1 recall vote after complaints about his comments on social media.

VanderWey sometimes disagreed with the board’s majority opinion on topics such as school closures and masking. She instigated school closures because of workforce shortages and COVID-19 cases in October, drawing mixed reactions from the community and board.

School board meetings became increasingly turbulent as attendance increased and public comment filled the one-hour limit.

Disagreements about hot-button, politically colored conversations led board members Jack Schuenemeyer, a Democrat, and Chris Flaherty, unaffiliated, to resign in September.

Five of the six open school board positions were uncontested in the November election. Rice replaced incumbent Tammy Hooten. Frazier and Hart also were new to the board. Former Assistant Superintendent Lis Richard went on disability leave in January.

Tom Burris was selected as interim superintendent while the district searched for VanderWey’s replacement.

Wells’ conversation with The Journal

For board member Wells, the outcome of the executive session was a surprise.

“I believed going into that (Jan. 18) meeting that it was the evaluation only,” Wells told The Journal, adding that he had no knowledge about a decision to ask for VanderWey’s resignation. He said it “blew” his mind.

“I personally would have thought if there was going to be any kind of action, that should have been another meeting,” he said.

“I think back sometimes,” he said. “Could I have navigated things better? I don't know. But that’s been hard for me. That’s been on my mind a lot.”

He said he has a good working relationship with the board and didn’t want to “throw anyone under the bus.”

He spoke instead about VanderWey and his evaluation, which he said was “very fair” yet “very critical.”

“I met with her every week. I got along with her. I liked her. And so when it when it came time to have that meeting, it was a very tough thing for me,” he said. “I believe she truly cared about the students. … And I think she did a very good job,” he said.

Wells said he has been approached by people with negative comments about the district. It’s an “unfair overview,” he said.

“There’s a lot going on with our district right now, and I think it’s very easy to look at kind of a lot of negative things,” Wells said. “But there’s a lot of really good things we have coming up with our district. I think we have the right people in the right places. Give it a little bit of time, and I think we’ll have a district that we can be very proud of. I advocate for that. I believe it.”