TRSU boards apparently kept in dark about suits

By Shawn Cunningham
© 2019 Telegraph Publishing LLC

The overspending of a line item for legal expenses by nearly 500 percent led to the revelation by The Chester Telegraph Thursday night that the Two Rivers Supervisory Union is facing at least two lawsuits that virtually no board members of Green Mountain Unified School District nor the TRSU  – past and present – had been told about.

Windsor County Superior Court records show that the supervisory union is being sued for disability discrimination by a long-time employee who was fired by Superintendent Meg Powden. In addition, the SU and Ludlow Elementary School are defendants in a case involving a special needs student whose lower lip was, according to the suit, nearly torn off by a 160-pound dog that was allowed into the school during a 2013 summer session. The complaint was filed in June 2017.

Powden joined the school system in July 2016.

The Telegraph asked Powden about the suits during the public comment portion of special GMUSD board meeting at the high school, called last Thursday to answer an Open Meeting Law complaint.

In January, when the higher-than-budgeted legal expenses came up at a TRSU board meeting, Business Manager Cheryl Hammond said that contract negotiations with staff had driven the numbers up and, with those negotiations coming to an end, the number should flatten out. Legal expenses were budgeted for $6,000 and, in the first half of the fiscal year, they totaled more than $16,000.

But the third-quarter saw another jump of $13,454 and, as of June 12, the SU has spent a total $34,811 on legal expenses. At the June 13 special meeting, The Telegraph asked Powden for a rough comparison of negotiation expense with defense against lawsuits the paper had found working their way through the court.

“My understanding is it was mostly negotiations,” answered Powden.

May I ask what the litigation is for?” asked board member Doug McBride.

“I don’t know what Shawn’s referring to actually,” said Powden, addressing The Telegraph‘s question.

Directing his question to Powden, board member Michael Studin asked, “Are you aware of any litigation?”

“I am,” said Powden.

“Are you aware of more than two?” asked board vice chair Deb Brown.

“No,” said Powden.

“Could you tell us about the litigation you are aware of?” asked McBride.

“No, I wouldn’t tell you about it in public session,” said Powden.

“Why haven’t we heard about it before either in executive session or public session?” asked Studin.

“It’s a TRSU matter,” said Powden.

Referring to the funds expended to date, McBride noted that TRSU has no money of its own and only gets money from its school districts – Green Mountain and Ludlow-Mt. Holly. He told Powden that if it doesn’t have an effect on the GM budget, that’s fine, but if it does, then the lawsuits become an issue for the GM board.

“I have to look at the breakdown, I really don’t know…” Powden responded.

“But how would you pay for it?” asked McBride.

“No, it will affect, I mean both districts pay into the TRSU budget,” she said.

“So we’re going to pay for it, but you’re not going to tell us about it because it’s TRSU?” asked McBride.

“I see what you’re saying and I’m not going to discuss it in public session because it’s a legal matter,” she said.

But McBride pushed, “Why didn’t we know about it before?”

“OK, I don’t have an answer for you for that at this point,” Powden said.

“Is it something we should lose sleep over?” asked McBride.

“No,” said Powden.

Board members asked board chair Joe Fromberger if they could schedule a session to talk about the suits for the board’s regular meeting on June 20.

Who on the board knew about the suits?

I think from my own understanding the TRSU board had not been read in on the pending litigation,” said Fromberger. “At least I don’t know and I’m on that board,” he said referring to his own membership on the TRSU governance panel.

“I don’t know how to tell you what I don’t know. The next TRSU meeting will very likely have a discussion of that,” he said. The TRSU board is taking July off and its next meeting will be on Aug. 1.

Marilyn Mahusky, who was  chair of the TRSU board from February 2018 to March 2019, told The Telegraph on Friday morning that she had no knowledge of either lawsuit. Alison DesLauriers, who was the chair of the GMUSD and TRSU boards prior to Mahusky, told The Telegraph on Sunday that she had no recollection of the dog bite incident or of being made aware of that lawsuit. The discrimination lawsuit was filed after DesLauriers had left the board.

Bob Herbst, who was co-chair with DesLauriers of the pre-merger full TRSU board and chair of the TRSU executive committee, told The Telegraph on Sunday that he had no knowledge of any lawsuits.

Also on Sunday, current TRSU chair Paul Orzechowski, told The Telegraph by email that he is aware of the discrimination suit but not of the other. In a subsequent email, The Telegraph asked Orzechowski when and under what circumstances he learned about the discrimination suit. As of Wednesday morning, Orzechowski has not responded.

