FCPS Appellee's Brief and Cross Appeal

Appellate review in Petrilli v Silberman, and whether former Booker T Washington Principal Peggy Petrilli is granted a new trial, hangs on the question of Judge James Ishmael’s threshold jury instruction:

“Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?”

Juries have tremendous power over people's lives. Granting them such power directly expresses our faith in the system of justice, democratic governance, and whether the public has faith that jury verdicts can be fair, unbiased, and accurate.

In recent years, however, concerns have been raised about the quality and integrity of the outcomes reached by juries. Some believe that jurors are too frequently biased, or incompetent to render just verdicts. Jurors can misunderstand instructions from the judge on legal issues, fail to recall critical evidence, or suffer from boredom during trials - particularly in complex trials.
For these reasons, and perhaps others, the quality of jury instructions is critical to guiding the jury toward a result that is based on sound legal principles rather than biased, arbitrary or sloppy reasoning.

The central question under review in Petrilli v Silberman is whether a fair set of jury instructions existed, but there's some other stuff too. The district wants the Court of Appeals to agree that Petrilli voluntarily resigned and leave Fayette County Circuit Court Judge James Ishmael's ruling undisturbed. They request the court to confirm the trial jury or alternatively grant the district's cross appeal for a directed verdict on all issues, which would pretty much do the same thing.

KSN&C had hoped to present the district’s arguments alongside those of Appellant Peggy Petrilli, but we were unable to secure the cooperation of counsel for the school district. KSN&C thanks Sam Givens at the Kentucky Court of Appeals and Judge Ishmael for their assistance.

The following is a summary of the district’s point of view.

District arguments in Petrilli v Silberman:

· The threshold jury instruction was not preserved for review. This is a procedural argument and I won’t pretend to understand its subtleties. Apparently, in order to “preserve” an issue for appellate review, the attorney must …do something…like object. Objections are preserved for appellate review only if those objections are made and ruled on in the trial court. And McNeil argues that Dale Golden’s objections came during a preliminary hearing, as KSN&C has reported. See: Nebraska Law Review for a discussion. So, if I’ve got this argument right, McNeill says Golden objected to the jury instruction during a preliminary hearing, but not in the trial court, and therefore, it was not properly preserved. I would only note that during oral argument, the judges were aware of this argument but at least two of the judges did not appear to be buying it.

· McNeill says the threshold jury instruction was proper. Golden seeks what is called a de novo review of Judge Ishmael’s threshold jury instruction and McNeill says that’s not the correct way for the court to look at it. “The threshold jury instruction was proper because once the jury found that Petrilli voluntarily resigned, she could no longer meet the essential elements necessary to prove her claims of an adverse employment action.” McNeill pins his position on the argument that Petrilli was not under any time pressure (which might give rise to a constructive discharge) because she first brought up the idea of resignation, did so with advice from counsel, negotiated her separation, and had been given options to avoid resignation, including suspension with pay, which McNeill told the court was not an adverse employment action. Again, it is not clear that the appellate judges bought this argument.

· The district argues that Petrilli had no right to a constructive discharge jury instruction because it was not properly preserved, Petrilli’s arguments are misleading, and that during the pre-trial stage of the case, Golden had argued that they were not making a constructive discharge claim.

· McNeill argues that the court erred in not granting the district a directed verdict on the reverse discrimination claim and that Petrilli did not suffer an adverse employment action. McNeill says Petrilli confuses not wanting to resign with choosing to voluntarily resign once confronted with substantial complaints about her running of the school.

· McNeill states that Petrilli was qualified to serve as principal…

· ..but that she was replaced by a white man, Jock Gum. Gum had served as an interim principal, finishing out the year. However, the hiring of Wendy Brown, a black woman, was at the core of the case, and here McNeill argues that Silberman and the board could not be held responsible because it was the school council who hired Brown.

· The district says that the court improperly failed to grant their motion for a directed verdict on retaliation claims, whistleblower claims.

· …that the trial court was correct to excuse Brenda Allen from any claims.

· …that the court properly handled jury selection.

· …that the trial court was correct to disallow testimony from Allen.

· …that the court was correct to overrule complaints from Golden against McNeill, and a requested second deposition of Doug Adams. During oral argument, one judge made statements inferring that the misconduct claim would likely go nowhere.

· …that the court was correct to overrule Petrilli’s Motion in Limine on prior bad acts when it allowed testimony on related issues at BTWA.

· …some lawyerly something about how McNeill used depositions to impeach and rehabilitate witnesses…

· That the court erred by refusing to dismiss Silberman as officially and as an individual.

School Board to School Council Members: "Sue You"

Imagine that you are a member of your local board of education. Ponder your responsibilities. Think about how you are going to enlist all of the help you are going to need in order for your school district to be successful. You can generally count on all of the principals and most of the teachers being on board, if for no other reason than it is their job. Most will be strong supporters of improving the schools.

