The Montezuma-Cortez RE-1 Board of Education on Monday canceled a meeting scheduled for that evening where it planned to “re-create” the secret session in which former Superintendent Risha VanderWey was asked to resign.
No recording of that meeting, announced Jan. 18 to discuss “personnel matters regarding the Superintendent’s evaluation,” was available to The Journal or to a Pagosa Springs lawyer who has filed suit against the district.
The recording was lost because of “technical issues beyond control,” the agenda for the Monday meeting said. The district announced the special meeting on its Facebook page late Friday afternoon.
It was not clear what a “re-creation” of the meeting meant – whether it was a discussion or a re-enactment.
After examining more than 100 emails and messages obtained through a Colorado Open Records Act request, The Journal reported March 15 that VanderWey was asked for her resignation in the Jan. 18 executive session.
While investigating the board’s actions to place VanderWey on paid administrative leave, Pagosa Springs lawyer Matthew Roane on Feb. 8 requested the Jan. 18 executive session recording.
The district replied, “The recording of this executive session was inadvertently and unintentionally not recorded.”
Under Colorado Open Meetings Law, governing bodies must record executive sessions, excluding any portion that involved privileged attorney-client information. They must retain the recordings for 90 days.
The minutes of the Jan. 18 executive session do not list an attorney as a participant. Only the board directors – and VanderWey, for a portion of the meeting – were present.
Brad Miller, of the district’s new law firm, Miller Farmer Law, told The Journal on Monday that his firm advised the district to instead hold any future meeting about the matter in public.
First Amendment and media lawyer Steven Zansberg on Saturday called the move to re-create the recording “utterly perplexing.” Zansberg also serves as the president of the Colorado Freedom of Information Coalition.
He said he knew of no other case in which a board re-created a recording, or of any statute that called for such a re-creation.
“It strikes me as silly,” he said Monday ahead of the meeting’s cancellation.
Caplan & Earnest, which began litigating the case, sent a letter to the district Thursday providing notice that it would no longer handle the case, Miller said.
Miller Farmer Law will officially take over the case after Caplan & Earnest files a motion to transfer counsel responsibilities to Miller Farmer, he said. Miller Farmer will then request an extension of time to respond to the complaint, because it wasn’t involved from the onset, he said.
A lawyer with Caplan & Earnest of Boulder suggested the idea of re-creating the Jan. 18 meeting for Monday’s executive session, Miller said.
“When we became aware of it and worked through it, we suggested that any session that the board have going forward on this probably doesn’t need to be an executive session, but it should be an open session,” Miller said.
While a meeting may be scheduled in the future, the firm “didn’t see the purpose for this” executive session, he said.
“Since we’re transitioning from their (Caplan & Earnest’s) participation in this issue to ours, we just simply don’t have facts and background to have been able to do anything really meaningful in a meeting today,” Miller said. “We’re still learning.”
Miller said he did not know how the Jan. 18 recording was “lost.”
Caplan & Earnest did not return The Journal’s requests for comment about the pending lawsuit last week.
However, Zansberg said courts have authorized open, public meetings as “cures” for unlawful meetings, he said. In these meetings, rather than just “rubber-stamp” previous decisions, boards allowed for public comment, discussed the basis of their decisions and then held a public vote.
Monday’s executive session would have been “unprecedented,” he said.
The meeting agenda did not specify how the board planned to re-create the meeting accurately, and whether it would be based on minutes, notes, recollection or another form of record.
Board President Sheri Noyes deferred questions about the meeting to interim Superintendent Tom Burris, who told The Journal on Saturday that the meeting was a “legal decision.” When asked whether VanderWey would be part of the of the executive session, he said he wasn’t sure who would be present.
“I don’t know exactly how that (re-creation) was supposed to happen,” Burris said in a follow-up phone call Monday with The Journal. “I know there’s a legal piece in there that you can do that, but I don’t know exactly how it was going to happen.”
It isn’t out of the ordinary for a school board meeting to be canceled, he said.
Burris is in his third week as interim superintendent of the district.
“Right now, I don’t have very many of the answers, but I do know the board can do as they pretty much want to do,” he said.
Roane filed a lawsuit against the district Feb. 24, seeking to invalidate the board’s separation agreement with VanderWey and to bar the board from taking formal action without legal public notice.
The board was previously offered Colorado Open Records Act and Sunshine law training by a lawyer from Caplan & Earnest. Executive Director of Human Resources Cynthia Eldredge relayed the offer in a Feb. 8 meeting, and board Director Sherri Wright welcomed the idea.
Only one board member, Cody Wells, has discussed the executive session with The Journal. He said he had no previous knowledge that the meeting would be about anything other than VanderWey’s evaluations.
Another board member, Ed Rice, told The Journal in an email that he saw no need to discuss VanderWey, adding that he would discuss the district’s future.