At the June 13 meeting, Powden said she would put an executive session on the June 20 GMUSD agenda to discuss the suits and consult a lawyer for the proper motions for the session. She also said that the budget discussion regarding the suits would happen in the public portion of that meeting.

But an agenda posted on the TRSU website on Friday June 14 — and sent to board members as well as The Telegraph — shows an executive session for only one of the lawsuits and the promised discussion of the budgetary impact of the suits is missing altogether.

The two known lawsuits

The second suit, filed last June by Deborah Carleton of Londonderry, claims that Powden was annoyed by Carleton’s hearing disability and assigned her new tasks in addition to her regular duties in an effort to set her up to fail and force her out.

Carleton worked as an administrative assistant for seven years under four other superintendents when the TRSU consisted of 11 separate school districts and 11 separate boards. In addition to coordinating the meetings of those boards, Carleton also worked on the intensive Act 46 merger process.

According to the complaint, Carleton was able to perform the duties of the job with reasonable accommodations for her hearing disability. She alleges that Powden’s behavior violated the Vermont’s Fair Employment Practices Act.

The earlier suit involves an 8-year-old special needs student enrolled in a summer program at Ludlow Elementary. According to the complaint, the school was closed except for members of the administration and a special educator working with the child.

The complaint goes on to say that a para-educator was allowed to enter the school with his 160-pound mastiff and to visit the room where the child and special educator were working. After a period of calm in which the child was petting the dog, the animal turned and bit the child, tearing a portion of the child’s lower lip nearly off, the suit contends.

According to the complaint, the bite led to complications that worsened the conditions for which the child was receiving services from the school. The complaint also alleges that the school was unsympathetic to the traumatic injury and “consistently denied” attempts to make alternative arrangements for the child’s education.

Legal expenses for SU, school districts higher than budgeted

On Monday, June 17, The Telegraph filed a Public Records Act request for the 2018/2019 fiscal year’s legal bills.  And, according to the copies received, Powden is technically correct in saying that the spending from the Supervisory Union’s Legal line is mainly from contract negotiations with teachers. In fact, the total spending on negotiations in this fiscal year according to the invoices provided by TRSU was $50,383.04.

Negotiation expenses, according to the invoices, were routinely split equally among TRSU, GMUSD and LMHUUSD budgets. As mentioned above, the TRSU legal budget line is heavily overspent. Likewise, GMUSD budgeted $15,000 for legal expenses but by March 31, 2019, had overspent by 78 percent or $11,862.40 — for a total of $26,862.40 — with three months left to go in the year.

The Ludlow Mount Holly budget has no legal expense line, but it does have a “purchased services” line in about the same spot in the budget as the other legal lines. That line was budgeted for $6,600 and, by the end of January 2019, it had been overspent by 152.92 percent or $10,092.45 for a total of $16,692.45 with five months left to go.

The three-way split is relatively meaningless though, as all of TRSU’s money comes from the two school districts that comprise the supervisory union and they end up paying the SU’s share anyway. One question for the board is how the SU is paying for the overages until it can assess them to the schools.

How much is insurance paying?

As for the spending on lawsuits, the picture is murkier. It appears from the invoices that VSBIT — the Vermont School Board Insurance Trust — is paying the legal expenses above a $5,000 deductible for each claim using “errors and omissions” coverage. What’s curious though is that there are three, not two claim numbers on which deductibles have been added up, so it seems that there may be yet another claim or even lawsuit out there unknown to the boards.

It is possible that this third case is an arbitration for which one of the SU’s law firms billed more than $2,500 to prepare former GM Principal Tom Ferenc’s testimony  for an unknown hearing on Dec. 20, 2018. A member of the firm then traveled to Chester for the hearing and returned home to Burlington, incurring 12.3 billable hours amounting to a one day charge of $2,767.50.

If the arbitration is the third case, Powden could be technically correct – but not entirely transparent since arbitration is a legal matter – in telling Studin that she was only aware of litigation in two cases.

It’s clear from looking at court records that the proceedings in the two suits mentioned above are active and that substantial money is being spent on them. How much money is unclear. Since the supervisory union does not appear to account for a bill that is received by the SU, then forwarded to the insurer for payment, it is impossible to know for now.

The Green Mountain Unified School District’s next meeting will be held at 6 p.m. on Thursday June 20, 2019 in the art room at Cavendish Town Elementary School, 573 Main St., Proctorsville.