But what about the parents?

When schools and parents work closely together we get the best results for the kids. We see that over and over again. It is an important attribute comon to the best public schools, charter schools, and private schools.

Think about what kind of message you'd want your school board to send to the parents who serve at the school council level. Are you all partners on the same team? Or do we only want parent involvement when its convenient? And what's the board's message to the parent and teacher council members when things go wrong?

Believe it or not, this issue was touched on yesterday in the Kentucky Court of Appeals during oral arguments. It was a question of who should be held responsible if a personnel matter at the school level brought allegations of wrong doing, such as the racial discrimination claim in Petrilli v Silberman.

While representing his clients, Fayette County Schools Superintendent Stu Silberman and the Board of Education, attorney John McNeill argued yesterday that it was inappropriate to sue the superintendent or board. Instead, he suggested to the court that an aggreived person should sue ... individual school council members!?

Now, as I'm sure KSN&C readers know, school council members select their school's principal from a list of qualified candidates provided by the superintendent. In the case of teachers, council members are consulted before the principal selects. In both cases, the superintendent completes the hiring process. After that, the personnel responsibilities of school council members are a big honkin' ZERO. Nothing. School council members do not consult, advise, observe (formally), evaluate, or discipline any teacher or principal who gets out of line. They have no authority to do so whatsoever. So the suggestion that these are the folks who should be sued in such cases left me bewildered.

Wondering if I was the only person who found McNeill's argument to be stunning, I went looking for a second opinion from another attorney. I happened to find one who used to run the Kentucky Association of School Councils, Susan Weston.

Weston opines,

The school-based decision making statute, KRS 160.345(2)(f), says in so many words that school councils "shall not have the authority to recommend transfers or dismissals/" School councils have a specific role in hiring: they select principals and are consulted on other vacancies. They have no role with individual personnel once they are hired. They do not evaluate, do not set evaluation rules, do not discipline, and do not terminate. And, as the law I just quoted makes clear, they don't even get to recommend that employees be removed from their current positions. Since a council has no legal role at all in a process that leads to a principal ceasing to be principal, I am mystified about how a council could be sued over activity it could not
control.

Yeah. What she said.

Now I'm betting that neither the superintendent or board of education got together to make this suggestion their unofficial policy or their legal gameplan. Tempting as it might be, I doubt our board members would really want council members to be held responsible for things beyond their control. Still, it is troubling to think that this argument is out there, before the Kentucky Court of Appeals.

What if the court agrees with McNeill? Who would want to serve on a school council then?

Appeals Court Signals Remand of Petrilli Case

School District Attorney Argues

Plaintiffs should Sue School Councils

Rather than Superintendents

in School-based

Racial Discrimination Claims

Ruling Expected in Mid march

During Oral Argument before the Kentucky Court of Appeals today, two judges openly and repeatedly expressed doubts about Fayette County Circuit Court Judge James Ishmael’s threshold instruction to the jury in Petrilli v Silberman.

In deliberation during the trial, jurors were only allowed to consider whether they thought former Booker T Washington Principal Peggy Petrilli had resigned voluntarily. The jury made their decision while looking at a handwritten resignation letter from Petrilli that read, in its entirety, “I hereby resign my position in the Fayette County Schools” with no effective date.

None of the other issues related to civil rights, retaliation, or whistleblower claims were considered by the jury since they found her resignation to be voluntary.

That result undermined J Dale Golden’s constructive discharge claim and exonerated Fayette County Schools Superintendent Stu Silberman and the Fayette County Board of Education.

Responding to an argument from Golden, Judge Kelly Thompson said, “I don’t agree with that threshold instruction either…” Later during John McNeill’s argument, Judge Glenn Acree said, “I, too, have a problem with this instruction…I’m not sure a jury understands [everything that goes into making a resignation] voluntary.”

McNeill argued that the superintendent and board weren’t guilty of anything, that the jury instruction was proper because it contained the word “voluntary,” and that Golden’s assertion of constructive discharge was made “without evidence.”

Judge James Lambert made no specific assertions during questioning but only two judges are needed to prevail on any particular point of law.

The only clue about the court's leaning on the central issue of whether Petrilli voluntarily resigned came from Judge Acree who said at one point, “It sounds like she didn’t want to leave.”

I'm no attorney but it sounds like this case may be headed back to Fayette County. But we won’t know for sure until sometime in mid March. A ruling is expected in 30 to 45 days.

KSN&C Backstory here

Each side was given 15 minutes to argue points of law and procedures before the court. Golden, representing Appellant Peggy Petrilli, chose to argue for 10-minutes and reserve 5-minutes for rebuttal. John McNeill, representing Stu Silberman and the Board of Education used all 15-minutes for argument – thus allowing Golden to speak first and last.

