[B]ENNINGTON — Residents who sued the Mount Anthony Union School Board over alleged violations of the state’s open meeting law are calling on the district to settle the outstanding issues prior to a trial, after the board’s motion for summary judgment in the suit was rejected.
“I think the judge was pretty clear that his idea of the [open meeting law provisions in dispute] isn’t going to change,” Mary Gerisch, one of the six plaintiffs, said this week. “We are going to get in touch with their attorney and try to settle this.”
In a decision on the motion, filed Aug. 28 at Bennington Superior Court Civil Division, Judge William Cohen rejected key arguments from the board, including that the law was being followed and that the plaintiffs had not stated viable complaints to meet the requirements of the meeting law.
Gerisch said the plaintiffs have tried to settle the dispute without seeking monetary damages “about 20 times” since the suit was filed in March 2016 concerning MAU Board meetings in April and September 2015. However, she said the message the plaintiffs received was that the board “was following the law.”
Reached via email, Amanda Lafferty, of Stitzel, Page & Fletcher, of Burlington, which represents the school district and board, responded on Thursday, “The board will consider the decision and how it wishes to proceed in that matter at its next meeting.”
The board’s next posted meeting is set for Sept. 20 at 7 p.m. at the Mount Anthony Union Middle School.
Gerisch said the issue the plaintiffs saw as the major obstacle to reaching a settlement concerned the selection of former MAU High School Principal Glenda Cresto on April 7, 2015, after the board first met in executive session. The plaintiffs had focused much of their complaint on meetings leading up to that board vote, seeking “an injunctive order requiring that the current MAU principal be suspended pending a proper hiring procedure,” including an open meeting for discussion of the hire.
But Cresto, whose hiring was controversial among many school staff members when she was hired over then-Assistant Principal Michael Molloy, left the school system in August. Cresto previously said she would leave at the end of the current school year, when her contract would end, but she and the board reached a separation agreement that called for her to leave immediately but be paid through June.
Gerisch said the plaintiffs want the board to adopt a new policy for conducting its open meetings and executive sessions and a clear policy for how searches for principals and other employees are to be conducted.
The other plaintiffs are Jeanne Connor and Jeannie Jenkins, both members of the Bennington Select Board, and Laurie Mulhern, Nancy Sanford and Eileen Zazzaro.
In his 10-page decision rejecting the board’s motion, Cohen stated in part, “As should be clear to the parties, the court has found much of the board’s interpretation of the open meeting law to be incorrect.”
However, the judge also noted that the plaintiffs did not move for a summary judgment in their favor and that “many of the facts could shift at trial.” He added that “this motion did not address the appropriate remedy should the court find, following a trial, that the board violated the open meeting law. The court leaves this issue for trial.”
As taxpayers, Gerisch said the plaintiffs do not want to see the suit continue to cost the district in legal fees. Since there has been no demand for monetary damages, she argued that the board could settle the suit even without an admission it had violated the law by adopting a new policy and “agreeing to follow it.”
During a hearing on the motion on Aug. 18, Lafferty argued in part that, “There is no claim of a specific damage to any of the plaintiffs,” adding that “all of the claims for damages are generalized grievances that are essentially expressions of concern for the public.”
The board, she said, “is complying with the open meeting law. Every alleged count in the complaint is not actually required by the open meeting law.”
The plaintiffs contended that both the substance and “the spirit of the law” were violated, and that an overall lack of transparency concerning meetings and decisions involving the MAU board was their chief complaint.
The allegations included 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 meetings central to the suit, on March 18 and April 7, 2015, the board first discussed hiring a new MAU High School principal and then hired Cresto on April 7, after meeting first in executive session. The second meeting was held a week earlier than originally scheduled because of a pending school vacation week, but it wasn’t posted as a special session, the plaintiffs said, and the agenda did not clearly state that a vote would be taken on a new principal.
In addition, the plaintiffs said confusion resulted when the board opened the April 7 meeting in open session but in the room normally used for executive sessions, then held an executive session there before moving to the normal open meeting venue — the middle school library — and subsequently voted to hire Cresto.
Gerisch told Cohen at the motion hearing that upon arriving for the meeting, she could not find the location before being shown to the conference room by a news reporter.
The suit also alleged it was improper for the board on Sept. 16, 2015, to enter an executive session to discuss the creation of five part-time school positions. Cohen agreed, saying in part, “Again, the court finds that this interpretation of the open meeting law [by the board] flies in the face of both the letter and the spirit of the law.”
In another section of the decision, Cohen agreed with the plaintiffs that the April 7 board agenda was improperly amended.