A Pagosa Springs lawyer has filed a lawsuit against the Montezuma-Cortez School District, seeking to invalidate the board’s separation agreement with ousted Superintendent Risha VanderWey and to bar the board from taking formal action without legal public notice.
The legal complaint was filed about a month after the RE-1 Board of Education placed VanderWey on administrative leave. VanderWey was given the choice to resign or be fired, a decision made without a public discussion and likely in violation of Colorado’s Sunshine Law.
“My jaw sort of dropped, like, ‘Wait a minute, what’s going on here? This whole process is so shrouded in secrecy, there’s got to be more to it,’” lawyer Matthew Roane told The Journal.
The Journal reported March 15 that board President Sheri Noyes acted alone in asking VanderWey for her resignation during a Jan. 18 executive session. It was unclear whether the board reached a consensus to support Noyes’ request. At least one board member, Cody Wells, said he knew of no prior decision.
Noyes announced Jan. 24 that VanderWey had been placed on administrative leave Jan. 21, and a news release Jan. 29 announced VanderWey’s official resignation, also effective Jan. 21 – six days after she received low marks on a performance evaluation. She held the job less than seven months.
The Journal learned about the school board’s decision-making process after examining more than 100 emails and messages it obtained through a Colorado Open Records Act request.
About the same time, Roane requested a recording of the Jan. 18 executive session held to discuss the school board’s evaluations of VanderWey.
Timeline: Roane’s Colorado Open Records Act requests
Roane’s first request on Feb. 8:
“1. Recording of the Board of Education’s executive session held on 1/18/22;
2. Portion of the meeting of the Board of Education’s executive session held on 1/18/22 memorializing formal action and/or the undertaking of a position; and
3. Copy of notice and agenda for meeting where Board of Education decided to place the former superintendent VanderWey on administrative leave.”
District response:
“Items 1 and 2 on your request are not public accessible records. With that said, I can inform you the minutes of the 1/18/2022 meeting clearly reflect compliance with the Open Meetings Law and C.R.S. 22-32-108 (d), reflecting the proper motion to convene into executive session, including the topic of discussion at the executive session as well as the amount of time the topic was discussed while in executive session. Those meeting minutes will be approved at the Feb. 22nd, 2022, meeting and available on our website on 2/23/2022.”
The recording of this executive session was inadvertently and unintentionally not recorded.
Item 3 on your request can be satisfied with this statement from School Board President Sheri Noyes:
Dr. VanderWey was officially placed on paid administrative leave on Friday, January 21st, 2022, per the recommendation of the District’s attorney while the details and negotiations of her separation and payout were being finalized. The board implemented Section 10 of Dr. VanderWey’s contract, Suspension of the Superintendent. Dr. VanderWey was given her notice, in writing, effective January 21st, 2022, stating the reasons why she was placed on paid administrative leave. There was no need to call for a formal meeting, therefore there are no minutes.”
Roane’s second request on Feb. 9:
“1. Copy of the written notice the Board of Education served upon former Superintendent VanderWey informing her of her placement upon administrative leave.”
District response:
The letter was attached.
Roane’s third request on Feb. 14:
“1. Dr. Risha VanderWey’s employment contract with the school district/board of education.
2. Any separation/payout agreement the school district/ board of education entered into with Dr. Risha VanderWey.
3. A copy of the recording of the executive session held by the Board of Education on February 8, 2022.”
District response:
The employment contract and separation agreement were attached, and the district said the executive session was “not required for public viewing.”
Roane’s fourth request on Feb. 16:
“1. Copy of recording, agenda, and minutes for meeting where Board of Education decided to terminate Dr. VanderWey’s employment as superintendent.”
District response:
“There was no meeting held to terminate Dr. VanderWey; she resigned.”
Roane’s fifth request on Feb. 17:
“1. Copy of recording, agenda, and minutes for meeting where Board of Education decided to enter into contract entitled ”Separation Agreement” with Dr. Risha VanderWey.