Most of the court’s attention was on the threshold jury instruction, and the question of whether Kentucky’s school council laws have the effect of insulating superintendents and school boards from discrimination claims.

What did the school board do wrong? one judge asked. You tell us about the Clarks and Ms Berry but what about the board?

“If there is a racial discrimination claim, who would you sue?” Acree asked repeatedly. McNeill opined that one must sue individual school council members. Golden argued that it was appropriate to sue the superintendent who is ultimately in charge of everything.

The district filed a Cross Appeal claiming that Judge Ishmael should have issued a directed verdict on all of Petrilli’s claims because they all lacked evidence. During a pretrial hearing, Judge James Ishmael had rejected the district's request for summary judgment saying,

"Right now, I’m not comfortable that the facts are so undisputed, that I feel comfortable making a ruling as a matter of law."

Golden argued that all of Petrilli’s other claims should have survived any resignation. For example, if a woman is raped at work, she does not have to keep working there to have a case, Golden said.

From Twitter: (READ FROM THE BOTTOM UP.)

Reday000 Adjourned. Court indicates it will respond in 30 to 45 days.
Reday000 when asked...says Buddy Clark was disbarred in Chicago.
Reday000 Golden: Voluntary was not defined. Threshhold question was inappropriate.
Reday000 Golden rebuttal begins. Thompson demures on sanction question.
Reday000 McNeill denies sanctionable conduct.
Reday000 McNeill defending jury instruction because it contained the word voluntary.
Reday000 Acree: I, too, have a problem with this instruction...not sure jury understands what voluntary means...
Reday000 Acree: If there was a racial discrimination claim, who would you sue?
Reday000 District filed cross appeal saying there should have been a directed verdict on all of Petrill's claims.
Reday000 Acree: "It sounds like she didn't want to leave."
Reday000 McNeill says constructive discharge claim was without evidence.
Reday000 McNeill is up.
Reday000 Golden: "This was a hatchet job."
Reday000 Golden goes after McNeill's conduct during trial.
Reday000 Golden argues whistleblower & civil rights claims should survive any resignation.
Reday000 Brenda Allen is in attendance.
Reday000 ...what did the school board do?
Reday000 Thompson: "I don't agree with that threshhold instruction either. That's not my problem...
Reday000 Each side gets 15 minutes. Golden goes first.
Reday000 Lambert presiding. Welcomes and introduces.

Petrilli Files Appeal

Commonwealth of Kentucky

Court of Appeals

Case No. 2009-CA-001925

Peggy Petrilli v Stu Silberman

hand-delivered 19 March 2010

to the Kentucky Court of Appeals

Attorney J Dale Golden, representing appellant Peggy Petrilli, filed an appeal today. Golden centered the appeal on his claim that Fayette County Circuit Judge James Ishmail erred when he "found that Petrilli waived all of her claims against the Defendants when she resigned" because, Golden argued, "employers cannot absolve themselves of liability by successfully compelling employees to resign."

Reporting live during the trial KSN&C recorded surprise at the jury instructions.

KSN&C reported by Twitter this morning (July 28, 2009) that there was a debate of nearly one hour over jury instructions and the focus was on whether the jury believed Petrilli voluntarily resigned. This turned out to be the critical debate of the day.

Judge James Ishmael argued that if the jury decides Petrilli voluntarily resigned, knowing her options - How is that not a waiver of any claims?

Golden responded that Petrilli had no bargaining power in the matter and was therefore not an equal player. "If you're not the person holding the gun, you don't waive anything," he said.

Again by Twitter, KSN&C reported the argument in real time and reacted to the potential impact of the decision on the case:

Jury instructions hinge on one question alone.

"Question #1 Do you believe from the evidence that the plaintiff, Peggy Petrilli, voluntarily resigned from her position as Principal of... ...Booker T Washington Academy on August 27, 2007?

If you answer Yes...you have found for the defendants...FCPS.

If no...then jury proceeds to 8 pages of instructions on race discrimination, retaliation and whistleblower claims.

Wow. So the central question of the case becomes THE big question for the jury. If they believe her resignation as written...it's over.

Well, perhaps it's not totally over. That will be up to the Kentucky Court of Appeals.

Following trial in the lower court Golden immediately outlined his thoughts on an appeal.

What we’re looking at is the prospect of an appeal, specifically, the very first instruction that was given. It was our argument that there are four elements to a reverse discrimination claim. So it will be for the appellate court to decide whether that first instruction should have been given or not...We argued against the first instruction that would nullify not only the reverse discrimination claim, but also the retaliation and the whistleblower claim. In other words, our position would be that she could be – even if Peggy voluntarily resigned there could have been some things that occurred that could constitute a whistleblower violation, so violations of the law could have occurred earlier.

