A Denver Public Schools attorney has issued a legal opinion declaring votes cast during Monday’s combative board meeting valid and describing an effort to delay the decisions as a “political ploy.”
John Kechriotis said cases cited in a letter by newly elected board member Andrea Merida’s attorney, who questioned the board’s authority to act Monday, are “completely inapplicable.”
“My only reasonable conclusion is that Mr. Grueskin’s letter … was not intended as a true legal opinion to Ms. Merida,” Kechriotis wrote. “Rather, such misinterpretation and misrepresentation of the Achenbach and Uzzell case holdings without reference to the controlling Colorado law on this issue was intended as a political prop.”
School board members, meanwhile, prepared for a morning session Thursday with a Denver therapist in an effort to improve battered relations between members and with Superintendent Tom Boasberg.
“I think that we need somebody outside, somebody neutral, to guide the conversation so it doesn’t degenerate into finger-pointing and ickiness, for lack of a better word,” said board member Jeanne Kaplan, who proposed the idea several weeks ago.
Then, emotions among board members were high as a result of an election in which some board members backed the opponents of other members. Monday’s dramatic meeting didn’t help the tension.
That’s when Merida stunned many by declining to wait until after the meeting to be sworn into office as scheduled. Instead, she took her oath before noon so that she could vote on a contentious reform plan at Lake Middle School in northwest Denver.
The result was an angry confrontation between Merida and board member Michelle Moss, who helped elect Merida and who walked into the 4:30 p.m. meeting expecting to vote in the last meeting of her eight-year term.
Disagreement on “lame ducks”
Grueskin and Kechriotis agree that Merida’s action was legal. While new board members have traditionally been sworn in together at an appointed time, state statute allowed Merida to take the oath anytime after last month’s election results were certified Nov. 19.
But they disagree on whether a board that includes outgoing or “lame duck” members should cast votes while new members wait to be sworn in. Merida and two other new members – Mary Seawell and Nate Easley – were slated to take their oaths of office at 7 p.m. Monday.
“What if lame duck senators and representatives, on the first day of a legislative session, held hearings and voted on bills, making their successors wait for hours to get sworn in and begin fulfilling their duties? ” Grueskin said Tuesday in response to Kechriotis’ opinion.
“I’m not aware of public entities that operate that way or courts that have endorsed that scenario,” he said. “Typically, there’s no artificial delay in administering the oath of office to newly elected officials.”
Grueskin cited two Colorado cases – one involving county commissioners from 1906 and one involving the Brush school board from 1971 – in his letter to Merida to support his position.
In particular, he says the school board case, titled Achenbach v. School District No. RE-2, shows an “old board” cannot act on policy matters during its “lame duck” period.
Kechriotis said the newly elected Easley and Seawell could have done what Merida did and been sworn in earlier as board members. Instead, they waited until after the meeting.
As for Achenbach, he said the case dealt not with the election of some new board members but with the complete elimination of a school district, and its board, under the School District Reorganization Act of 1957.
‘A complete waste of time’
“That school district literally ceased to exist as of June 30, 1965 and it is within that context that the Court references the ‘lame duck’ period of time,” Kechriotis wrote in his opinion.
Similarly, the 1906 case dealt with the elimination of a county, he said, and “here there is no elimination … the District No. 1 in the City and County of Denver continues in existence.”
School board member Arturo Jimenez sought a delay in Monday’s meeting based on Grueskin’s letter, dated the same day, citing concerns that votes cast might be rendered invalid.
“It may be that it has no effect,” Jimenez said during Monday’s meeting. “It may be that somebody wants to go to court and make an issue out of it.”
But Kechriotis said the “misinterpretation” of the cases led him to believe it was “a political prop” intended to delay board votes on the controversial reform proposal, which ultimately passed 4-3.
“The drafting of a legal memorandum in response to such a transparent political ploy has been a complete waste of time and taxpayer money,” he wrote, “time and money which should have been utilized toward advancing student achievement.”
For his part, Grueskin, a prominent Denver attorney and a registered lobbyist for the Colorado Education Association and other unions, declined to say who was paying his bill.
“I don’t address that publicly during my representation of any client, including those who I represent on a pro bono basis,” he said.
Merida could not be reached for comment Tuesday. As of Oct. 30, the most recent campaign finance deadline, 79 percent of the contributions to her campaign came from unions, largely the Denver Classroom Teachers Association.
She and other board members will meet Thursday at the Broadmoor Hotel in Colorado Springs, where the Colorado Association of School Boards is having its annual conference.
Conflict resolution for board
Their day begins with a closed-door session with therapist Susan Heitler, who specializes in conflict resolution and marital counseling. The group meeting will cost $2,400 to be paid out of the board’s budget, according to DPS communications director Mike Vaughn.
Vaughn said the meeting is a personnel matter focused on how board members and Boasberg can have a strong working relationship so it can be legally closed to the public.
Kaplan, who frequently touts transparency, said privacy is needed in this case.
“We’re trying to build trust and given the things that have happened, I think that trust has to be built at this particular moment just among ourselves,” she said.
At least some, if not all, board members have met individually with Heitler prior to Thursday’s session.
“I have to be honest with you, I’m not a real fan of going to counseling,” said Easley, who was elected board president on Monday. “I pictured the person sitting in a chair and I’m lying on a couch, telling her what my mom did to me – which would be hard to connect with my experience as a board meeting.”
But he said, “after my meeting, I came out on Cloud 9, really invigorated, thinking this is someone I would love to help me through this healing.”
Both Kaplan and Easley said they are optimistic the board can come together.
“My own philosophy is, hey guys, I need you, we need each other, so how can we do this as a team – realizing we’re not always going to agree?” Easley said. “There’s not a person on this board who’s not doing what they think is right.”
Nancy Mitchell can be reached at firstname.lastname@example.org or 303-478-4573.
Click here to read attorney Mark Grueskin’s letter to Andrea Merida.
Click here to read DPS attorney John Kechriotis’ response to the legal issues raised by Grueskin.
Click here to read the Achenbach v. School District No. RE-2 decision cited in Grueskin’s letter and DPS’ response.