Ignorance is bliss……such is the philosophy of anyone working with ISD 709. Tell the truth about the fire sale of Central High and you might be censured. Among the many things I was forbidden to talk about are the fiscal implications for our District from a tar baby court case. Art Johnston’s attorneys advised our school district attorneys of the implications for their case proceeding but, of course, we were told not to share the letter with the public. Well, Art just sent all the media, with the possible exception of the Duluth News Tribune, the letter we board members were sent many weeks ago. I’ll share a couple paragraphs with you since they are now out in the open. BTW – I am a lousy typist and there is lots of punctuation and court case names that would slow me down so I’ll just put in the highlights. I don’t have a copy of the text that I can simply copy by way of my computer. BTW 2- as attorneys are forbidden to contact the opposite legal party (our school board) this letter was sent to our attorneys Rupp, Anderson, Squires & Waldspurger P.A.:
We write to make sure the Duluth School District and its Board of Education are aware of the risks and potential financial exposure the District will face should you proceed with the attempt to remove Art Johnston from the Board.
The Board’s resolution proposes Mr. Johnston’s removal based on various “comments” he made. An attempted removal based on comments would blatantly violate the First Amendment. Moreover, the “Code of Ethics” underlying the proposed removal is unconstitutional on its face and as applied. As for the resolution’s cited objectionable “conduct,” e.G. Mr. Johnston’s June 4, 2014 interactions with Superintendent Gronseth and Board Chair Miernicki, the conduct alleged falls far short of the malfeasance or nonfeasance the Minnesota Constitution requires before a School Board may remove a member.
Mr. Johnston had the right, indeed, the obligation, to say exactly what the Board resolution claims he had no right to say. He is prepared to protect and vindicate his right to speak. Upon vindication of this rights, he will seek to recover his attorney’s fees and costs. There are better uses for School District resources than paying for litigation.
…The Code of Ethics is unconstitutional on its face and as applied. A federal court will enjoin its enforcement under 42 U.S.C. SSS 1983, with attorney’s fees and costs awarded under SSS 1988. [Republican Party v White is cited along with the court award to the aggrieved party of $1.37 million for prevailing-party attorney fees)
In particular, the Code's fourth paragraph, which directs School Board members to "[r]efrain from disparaging remarks about other board members,” chills constitutionally protected expression…
…The resolution goes on to propose Mr. Johnston’s removal under the Code of Ethics based on his alleged “behavior.”…But the behavior” described is not behavior at all. It consists of “accusations,” “criticism,” and “claims”-in other words, constitutionally protected expression….
…As the Supreme Court held in White while invalidating the Minnesota Rule prohibiting judicial candidates from announcing views: “The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance….Mr. Johnston is no exception.
I hate typing from text so I’ll end here although the letter goes on to annihilate many of the District’s other charges against Art.
This is just the tip of the ice berg. I printed out 25 other pages a couple days ago from Art’s attorneys addressed to the Federal Courts and Art just sent me a much longer 67 page document. I don’t have any time at the moment to read through it but it helps explain why Art legal costs are already about three times what he makes from his annual school board service. If Art’s attorney’s are right the court will likely force the District to pay them all and Art’s costs will soon skyrocket.
NOTE: one of my chief irritations with the legal system is the power to intimidate people who do not have the resources to hire attorneys. Our board’s unlimited access to our tax money to pursue this indefensible court case is all it needs to bulldoze Art……if only he didn’t have such a powerful case. I am sure Attorney Rupp counted on Art to cower in the face of insurmountable legal bills. That’s what happened to a very young school board member I met in St. Paul last week. His is an interesting story I’d love to tell if the School Board would just stop shoveling so many blog worthy anecdotes my way. Right now Art Johnston is on his way out of state to advise a Department of Transportation on bridge building to help pay for these immoral expenses forced down his throat by our school board majority’s vendetta.
BTW – I’ve made many disparaging remarks about the District’s attorney, Kevin Rupp, and hinted that his firm has a huge financial conflict of interest in pursuing the case against Art. Things have changed since I started this post yesterday. Art has learned that Rupp’s firm has given way to the District’s other legal firm Ratwik to represent the District. I believe this is strong evidence that I’ve been right all along. Nonetheless, the Ratwik firm will be happy to represent us. They will get paid even if they are pushing a losing case and God knows how much it will cost. The White case referred to by Art’s attorneys cost $1.37 million and that was twenty years ago. Twin City’s lawyers charge even more today. A case going to the US Supreme Court could take years.
Art’s attorneys who know something about legal malpractice cases (one having defended Kevin Rupp in legal malpractice case) suspect that the District’s insurance company that will be saddled with much of any pending claims may have taken over control of the case. Its quite possible that they dumped Rupp for Ratwik to avoid charges of legal malpractice. Its just a theory but it sounds plausible to me.
I, of course, would know nothing about any of this. I am only a Duluth School Board member. I’m told nothing. I didn’t know we’d changed law firms. I’m sure Chair Judy Seliga-Punyko and Clerk Rosie Loeffler-Kemp know what’s going on and possibly the other board members who are named in Member Johnston’s suit. How one school board can find itself so at odds with its own members so regularly is beyond me. Gary Glass was the first and Judy Seliga-Punyko had a hand in that mess as well. How ironic it is that she is such a big proponent of looking on the sunny side.
One other thing has occurred to me and I might as well mention it here. A new school board might decide to cut its losses and scrap this harebrained suit to undermine the First Amendment. I think voters might cotton to any candidate who would promise to jettison the courts and start paying attention to our schools. Unless and until a change in our Board permits it our legal costs will continue to soar while our graduation rates continue to plummet.