Attorney John McNeill, representing Superintendent Stu Silberman and the Fayette County Board of Education said, "Everybody looks at the [jury] instructions differently. That’s why we have litigation. He’ll make whatever options; and assess that with his client, and pursue those things, and we’ll pursue the things we need to do…"

Here are the highlights of Petrilli's case as filed today

I. STATEMENT OF THE CASE

A. Berry and Clark Worked Together to Get Rid of Petrilli.

1. May and June 2007—In Accordance with School Policy, Petrilli Reports the Clarks’ Child For Being Out of Area.
2. July 2007—The Clarks and Berry successfully get rid of Petrilli.
3. August 22, 2007—Secret Meeting violated Kentucky Law.
4. August 23, 2007 – Petrilli was forced to resign.

II. ARGUMENT

A. Federal law is applicable in interpreting the Kentucky Civil Rights Act.

“The Kentucky discrimination statute is modeled after, and is virtually identical to, Title VII. Kentucky courts have, therefore, followed federal law in interpreting its anti-discrimination statute.” Since the KCRA was enacted to implement the federal Civil Rights Act of 1964 in the state, its provisions mirror the federal Act. Thus, it is proper to look to federal law in these cases.
B. The trial court erred in creating a threshold jury instruction that superseded the elements for reverse discrimination, retaliation, and whistleblower.

This Court uses a de novo standard of review for erroneous jury instructions. The jury was given the following improper threshold jury instruction:

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily resigned from her position as principal of Booker T. Washington Academy on August 2, 2007?

The jury marked “yes” and returned to the courtroom where the trial judge discharged them from further duties. The threshold instruction was given in error because it is completely different from the elements of Petrilli’s claims for reverse discrimination, retaliation, and whistleblower, as demonstrated by the jury instructions given by the court.

Petrilli was entitled to a jury instruction regarding her claim of constructive discharge. The standard for constructive discharge is whether the “conditions created by the employer’s action are so intolerable that a reasonable person would feel compelled to resign.” Thus, what may appear to a layman on the jury to be a voluntary resignation may in fact have been compelled by an employer’s conduct. Petrilli was entitled to a jury instruction explaining the difference. In addition, proof of a constructive discharge is but one of a myriad of things that satisfy the requirement of an adverse employment action that is necessary for a reverse discrimination instruction and a retaliation jury instruction.

In Brooks, the court noted: “While constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.” Although Petrilli submitted a constructive discharge instruction, none was given. Constructive discharge instructions are submitted to the jury in these types of cases because a constructive discharge is a type of adverse employment action. The pivotal issue is whether the employee felt compelled to resign. However, the act of resignation as a part of a constructive discharge is but one of many potential adverse employment actions available to support a jury verdict.

(1) The Elements of a reverse discrimination claim are as follows:

(a) Petrilli is a member of a protected class;
(b) She experienced an adverse employment action;
(c) She was qualified for her position of employment; and
(d) She was replaced by a person of a different race.

(2) The elements of a retaliation claim are as follows:

(a) She engaged in a protected activity under KRS 344.040;
(b) This activity was known to the Defendants;
(c) Defendants took an adverse employment action against Petrilli; and
(d) A causal connection exists between that adverse employment action and the Petrilli’s exercise of the protected activity.

(3) The elements for a whistleblower claim are as follows:

(a) She reported actual or suspected violations of law, mandates, rules or policies;
(b) The Defendants caused her to be subjected to reprisal or directly or indirectly used official authority or influence against her as a result of her report.

The trial court specifically found that Petrilli waived all of her claims against the Defendants when she resigned. This rationale on the part of the trial court was erroneous because employers cannot absolve themselves of liability by successfully compelling employees to resign. If Petrilli resigned on a Wednesday, it does not negate retaliation exercised against her in violation of the whistleblower statute that occurred on the prior Tuesday or any day prior to that. In fact, it is not uncommon for employees to resign from their employment when employers act in an unlawful manner.

The discrimination and retaliation claims share a common element of an “adverse employment action.” Thus, if Petrilli resigns on a Wednesday, it does not negate retaliation, or discrimination, or reprisal that occurred on the prior Tuesday or any day prior to that. Again, it is not uncommon for employees to resign from their employment when employees act in an unlawful manner. Petrilli’s resignation is not dispositive because constructive discharge is but one of a myriad of potential adverse employment actions that satisfy the prima facie elements of discrimination and retaliation.

[W]hile constructive discharge may constitute an adverse employment action within the meaning of the KCRA, not all adverse employment actions constitute constructive discharge.

Thus, an adverse employment action includes, but is not limited to, “constructive discharge.” Violations of the law can occur prior to, during, or even after an employee attempts to resign.

