An independent investigation into a March 4 meeting between two Douglas County School District Board of Education members and a Ponderosa High School student is complete, with the investigator completely exonerating Meghann Silverthorn and Judith Reynolds from any wrong doing.
“Upon review of all facts made available to us, we have not found evidence that directors Silverthorn and Reynolds violated any express board or district policy in conducting the March 4, 2016, meeting with (Grace Davis) or in their subsequent conduct relevant to this investigation,” the report’s final summary reads.
The 45-page report was released by the school district on Monday after a month-long independent investigation by the law firm of Sherman & Howard. The firm looked into allegations the two board directors were in violation of the district’s handbook, state law, the district’s Code of Conduct, and even the First Amendment.
The district redacted Davis’ name to comply with the Family Educational Rights and Privacy Act, which prohibits the disclosure of personally identifiable information obtained from education records. Paula Hans, spokeswoman for the district said the district always tries to protect the privacy of their students.
However, Davis attended public meetings in which she called for two board members resignation and publicly discussed the case both at the meeting and in various media reports. She also published her private cell phone number on a press release and a petition. Therefore her name is a matter of public record.
The report also concluded that three members of the board, Anne-Marie Lemieux, Wendy Vogel, and David Ray have engaged in many of the same activities they attribute to malice on the parts of Silverthorn and Reynolds, attempted to infringe on the two directors’ First Amendment rights, and effectively censured the two women in the absence of a full investigation and without following the procedures outlined by the district’s Code of Conduct.
The report’s analysis was broken down by allegations and events as follows:
Leading up to the March 4 meeting
The report stated that Davis had agreed on at least two occasions to meet with Silverthorn, once during a meeting with Ponderosa Principal David Haggerty and once in an email conversation with Superintendent Liz Fagen, adding that while Davis’ engagement was commendable, it was not without consequence.
“In organizing a protest regarding teacher evaluation and retention, (Davis) entered into a heated public debate already occurring within the district community,” the report says. “…Leveling allegations against the district, its employees and elected officials, is very serious and doing so tends to elicit passionate responses from those affected,” the report says.
Additionally, Davis refused to meet with Fagen before the protest, and she told administrators that she believed a lot of students would use the protest as an excuse to ditch school rather than attend the protest. The report notes that Davis’ press release, which she used to announce the protest, explicitly encouraged students to “ditch class.”
The conduct of the March 4 meeting
Silverthorn and Reynolds did not violate any district policy during their March 4 meeting with Davis, the report found. The findings were broken into three distinct categories: the district’s paramount concern of ensuring safety for students, board members’ access to school grounds, and the content of the discussion, which also included several of its own bullet points.
“In the course of our investigation, we have been unable to locate an express policy, procedure or other legal authority that directors Silverthorn and Reynolds violated in conducting the meeting with (Davis),” the report said. Detailed findings included:
- Safety of the students is the district’s paramount concern. All parties agreed that the safety of students is a critical priority in Douglas County School District. The report notes that “(Davis) did not raise a concern about her personal safety being jeopardized by her meeting with directors Silverthorn and Reynolds. Only director Ray asserted that the directors jeopardized (Davis’) safety.”
- Board members have open access to school grounds
- Policy K1 “expressly includes board members within the limited class of individuals having open access to school within the district.” The report noted that directors Lemieux and Ray attended the March 9 protest and spoke with students on school grounds without prior notification of their parents.” Additionally, several directors reported during the investigation that they visit “schools on a frequent basis, interacting with students and participating in student groups.” The report said there was no policy that violated meeting with students on campus “whether in the open or in private.”
- Davis specifically requested that any meeting between her and Silverthorn take place at the school.
- Silverthorn and Reynolds checked in with Haggerty at the front office, and wore district-issued credentials identifying themselves.
- Haggerty voluntarily offered an empty office in which the meeting could take place.
- There are no district policies that require the school to notify parents in advance of a meeting unless law enforcement is involved and the student may incriminate themselves. Grace Davis, whom the report points out is a mature, articulate and bright student, did not inform her parents of the meeting despite the fact that she agreed to it the previous day.
- In regard to the content of the discussion between Silvethorn, Reynolds, and Davis, the report found there was no evidence suggesting Silverthorn or Reynolds harassed, discriminated against, bullied, intimidated, used political overtones, conducted themselves inappropriately, or violated First Amendment rights.
Ray encouraged the bullying narrative in an email to Davis on March 5 in which he told her “The fact that you felt intimidated by a second unannounced adult showing up and their intimidating message are absolute violations of every anti-bullying policy.” Ray was referring to Reynolds attending the meeting with Silverthorn without Davis knowing she was attending.
