- John McNeill (Landrum & Shouse) representing Fayette County Public Schools, moved to dismiss the amended complaint filed against school board attorney Brenda Allen.
- McNeil also moved to dismiss the board from an abuse of process claim.
- Dale Golden (Golden & Walters) representing Peggy Petrilli filed a detailed response.
- McNeil filed a reply.
- The issues were argued before the judge Friday.
Golden told KSN&C,
"Most of the argument centered around the premise, put forth by opposing counsel, that [Silberman] was under an obligation...to create that report."
"They're trying to get out from under a defamation claim I raised in my complaint. And they're trying to say that when you're obligated to do the report, that it's a privileged communication...under obligation of law; that they did not have a choice in it and should not be responsible. And they also claimed that the Lexington Herald-Leader got a copy of it through the Open Records Act, and therefore, they're not responsible..."
To qualify as defamatory communication something must be published through a third party.
Golden's retort was that FCPS was not obligated to do the report and he cited Stu Silberman from H-L's August 26th article where he declined to comment on the BTWA parent's specific concerns telling the Herald-Leader it was a moot point since Petrilli was leaving.
"That's what I hearken back to, to say No, they were not under an obligation...If you don't believe me, listen to what Stu Silberman said."
Golden also cited KRS 161.120 (2) (a):The superintendent of each local school district shall report in writing to the Education Professional Standards Board the name, address, phone number, Social Security number, and position name of any certified school employee in the employee's district whose contract is terminated or not renewed, for cause except failure to meet local standards for quality of teaching performance prior to the employee gaining tenure; who resigns from, or otherwise leaves, a position under threat of contract termination, or nonrenewal, for cause; who is convicted in a criminal prosecution; or who otherwise may have engaged in any actions or conduct while employed in the school district that might reasonably be expected to warrant consideration for action against the certificate under subsection (1) of this section. The duty to report shall exist without regard to any disciplinary action, or lack thereof, by the superintendent, and the required report shall be submitted within thirty (30) days of the event giving rise to the duty to report.
Golden's due process argument is that if FCPS had an obligation under law it was pursuant to this statute. If that's the case they failed to meet the requirements because the report was 8 months late. "It's a checkmate, Golden said."
"They tried to distinguish the statute by saying, 'No, No, that's only if she gets terminated. She was not terminated.' And I pointed out to the court...this statute says termination, resignation or otherwise. That's how broad it is."
Or, if FCPS did not have an obligation to report "then the whole defense for why it's not defamatory fails," Golden said.
KSN&C also put in a call to FCPS attorney John McNeill, but hasn't heard back yet.
Here's H-L's story:
Fayette Circuit Judge James Ishmael said he needed more time to decide whether he would dismiss a former elementary school principal's defamation claim against the school board.
During a hearing Friday morning, Ishmael told attorneys he was not prepared to rule on the Fayette County school board's motion to dismiss the suit. Ishmael said he would issue an opinion as soon as possible......School board attorney John McNeil said the board was obligated by the Kentucky Education Reform Act to conduct an investigation into complaints about testing. McNeil said the defamation claim has no merit.
McNeil said there was also no reason for Allen to be named in the lawsuit because she was performing duties in good faith and in a non-malicious manner.But Petrilli's attorney, Dale Golden, said the school board created and released the report to protect itself nine months after Petrilli was forced to leave her job. He contends that Allen was not acting in good faith when she used taxpayer money to manufacture evidence...