Voluntariness is but one component of the larger issue of constructive discharge. Along the same vein, Parker v. Board of Regents of Tulsa Junior College, held that a “resignation is involuntary and coerced when the totality of the circumstances indicates the employee did not have the opportunity to make a free choice.” Scharf v. Dept. of Air Force advises that, in order “to determine whether a resignation or retirement is voluntary, a court must examine the surrounding circumstances to test the ability of the employee to exercise free choice.” Furthermore, “voluntariness is vitiated when one” of the following occurs:
· Employee resigns under duress;
· Employee unsuccessfully tries to withdraw resignation before its effective date;
· Employee submits a resignation under time pressure;
· Employee fails to understand the situation due to mental incompetence; or
· Resignation obtained by misrepresentation or deception.

There was ample evidence presented concerning the strict time constraints imposed on Petrilli. This is important, because a true, voluntary resignation is done when the employee wants to do it, not when the employer orders it done by a certain time.

In Commonwealth of Kentucky v. Stosberg, the Plaintiff signed a resignation letter after her employer attempted to force her to transfer to another location. In effect, the circumstances her employer placed her in left her with no other option. The court thus determined that a constructive discharge occurs where the “conditions created by the employer’s actions” compel the Plaintiff to resign. Northeast Health Management, Inc. v. Cotton, et al. also deals with a situation in which two employees tendered resignation letters. In that case, the employees resigned after their supervisor stopped speaking to them and began assigning their lunch and break times. The jury ultimately found that the employees had been constructively discharged. The Court of Appeals upheld the jury’s decision. In doing so, the Court of Appeals stated that, “while the conditions alleged may not have been the most egregious imaginable, they surely rise to the level that the jury had sufficient evidence to find a constructive discharge.”

Walther testified at length about Petrilli’s financial constraints due to the fact that, unlike teachers, administrators are not covered by the KEA insurance and, therefore, administrators have to pay for their own attorneys. Thus, Petrilli would have paid $25,000.00 at a minimum to go through the tribunal process, while having no money coming in from the school, and while having to care for her adult son, who resides with her and has the mind of a 5-year-old. Certainly, this Court can see that Petrilli recognized that she had no choice and that Silberman was not going to follow the due-process procedures set out in the KAR, KRS, and the Board’s policies. Therefore, the only option Petrilli had was to resign and try to obtain employment elsewhere. She attempted to do this and part ways with Silberman; however, Silberman and Allen manufactured the “investigative memorandum” some 8 months later as an insurance policy against the lawsuit Petrilli was about to file. Having successfully tarred and feathered Petrilli, despite the subsequent finding by the Kentucky Department of Education that there was not enough evidence to support the charges, Petrilli is unemployable in her chosen profession.

In Schultz v. U.S. Navy, the court concluded that “an ostensibly voluntary resignation which was submitted as a result of agency coercion…must be treated the same as an adverse action.” Furthermore, a resignation is not voluntary where an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit no alternative but to accept, and those circumstances were the result of improper acts of the agency.

The fact that Petrilli’s resignation was not voluntary is demonstrated by the correspondence between Walther and Allen. It was Allen who added on to the correspondence that Petrilli would not reapply in the future for a position with Fayette County Public Schools. It is clear that, if Petrilli had truly voluntarily resigned, she would have simply walked away. It is unconscionable that she had to try and negotiate with Silberman that she be able to leave her employment without mudslinging.

Silberman’s article in the Herald-Leader, stating that Petrilli was not going back to BTWA; his offer of the Northern principalship, followed by a vindictive decision to threaten Petrilli with suspension; and Silberman’s refusal to comply with the evaluation instrument, due process, and evaluation requirements mandated by the KAR and KRS are all indicative of a constructive discharge. “Constructive discharge presents a question of fact that, in jury trials, should be decided by the jury and not the trial court.” The court’s threshold instruction was thus erroneous.

C. Petrilli Was Entitled to a Directed Verdict on Her Reverse Race Discrimination Claim.
1. Petrilli is a Member of a Protected Class.
2. Petrilli experienced an adverse employment action.
(a) A constructive discharge is an adverse employment action.
3. Petrilli was qualified for her position of employment, and
4. She was replaced by a person of a different race.

Petrilli’s Motion For a Directed Verdict On Her Retaliation Claim Should Be Granted AND THE THRESHOLD INSTRUCTION WAS ERRONEOUS.

The trial court erred in failing to give a separate instruction on whistleblower, failing to direct a verdict, and failing to give a punitive damages instruction. The Appellees took action or threatened action to discourage Petrilli from making disclosure or to punish Petrilli for making such disclosures.

D. It was Error to Dismiss Petrilli’s Constitutional Claims and the Trial Court Erred in Failing to Direct a Verdict on Behalf of Petrilli on her Constitutional Claims.

E. THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS AGAINST ALLEN.
The trial Court erred in its handling of the Batson issue.

THE TRIAL COURT ERRED IN OVERRULING PETRILLI’S MOTION IN LIMINE ON CHARACTER EVIDENCE.

THE TRIAL COURT ERRED IN REFUSING TO SANCTION ATTORNEY MCNEILL AND IN REFUSING TO ALLOW THE SECOND DEPOSITION OF DOUG ADAMS.