The report pointed out that both Reynolds and Silverthorn had to clear background checks to perform their duties as board of education members, which includes access to all schools and students.
However, the report said Davis’ feelings that she was bullied were subjective while the district’s policy outlines clearly that bullying is defined as conduct that creates a hostile learning environment or interferes with the victim’s educational performance, none of which Davis alleged. “Moreover in our discussions with all of those who attended the March 4 meeting as well as those who have listened to the recording of the meeting, no one has asserted that Davis showed any outward or objective sign of being intimidated. Even those who opposed the meeting expressed the observation that Davis remained poised and articulate throughout the meeting,” the report reads.
The report also addressed the possibility of sanctioning a board member for making incorrect comments. The findings were in reference to a comment made by Silverthorn about an angry motorist at an unrelated protest in a different district that were later proven to be wrong.
Doug Benevento told investigators that if there was a board policy prohibiting mistaken comments, all board members would be subject to sanction. The report agreed.
“People have a First Amendment right to be wrong,” the report said. “Before the board sanctions a director for speaking, the board has to determine the facts and be certain that the board member is speaking for the board collectively and not individually. Regulating board members’ individual speech would have potential legal ramifications involving the director’s First Amendment rights.”
Further, the report said the investigation revealed a practice and understanding among directors that when “meeting or conferring in groups of two or less, directors were not purporting to speak for the board,” the report reads in part “… Directors Ray and Lemieux similarly state that in attending the protest they were acting in their official capacities as board members but were not speaking for the board.”
The report also discussed First Amendment issues. It noted that while students do not shed their First Amendment rights when they step on school grounds, “schools are allowed to regulate student speech that may disrupt school activities or invade the rights of others,” he said. “… At the time of the meeting, (Davis) was organizing a protest on campus during school hours. (Davis) had widely publicized the protest, thereby creating the possibility that members of the public, unaffiliated with the school, would attend in violation of school policies regarding school visitation and traffic on campus. (Davis) had encouraged students at (Ponderosa High School) and elsewhere to ‘ditch’ the entire day of class, also a violation of district policy.”
The report said had a safety incident occurred during the protest, public attention likely would have focused on whether the board adequately determined the scope of the protest before allowing it.
Concerning political overtones, the report said Davis invited the political discussion by copying or linking to materials from the Douglas County Parents (DCP) website. DCP is an activist group formed to fight the board’s conservative majority, which includes Silverthorn and Reynolds.
“In several interviews, (Davis) mentioned a woman who was a founder of DCP, as assisting her in various respects,” the report said. “After the protest, DCP has been active in supporting (Davis) and the call for resignations of directors Silverthorn and Reynolds.
Conduct after the March 11 meeting
The report found that Silverthorn was not alone in her choice to speak to the media and had a right to do so. “Director Silverthorn was one of several people we interviewed who provided comments to the media, including director Lemieux and (Davis) herself,” the report reads. “We have not found a policy prohibiting board communications to the press. … If the board were to determine to regulate such communications, it would need to assess the associated First Amendment implications on board members.”
Conduct of board minority members during and following the April 19
The report also discussed the public shaming of Silverthorn and Reynolds at the April 19 meeting, which occurred before an investigation had been conducted. DCP propagated an email campaign that supplied a form letter demanding the resignations of Silverthorn and Reynolds. Directors Vogel and Lemieux orchestrated a public call for resignations, and Lemieux shared information with Colorado Public Radio before the investigation was completed, outlining alleged policy violations not yet found factual.
The report says that Code of Conduct section 18.104.22.168 says issues with other board members can only be brought by other board members, not by the public, and that they will be brought before the entire board.
Although the report concludes that Lemieux and Vogel’s call for resignations in public were also in violation of that policy, the policy itself may be in violation of state law. Colorado Open Meetings Law expressly says executive sessions discussing an elected official are prohibited.
Additionally, a June 17 post by Lemieux to her Facebook page stated that “any disciplinary questions will be discussed in executive session per board policy.” When contacted over the weekend, Lemieux thanked Complete Colorado for sending her a copy of the state statute and clarified her statement.
“There will be no discussion in or out of Executive Session on June 21st that I am aware of,” Lemieux said by email on June 19.
The report concluded by saying the board needs to consider several things as it moves forward after the investigation—especially if it considers disciplinary actions against Silverthorn or Reynolds.
“The code of conduct allows a public censure where a substantial violation is found by the board,” the report reads. “The code of conduct thus implicitly contemplates an investigation into whether a substantial violation occurred. The conduct of the April 19 board meeting thus takes on additional significance because, if the board finds any substantial violation of its policy after a review of this report it should consider whether public censure has already occurred.”
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