District response:
“The separation agreement hasn’t been held at a meeting. Feb. 11th there was a board meeting to accept the Resignation. Those minutes get approved tonight + will be on our website tomorrow.”
Roane was told the district did not record the executive session “inadvertently and unintentionally” in a response to his CORA request. Under Colorado Open Meetings Law, governing bodies must record executive sessions, excluding any portion that involves privileged attorney-client information.
To exercise their right not to record, boards must announce they are receiving legal advice on specific legal questions from their attorney, who must be present, said Steven Zansberg, First Amendment and media lawyer and president of the Colorado Freedom of Information Coalition.
“It’s the board’s obligation to make sure it’s recorded,” he said.
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.
A “personnel matter” does not warrant attorney-client privilege, Roane said, especially given that VanderWey took part in the meeting.
Colorado law prohibits public bodies from making decisions during an executive session. The public has the right to inspect executive session recordings with the consent of the governing body or a judge’s ruling.
Roane decided to investigate.
“It was just an onion; the more I peeled back the layers, the more it smelled,” he said.
In his formal complaint, Roane argues that the board took formal action by placing VanderWey on paid leave and by later executing a separation agreement with her without public notice.
Roane requested public notices of the meeting in which the decision was made to place VanderWey on leave and of the meeting in which the board signed the separation agreement.
In a statement to Roane, Noyes said there was “no need to call for a formal meeting” to place VanderWey on paid administrative leave.
Roane then requested the written notice from the board informing VanderWey of her administrative leave.
That letter, signed by Noyes, informed VanderWey it was in the “district’s best interest” to place her on administrative leave while the details of her separation and payout were being finalized.
The district did not provide that letter to The Journal, which requested all the board’s electronic and written communications in January that discussed VanderWey.
Roane also asked for the copy of the recording, agenda and minutes for the meeting in which the board decided to terminate VanderWey’s employment. In its response, the district said there was no such meeting.
The Journal later discovered that Noyes asked the board to vote on the terms of VanderWey’s separation agreement during a “daisy chain” discussion out of public view. 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.
A judge in Colorado clarified the law surrounding daisy chain communications March 9, ordering the Douglas County school board to comply with the law and holding that its series of one-on-one meetings violated the “spirit” and “purpose” of the statute. In that case, four board members met privately one-on-one to discuss replacing former Superintendent Corey Wise, who was fired in February.
“I suspect it’s a much bigger problem than we can all tell,” Roane said, adding, “I’m glad this thing is working its way through the court.”
VanderWey’s separation agreement with the district, signed Jan. 27, provided her a severance payment of $54,597.70 and a release of claims for both parties.
Because such a contract warrants public notice and discussion, Roane believes it may be null and void.
“There’s a lot of things you kind of can do in private,” Roane said. “But spending public money is kind of one of the big no-nos right out of the gate.”
“(There are no) ‘gotcha!’ moments here, we’re just trying to have people comply with the law,” he said.
Roane monitors government bodies and challenges what he believes to be open records law violations.
“My hope is if they go back and start the process over, they’ll be open with people in Cortez and in the area, and give them some idea about what’s really going on,” Roane said.
Miller Farmer Law, a firm recently hired by the school district, informed Roane on Thursday that it was the new litigation counsel for the district.
Roane had sent a settlement offer to the school district’s previous law firm, Caplan & Earnest of Boulder, which responded that it preferred to avoid litigation. Roane said he expects a response after the board’s April meeting.
Caplan & Earnest did not respond to The Journal’s request for comment.
Roane’s complaint seeks:
- A judgment that the school board violated the open meetings law.
- A judgment enjoining the board to comply with the open meetings law by recording executive sessions.
- A judgment enjoining the school board from taking formal action without full and timely notice to the public.
- A judgment invalidating the board’s action to place VanderWey on administrative leave.
- A judgment invalidating the school district’s participation in the separation agreement with VanderWey.
- Attorney’s fees.