F. THE TRIAL COURT ERRED BY PREVENTING PETRILLI FROM TESTING THE SUFFICIENCY OF THE “ADVICE OF COUNSEL” DEFENSE.

G. THE TRIAL COURT ERRONEOUSLY ALLOWED MCNEILL TO READ FROM DEPOSITIONS.

CONCLUSION

Petrilli respectfully requests the following relief:
1. Reverse the trial court for use of a threshold instruction;
2. A directed verdict for Petrilli on the issues of protected class, being qualified for her position, and being replaced by a person of a different race;
3. A directed verdict for Petrilli on the adverse employment issue or, at the very least, a jury instruction setting forth the elements of constructive discharge as tendered by Petrilli;
4. Reverse the trial court and find that Petrilli is entitled to a punitive damages instruction regarding the whistleblower claim;
5. Reverse the trial court’s directed verdict on Petrilli’s constitutional claim;
6. Reverse the trial court’s dismissal of the defamation claim against Allen and the other Defendants;
7. Reverse the trial court’s arbitrary discovery deadline of August 27, 2007;
8. Allow Petrilli to take the discovery deposition of Allen;
9. Reverse the trial court’s ruling on the motions in limine regarding character evidence;
10. Allow Petrilli to retake Adams’ deposition, sanction opposing counsel for his misconduct and award costs and attorneys’ fees; and
11. Direct a verdict in favor of Petrilli on all constitutional claims;
12. Permit Petrilli to test the sufficiency of the “advice of counsel” defense;
13. Reverse the trial court’s erroneous ruling which allowed for improper impeachment and rehabilitation; and,
14. Remand this matter for a new trial.

Respectfully submitted,

GOLDEN & WALTERS, PLLC

Petrilli v Silberman Goes to the Jury

"You can see how Peggy's been treated...

how she's been demonized.

Don't let them get away with it."

--J Dale Golden

Testimony and closing arguments in the case of former Booker T Washington Academy Principal Peggy Petrilli against Superintendent Stu Silberman and the Fayette County Board of Education concluded around 12:50 this afternoon. It's all in the hands of the jury now.

John McNeill for the defense held his closing remarks close to the jury instructions focusing on the one central question in the case.

Do you believe from the evidence that the Plaintiff, Peggy Petrilli, voluntarily
resigned form her position as Principal of Booker T Washington Academy on August
27, 2007?

If the jury answers this sole question "Yes," the case is over and Stu Silberman and the board prevail. The longer it takes to reach a verdict - the greater the chances that Peggy Petrilli has prevailed.

If the jury does not believe Petrilli's resignation to have been voluntary they will proceed to the attendant issues of racial discrimination, retaliation and the whistleblower claim.

On racial discrimination the evidence must show:

• Petrilli was a member of a protected class
• she was subject to an adverse employment action
• and was replaced by Silberman by an African American person as Principal at BTWA

On Retaliation the evidence must show:

• She complained about racial issues committed by agents, representatives or employees of the board
• The defendants knew of her complaint
• She was subjected to adverse employment action
• and there was a causal connection between the complaint and the action

Under the Whistleblower statute the evidence must show:

• she reported information regarding actual or suspected violations of law or policy to the board through its agents and
• the board caused her to be subjected to reprisal, or directly or indirectly used its official authority, or influence against her as a direct result of the report.

On damages:

If the jury finds any of these to have been violated it may fairly and reasonably compensate her for mental pain and suffering, lost wages and permanent impairment of her ability to earn money in the future.

McNeill has maintained that it was Petrilli who resigned voluntarily after becoming upset when Silberman informed her of a meeting he had with Booker T parents and community members and shared their 2 1/2 page list of of complaints. He said that Silberman still wanted to defend Petrilli and even offered her the post back at Northern Elementary where she had seen great success, but that it was Petrilli who rejected the offer in favor of looking into retirement.

In his close, Dale Golden followed a much different course weaving a tale of circumstances that he said show the coordinated mistreatment of Petrilli at the behest of BTWA parents Jessica Berry and Alva and Buddy Clark in return for their not pursuing an OEA complaint, picketing the school, or unwanted media attention. Golden argued, "You can see how Peggy's been treated...how she's been demonized. Don't let them get away with it."

Petrilli v Silberman Day 6

[We] “put a high flying principal at the school…

watch as there will be a drastic turnaround in student improvement”

---Stu Silberman to Starr Lewis

This from Jim Warren at the Herald Leader:

Fayette superintendent testifies

he didn't force principal to quit

Fayette Schools Superintendent Stu Silberman repeatedly asserted Thursday in Fayette Circuit Court that he never forced Peggy Petrilli to resign as principal of the Booker T. Washington Academy in 2007, maintaining that he continued to back her despite repeated administrative mistakes that she made at the school.

