During the February 11 meeting, the suit contends the board used a secret session to demand that Superintendent Peck resign.
For months now, the Custer County School Board has been spinning a narrative that they have been working transparently with the public regarding its dealings with Superintendent Thom Peck. During a special meeting on February 13, School Board President Reggie Foster went so far as to say to the crowd, āWe are the only ones with all of the information, and we are sharing what we are allowed to share.ā However, this statement is being challenged in a lawsuit filed last week by Jordan Hedberg (this author), alleging that the School Board, in fact, used an executive session during the February 11 School Board meeting to pressure Superintendent Thom Peck to resign but hid that fact from the public.
Executive sessions are meetings for elected officials that Colorado state law allows to be held outside of public view. Broadly speaking, Colorado voters have repeatedly stated in ballot elections that public business should be held in public. Known as the Colorado Sunshine Act, the Colorado Open Meeting Law was passed by ballot in 1972 and has been strengthened since that time. However, while the Colorado Open Meeting Law directs most public business to be discussed in public, the law makes three broad exceptions. The first is for an employee matter, as employees have certain rights to privacy regarding what is made public. The second is for receiving legal advice, as client-attorney privileges are protected communications. Lastly, a negotiation strategy for actions such as buying real estate or working on a contract. The Colorado Open Meeting Law makes clear that in executive sessions, a decision cannot be made by the elected officials to be rubberstamped in the public meeting.
During the February 11 meeting, the School Board entered an executive session to discuss the performance evaluation of Thom Peck. However, after the evaluation was finished, Board President Foster asked Peck if he would resign. Peck, surprised by this unexpected move by the board, said no. The board continued to pressure him to resign during the executive session and stated that if he did not resign, they would fire him at the next meeting.
As stated before, the School Board can vote to terminate Peckās contract at will, but such discussion must take place in public, a reality that the board has been avoiding because Peck has proven to be popular amongst most of the students, parents, staff, and the general public. Because the executive session was supposed to be about a performance review and not a negotiation to force Peck to resign, the board allegedly broke the Colorado Open Meeting Law, as actual negotiations cannot take place in these sessions, only negotiation strategy.
Further, the board in the meeting called Walt Cooper by phone to ask him questions about what could and could not be done in the executive session after Peck told them they had overstepped. Cooper is not the schoolās attorney and works for the firm that helped find and hire Peck for the position of Superintendent. For unknown reasons, Cooper has become intertwined with the School Board over the past year and, since this meeting, has now become acting Superintendent, with his wife taking over for the high school principal (these events will be detailed in a future Tribune article).
Before the executive session was concluded, Peck was asked to leave the meeting, and the board continued to talk among themselves, presumably on how to pressure Peck into resigning. The board, in meetings and statements afterward, claimed they had not asked Peck to resign, but the actions of the board have shown an increasing eagerness to try and force Peck to resign.
The lawsuit lists six counts of violations of the Colorado Open Meetings Law. Count one is that, āA local public body must announce to the public the particular matter it intends to discuss in an executive session in as much detail as possible without compromising the purpose for which the executive session is authorized. In the Announcement, the Board described the particular matter it intended to discuss in the Executive Session as simply, āto conduct the superintendent performance evaluation.ā In the Announcement, the Board failed to state that it would be negotiating a potential mutual termination of Pecksā employment contract in the Executive Session. In the Announcement, the Board failed to state that it would be discussing unilaterally terminating Peckās contract in the Executive Session. In the Announcement, the Board failed to state that it would be speaking with its search consultant regarding the Boardās legal right to undertake formal action in an executive session.ā
Count two of the lawsuit further states that the Open Meeting Law, āauthorizes a local public body to evaluate the performance of a superintendent in an executive session. However, the law does not authorize a local public body to negotiate with a contract adversary in an executive session and it does not authorize a local public body to contact a search consultant to discuss its legal right to undertake formal action in an executive session.
Count three continues to show that executive sessions are limited to key discussion points, āA local public body must limit its discussion in an executive session to one of the topics authorized by the Open Meeting Law.
No subsection of the law authorizes a local public body to negotiate with its contract adversary in an executive session. And no subsection of the law authorizes a local public body to confer with its search consultant about its legal rights under COML in an executive session.ā
The last two counts focus on the need to alert the public about what the purpose of the excutive sessions are and that they are not allowed to stray from what was discussed. āA local public body must refrain from adopting a position or formal action in an executive session. The Boardās action in the Executive Session in presenting itself to Peck as a willing participant to a mutual termination of Peckās employment contract constituted the adoption of a position and/or formal action. Consequently, the Boardās foregoing action in the Executive Session violated Colorado Open Meeting Law. Further, The topic of the executive session discussion memorialized in the minutes must include a description of the particular matter the board of education discussed in the executive session in as much detail as possible without compromising the purpose for which the executive session was authorized.ā
The School District has 21 days from the filing of the suit to respond to the courts.
The Tribune is not a party to this lawsuit, and this author has engaged in the lawsuit as a citizen of the county who was denied the right to see public business made in public and not in secret meetings.
For the full text of the lawsuit click here.
Jordan Hedberg