In a special meeting Tuesday, the Montezuma-Cortez RE-1 Board of Education plans to ratify its previous private decisions to place former Superintendent Risha VanderWey on paid administrative leave and to enter into a separation agreement with her.
The meeting will now be broadcast to YouTube, according to a new agenda announced on the district’s Facebook page Sunday at 6:51 p.m. The meeting was originally available in-person only, according to the original agenda, posted March 30.
The board also plans to announce its finalists for the district’s open superintendent position and to review other policies, including salary schedule. The original agenda said that the board would name a finalist.
And while the previous agenda stated that the board would take formal action on the “ratification” of the former superintendent’s paid administrative leave and separation agreement, the action items are listed only as “paid administrative leave” and “separation agreement” on the new agenda.
“Paid administrative leave” was a discussion item on the original agenda, but it has since been removed.
The meeting comes 11 weeks after VanderWey was asked for her resignation in a Jan. 18 executive session. VanderWey was given a written ultimatum Jan. 19 to resign or be fired. Her resignation from the district was official on Jan. 21.
Pagosa Springs lawyer Matt Roane filed a lawsuit against the district on 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.
Despite the planned ratifications, “there would still be a need to determine whether the prior decisions were lawful and binding,” Roane said.
“But in terms of real-world consequences, the proposed actions would address a lot of the problems that the lawsuit was filed to rectify,” he said in a text, adding, “The public is entitled to the sausage, and seeing how the sausage is made. Consequently, the Board must share the thoughts and motivations underlying their decisions in order to make a truly public and lawful decision.”
The board cannot just “rubber stamp” prior decisions and “consider the matter closed,” he said.
In 2012, the Colorado Court of Appeals ruled that a governing body can “cure” an open meetings law violation by holding a meeting that complies with the law “provided the subsequent meeting is not mere ‘rubber stamping’ of an earlier decision in violation of the Open Meetings Law.”
“To me, that means having a substantive discussion in a public setting,” said Jeff Roberts, executive director of the Colorado Freedom of Information coalition, in an email.
In the subsequent lawful meeting in that 2012 case, Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks & Outdoor Recreation, the board in question heard additional comment from several people involved in the case, including a representative from the Colorado Off-Highway Vehicle Coalition, as well as public comment. The board then “engaged in renewed deliberations before announcing its ultimate decision.”
The board does not plan to accept public comment at Tuesday’s special meeting, according to the agenda.
The Journal filed a series of Colorado Open Records Act requests after the district issued two brief news releases recounting VanderWey’s leave. No public discussion of the personnel action occurred. In a Feb. 11 meeting that ran just over two minutes long, the board voted to accept VanderWey’s resignation.
The second news release said she resigned because of “philosophical differences” with the board.
Messages obtained through The Journal’s records request showed that board Director Cody Wells did not agree with that reasoning, and instead attributed VanderWey’s resignation to “a poor evaluation due to job performance and district liability.”
In an interview with The Journal, Wells declined to elaborate upon his reference to “district liability.”
In one message, board President Sheri Noyes wrote that stating “the exact reasons why” VanderWey was resigning was “just not an option.” She told Wells that the majority of the board supported her phrasing.
The emails and messages The Journal received did not reveal the “exact reasons” for VanderWey’s resignation or why they have remained secret.
The Journal also discovered that the board’s separation agreement with VanderWey was discussed and approved in online chat discussions in which Noyes 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.
VanderWey’s employment contract with the district contains a clause that states an evaluation would not be cause for personnel actions.
The clause reads:
“The Board shall evaluate and assess in writing the performance of the superintendent during the term of this Contract pursuant to the District evaluation procedures and state law. Nothing in this evaluation section or its implementation shall be deemed to create or to be a prerequisite to or condition of dismissal, termination, or other personnel actions as otherwise provided herein.”
The contract did, however, authorize the board to suspend VanderWey at any time “with pay and benefits and without prejudice for such purposes and period of time as the Board deems to be in the best interest of the District.”
The contract allowed for VanderWey’s termination by mutual agreement, disability of the superintendent, discharge for “good and just cause,” death of the superintendent or unilateral termination by either party.
A special meeting March 28 to ‘re-create’ the Jan. 18 executive session was canceled after the board’s new law firm Miller Farmer Law “didn’t see the purpose” of the session and advised the board to hold any future meeting about the matter in public.
First Amendment and media lawyer Steven Zansberg called the move to re-create the recording “utterly perplexing.” 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.
Interim Superintendent Tom Burris has not responded to a request for comment on Tuesday’s special meeting. Board President Sheri Noyes previously deferred district inquiries to him.
This article was republished Sunday, April 3, to update the school board’s change in protocol for the special meeting Tuesday.