Silberman: Mr Golden…it was an ongoing …litany of problems…and we supported Peggy in every single one of them....

There was tremendous staff turnover...Peggy was always dealing with non tenured teachers...constantly turning staff members over. [One staff member's] concern was that Peggy was telling her to do illegal things.

Golden: Of course, when you heard of illegal things you reported it to law enforcement…?

Silberman: If Peggy was cheating on the test…As a matter of fact we reported that to our [District Assessment Coordinator] the next day…[the DAC reported it to] KDE…not law enforcement. Did we have a duty to investigate? Yes, we did…finance issues…Yes we did…

Golden: I didn’t hear you talk about anything Peggy did wrong between Thursday, when you offered her Northern, and Sunday…You all had attorneys on Thursday didn’t you?

Silberman: The only difference is…our attorney looked at the information with a very different perspective…I had advice of counsel on Sunday…

But Petrilli's attorney, J. Dale Golden, sharply challenged Silberman's contention that Petrilli had many administrative weaknesses, wondering again and again why those supposed issues never turned up on her job evaluations.

Golden: Who is responsible for hiring and firing…

Silberman: I am

Golden: You wouldn’t shove that off on anyone else would you?

Silberman: I was seeking counsel…

Golden: Before that meeting [Aug 22nd] you thought things were going well at BTWA…

Silberman: That’s right…please understand…there was a problem every other day...

Golden: Why do you mention that…the ongoing problems?

Silberman: …you look at the number of problems ..management problems…from Peggy compared to all others [Silberman gestured to indicate a big stack for Pertrilli and a small stack]

…[Re: Reading First] Peggy had given an improper form the test…we had to get that corrected or we were going to lose our funding [at all 11 Reading First schools]…

Golden: [With all these problems] wouldn’t there be [something on her evaluation] just one piece of paper?

Silberman: If we weren’t trying to support her…if we were writing her up…that would be very different.

Golden also continued to argue that Silberman forced Petrilli out to placate some Booker T. Washington parents, led by Buddy and Alva Clark and Jessica Berry, who Golden said wanted to replace Petrilli with an African-American. Golden suggested at one point that Silberman had decided that "it would be easier to turn your back on Peggy and give in to the Clarks and Jessica Berry."

"Sir, that is absolutely untrue," Silberman replied.

Golden wrapped up his case late Thursday afternoon. There will be no testimony on Friday. The defense is to begin calling witnesses on Monday, and Circuit Judge James Ishmael has advised jurors that they might not get the case until late Monday or sometime Tuesday.

Petrilli alleges in a civil suit that she was the victim of a campaign, orchestrated by a few parents who wanted to get rid of her. She contends that Silberman and the county schools caved in and forced her to resign because the parents were threatening to picket the school, contact the news media or complain to the state Department of Education.

Petrilli submitted her resignation on Aug. 27, 2007, five days after a contingent of Booker T. Washington parents, some school staffers and some community leaders handed Silberman a 21/2-page list of complaints about Petrilli's work.

Buddy Clark, one of three parents Golden says orchestrated Petrilli's overthrow - the same Buddy Clark who tried to distance himself from a letter written to Silberman - started the BTWA Blog, apparently to celebrate Petrilli's demise. The blog was taken down before the trial began but KSN&C reported on most of its very limited content in September 2007.

This from KSN&C:

A new blog has sprung up in the wake of Peggy Petrilli's departure from the Booker T Washington Academy. The "discussion of issues surrounding the education of Students at Booker T Washington Academy" is the stated purpose for the BTWA blog.

It's early, but so far the blog is long on inuendo - lots of questions - but short on info and ideas. Author and BTWA parent Buddy Clark is rumored to have had an axe to grind with Petrilli.

Clark says, "The extreme emphasis on testing in the public schools has had some unfortunate consequences at BTWA. Administrators were so focused on testing that they forgot about education. Those administrators forgot their obligation to 'teach' honesty and integrity."He applauds Petrilli's demise and says, We recently learned that because 5th graders are not tested on science, some (if not all) 5th graders at BTWA were not taught science.

The principal was thought to excel because of increased test scores. Scores that increased through trickery, deception, and coercion. Tests that did not measure competence in required subjects.

I was at the Wednesday meeting where those so-called “concerns” were raised and what follows is my recollection of the issues. Without identifying attendees, it was more than just parents:

• Testing irregularities: not all students tested, inappropriate test procedures
• Curriculum irregularities: teaching the test rather than teaching required
  subjects
• Placement irregularities: students with good grades held back because
  they did not test well, students held back over parents objection
• Misapplication of funds
• Retaliationn on-compliant teachers punished or dismissed
• Failing to respond to higher authority
• Non-compliance with SBDM rules and regulations
• Potential legal liability

Referring to a Herald-Leader article, he says it "sounds like she got her feelings hurt by some whining parents."

