A hearing has been scheduled for 10 a.m. Wednesday, March 11, at the Pike County Judicial Center in the injunction case suspended superintendent Josh Powell filed against the Montgomery County Board of Education.
In court action filed on behalf of Powell Jan. 30 in Montgomery County Circuit Court, it was noted Powell requested a motion for an immediate and permanent injunction against his suspension, an expedited hearing and reinstatement. Powell has been suspended since Jan. 7 with pay.
Attorneys for Powell argue there is no provision in state law that allows for suspension of a superintendent, only removal, and that Powell’s contract has been breached.
|Suspended Montgomery Co. Superintendent Josh Powell|
An answer to Powell’s verified complaint for injunction was filed on behalf of the school board Monday in circuit court. The school board offers 20 defenses as to why it feels the complaint for injunction should be dismissed. For details on that, see the story below.
A hearing had been scheduled for 10 a.m. Tuesday, March 3, in Pike County, but was canceled due to an attorney scheduling conflict. Eddy Coleman, regular sitting circuit judge in the 35th judicial circuit, Division I, has been designated to preside in the matter in Montgomery Circuit Court until final determination. Montgomery circuit judges Beth Maze and William E. “Bill” Lane recused themselves from the case.
An order for the hearing was filed in the case Feb. 26.And this:
Powell and his attorney have taken issue with statements made as to why Maze recused from the case. A motion for change of venue was filed last week.
Powell’s attorney, C. Ed. Massey, said venue becomes an issue if the case goes to trial. He claims because Maze “made inflammatory accusations” against Powell, “including defamatory statements against” Powell’s character and credibility, Powell cannot have an unbiased trial here.
“It is uncertain if Dr. Powell could get a fair trial anywhere, given the remarks of Judge Maze, which would taint any potential trier of fact,” Massey told the Advocate last week.
In her order for recusal, Maze said she has a close personal relationship with the former Montgomery County Schools curriculum director. Because of that relationship, Maze claims she has been privy to information regarding Powell’s conduct, including treatment of the former curriculum director.
She added she believes the removal of the director and placement back into the classroom violates state law.
“Knowing these facts and having formed an opinion about the plaintiff’s character and credibility,” Maze said she could not be fair and impartial regarding Powell.
As for Lane’s recusal, his wife is currently employed by the board of education and he has children in the school system.
Maze said last week she had no comment, that any actions taken will be done by the special judge.
Massey also told the Advocate last week he had notified the Kentucky Judicial Conduct Commission about the matter. He claims Maze “exceeded her scope and authority by putting her personal opinion and findings” in the recusal order.
Stephen D. Wolnitzek, chair of the Judicial Conduct Commission, said he cannot confirm or deny whether a complaint has been received. The Judicial Conduct Commission is the only entity authorized under the Kentucky Constitution to take disciplinary action against a sitting Kentucky judge, according to information on the Kentucky Court of Justice’s website.
The commission investigates and reviews complaints and conducts hearings when warranted regarding alleged misconduct.
Attorney John McNeill from the Lexington law firm of Landrum and Shouse is defending the injunction lawsuit for the school board.
A separate Lexington law firm recently hired by the board is investigating allegations involving Powell.
Order of recusal entered in Powell case
Circuit court judges Beth Maze and William “Bill” E. Lane have recused themselves in superintendent Josh Powell’s court action against the Montgomery County Board of Education.
Powell, suspended since Jan. 7, seeks a motion for injunction setting aside his suspension. Powell also seeks an expedited hearing and reinstatement.
Feb. 11, Maze, chief judge of the 21st Judicial Circuit, entered a recusal order on behalf of herself and Lane. The order of recusal said Maze would be submitting the case to the chief regional judge of the Mountain Region of judicial circuits (Pike County Circuit Judge Eddy Coleman) for assignment of a neutral and impartial judge.
In the order of recusal, Maze notes that according to the protocol of the 21st Judicial Circuit, the case drew Division II and was assigned to her. “After review of the complaint, motion and relevant case law, it is abundantly clear that the undersigned should recuse from hearing this case for the following reasons,” Maze said.
