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Judge considering request to cancel votes firing Vandeven

Judge considering request to cancel votes firing Vandeven

February 14th, 2018 by Bob Watson in News

Cole County Senior Judge Richard Callahan issued no ruling Tuesday, after spending six hours hearing evidence in a case accusing the State Board of Education of violating Missouri's Sunshine Law for the two meetings last year where the board voted on motions to fire then-Education Commissioner Margie Vandeven.

He gave lawyers for both sides until next Tuesday to file additional arguments in the case.

Columbia attorney Duane Martin, representing Springfield teacher Laurie Sullivan, filed an amended lawsuit last month, asking the court to void the actions taken during State Board meetings Nov. 21 and Dec. 1, arguing "the State Board knowingly and/or purposefully violated" the state's Open Meetings/Open Records law when it held the two closed meetings, and therefore, all business discussed during the two meetings should be void.

The lawsuit argues the State Board didn't follow the law when it allowed discussions in the two closed sessions that had not been announced ahead of time, and when it took votes to remove people from the closed session, when those votes should have occurred in an open session.

There was a 4-4 tie vote during the Nov. 21 meeting, so Vandeven kept her job until the Dec. 1 meeting — and the attorney general's office argued the Nov. 21 meeting shouldn't be an issue.

However, Martin countered there were law violations in the way the Nov. 21 meeting was conducted, and they can't be ignored — including a closed session discussion about which one of three people Greitens named to represent Southwest Missouri should have the right to vote.

The state said the governor has the power to change temporary appointees who haven't been confirmed by the state Senate.

A separate lawsuit currently pending before Circuit Judge Pat Joyce challenges that defense.

At the Dec. 1 closed meeting, Martin argued, board members talked about things that should have been discussed in an open session, including:

  • Aggregate student test scores.
  • Deferring the decision regarding Vandeven's removal to a later time.
  • Questions about students with dyslexia.
  • Comments about the "Top 10 by 20" effort, which was a former strategic priority for the board.
  • Fourth-graders' reading proficiency.
  • The "culture" within the Department of Elementary and Secondary Education and its employees.

However, State Board President Charlie Shields and member Victor Lenz testified those issues were raised by the five Greitens appointees, when they were asked to explain why they felt Vandeven should be terminated.

Jones, of St. Louis, is the current board's longest-serving member.

He testified he thought none of the complaints about Vandeven and her job "made a lot of sense."

If those votes didn't happen legally, then Vandeven still would have her job.

At the end of Tuesday's hearing, Callahan asked how he could order the board "to reinstate someone I have no control over?"

Shields, Lenz and member Mike Jones, all testified Vandeven had done a good job as commissioner and would do a good job if she returned to the job.

All three also noted the State Board has no power to take any actions, because they're the only three active members of the eight-member board — and there must be at least five members to take any actions.

Gov. Eric Greitens last year named 10 different people to serve on the board, to fill five positions where the members' terms had expired.

When those appointments are made while the Legislature isn't in session — as was the case with the State Board — state law allows the temporary appointees to begin serving and make votes.

However, those appointees must be confirmed by the state Senate within 30 days of the beginning of the legislative session.

For people appointed to a board or commission while lawmakers are meeting in their regular session, they must wait for the Senate's approval before they can join the board.

When this year's General Assembly began Jan. 3, Greitens withdrew the five temporary appointees — who had voted a month earlier to fire Vandeven — then reappointed them.

The move left only three State Board members, rendering the board powerless to meet — and leaving Roger Dorson as the Department of Elementary and Secondary Education's interim commissioner.

He was appointed to that job Dec. 1, after the board's 5-3 vote firing Vandeven.

Robin Barbour, the State Board's executive assistant and a 36-year DESE employee, testified Tuesday that changes at the top can be "very chaotic at times," including the most recent transition from Vandeven to Dorson.

DESE Communications Director Sarah Potter testified the department and the State Board do more than the law requires when notifying the public about upcoming meetings, including sending emails to the media and education groups, and posting the meeting agendas online, with links to most parts of the agenda.

However, she acknowledged, the detailed information about any planned closed sessions is posted only on the official notice posted outside the board's first-floor meeting room and sixth-floor main offices in the Jefferson State Office Building.

Still, Assistant Attorney General Cheryl Ann Schuetze told Callahan, Martin didn't make his case for getting the injunction — and the judge should deny that request.