The first reason is that Maze claims she has a close personal relationship with the former Montgomery County Schools curriculum director.
“Because of this close personal relationship, the undersigned has been privy to information regarding the plaintiff’s conduct. This information encompasses plaintiff’s treatment of the former curriculum director, including her removal as director and placement back into the classroom,” Maze claims. She adds that she believes the removal of the director is in violation of Kentucky Revised Statute 161.765 and OAG 77-328.
“Knowing these facts and having formed an opinion about the plaintiff’s character and credibility,” Maze says she cannot be fair and impartial regarding Powell.
The second reason Maze notes in her order of recusal is that Circuit Judge Lane’s wife is currently employed by the board of education and Lane has children enrolled in the school system. “As such, Judge Lane has a conflict,” she says.
The estimated court time for the injunctive relief case is two days.
Powell’s motion for an immediate and permanent injunction and expedited hearing was filed Jan. 30. It was coupled with a nine-page verified complaint for the injunction. Powell is represented by attorney C. Ed Massey.
The school system has 20 days (until Feb. 19) to respond to Powell’s complaint. A response had not been filed when the Advocate checked Friday afternoon (Feb. 13). The courthouse was closed, however, Monday and Tuesday of this week due to inclement weather.
Board attorney Shelly Williams provided this statement Tuesday in a request for a response from the school board in regard to the recusal: “Attorney John McNeill, from the distinguished Lexington law firm of Landrum and Shouse, will defend the injunction lawsuit for the board. John McNeill has great deal of experience in school law and has an excellent reputation.”
Powell told the Advocate Tuesday, “I am disappointed in the comments made by Circuit Court Judge Beth Maze concerning her reasons for recusal. Although her citations of statute, case law and attorney general opinion are certainly relevant to the demotion of an employee, her description of the event was inaccurate. The ‘former Curriculum Director’ was not demoted. Rather, the employee voluntarily requested to be transferred to the position of classroom teacher. The referenced employee continues to perform well and has had a positive impact on the numerous children that have had the good fortune of being in her classroom.”
Legal counsel for Powell has argued that there is no provision in state law that allows for the suspension of a superintendent, only removal. His complaint in circuit court also alleges breach of contract, as there has been no mutual agreement to terminate as referenced in his contract and no “for cause” determination. The board has also violated contractual provisions of his contract, Powell claims, by canceling all technology and vehicle allowance compensation. The board has canceled access to travel expenses and refused to pay for Powell’s counsel, which also violates contractual provisions of Powell’s contract, he alleges.
In addition, Powell claims the actions of the board have slandered and defamed him and that $12,000 of his payroll is being withheld without explanation.
The school board recently hired a Lexington law firm to investigate allegations involving Powell, including providing a hostile work environment, insubordination, hiring practices, financial mismanagement, unauthorized purchases and conduct unbecoming of an education professional. The board also Feb. 10 voted to order Powell’s return of district electronic devices and restricted him from school property while on suspension without express written approval from Bill Morgan.
The board at that Feb. 10 meeting also asserted a conflict with attorney Michael Owsley related to representation of Powell and the board both in civil litigation and hearings before the Educational Professional Standards Board.
Powell alleges actions at that meeting are another example of the board trying to cause harm. He claims board members are powerless outside of a board meeting and restricting access to the public school district where four of his children attend “is another example of the board abusing power.”
Board members considered a request from Massey to rescind all action taken at the Jan. 7 special meeting and reinstate Powell to active status at the meeting Feb. 10 in a closed session that lasted about an hour. Massey and another attorney claim a motion to enter closed session at the Jan. 7 meeting did not comply with Kentucky Revised Statutes. The board held another meeting Jan. 10 and essentially took the same action to suspend Powell. The agenda for that meeting was more detailed, however.
The board voted unanimously Feb. 10 to keep Powell’s suspension in place. Board member Donna Wilson previously voted.