Petrilli's statement in H-L read:

"I did the best I could do, I recognize that I did not build the trusting relationships needed with the school community in order to work together for all children."

Petrilli contends that the school district changed the language she approved which referred to a group of parents rather than the school community.

When Petrilli resigned she issued the following statement:

"I stand behind our work at Booket T. The academic achievement of our students has been my life's work, my passion, my ministry. After having a heart-to-heart conversation with [Fayette County Superintendent]Stu [Silberman] and [Director] Carmen [Coleman], it is evident that despite my best efforts, and the fact that I did the best I could do, I recognize that I could not build trust with a group of parents...

It is with a heavy heart that I have decided to leave Booker T. Washington for the sake of our students... I ask everyone to stay focused on high academic standards, a safe and orderly environment, a high-quality professional staff and most of all, our incredibly high-achieving, motivated and bright students."

Golden: [Isn’t it true]…the last person who had the release was [FCPS Community Relations Director] Lisa Deffendall before [it went to the Herald-Leader]…?

Silberman: I also think it was sent back to [Petrilli’s attorney] before it went to the Herald-Leader

Back to H-L:

But Silberman insisted Thursday that no one at the meeting ever asked him to fire Petrilli, expressed a desire to have an African-American as principal or complained about not having had a say in picking the principal.

Silberman described the parents as "very upset" and "very emotional" over "what had been happening to their children at the school." Some parents wanted to remain anonymous, he said, because they feared that Petrilli might retaliate against their children.

Golden pounced on that, asking whether Silberman ever tried to identify which children might have been at risk of retaliation. Silberman said he did not.

Silberman testified that he met with Petrilli the next day to discuss issues raised by parents. He said that he saw no reason why Petrilli couldn't remain at the school, insisting that he didn't believe most of the allegations. He said he told Petrilli, "I believe we can fight this."

The superintendent said, however, that after going over the complaints, Petrilli told him she couldn't return to the school because she had "lost the community's support." Silberman said he then offered to arrange for Petrilli to return to Northern Elementary, where she previously was principal. But she declined, saying she couldn't do that "with a cloud hanging over my head," according to Silberman.

He said that after conferring with the Fayette Schools' attorney on Sunday, Aug. 26, he decided that he would have to suspend Petrilli if she did not resign or retire. Petrilli ultimately submitted a resignation letter the next day.

Is there a lawyer in the house?

Golden questioned Silberman about his Sunday conversation with board attorney Brenda Allen who had "a completely different perspective on what was going on. After that," Silberman said, "the things we talked about were now a part of my thought process."

Golden tried to extract the board attorney's perspective, but surprisingly - to me at least -McNeilll cautioned Silberman that discussing his conversations with Allen would violate attorney-client privilege. Silberman told the jury repeatedly that he wanted to answer Golden's questions and that "it was critical" to explaining his perspective. But on McNeill's advice, he didn't.

Two Kentucky circuit court judges confirmed for KSN&C Thursday that the attorney-client privilege is owned by the client and can be waived by the client at will?

However, since McNeill also represents the board, and the superintendent is part of the board, which has not taken action on the issue, perhaps Superintendent Silberman wanted to waive the privilege but Board Secretary Silberman could not.

Silberman acknowledged, however, that he told a Herald-Leader reporter in a phone interview on Sunday night, Aug. 26, that Petrilli wouldn't return, based on her statement that she couldn't go back.

Golden closely questioned Silberman about the Aug. 22 meeting, other events leading up to Petrilli's resignation and whether Silberman had given in to pressure to get rid of her. Silberman insisted that he had not.

"Peggy made the decision to leave on her own," he said.

Silberman called Petrilli "an outstanding instruction leader" who improved test scores at both Booker T. Washington and Northern. But he said she had "significant issues" with the "organizational piece and the management piece" of being a principal. Silberman said those weaknesses led to "problem after problem after problem" that he had to resolve.

Golden questioned Silberman as to why such issues never showed up on Petrilli's evaluations, in which he always gave her high marks. Golden demanded at one point why Silberman couldn't show jurors "one piece of paper" reflecting the problems.

Silberman said the school system had tried to support Petrilli rather than simply "writing her up."

A Threatening Email

During Silberman's testimony, he made reference to a threatening email that went to all BTWA employees on that Saturday. Silberman testified that FCPS officials were able to determine the orginator as "a former employee of Peggy's" and that it contributed to an ugly atmosphere

From: Booker Washington [mailto:abouttimebtwa@hotmail.com]

Sent: Sat 8/25/2007 9:32 PM

To: BTWA Staff

Subject: Finally

FInally there is some sort of ramifications for the crap that hastaken place at BTWA for 3 years. Now to get rid of [name redacted], [name redacted], the 4th grade team and the rest of the Peggy's flunkies. In time the truth will come out and you will all be going down!

During his examination of Silberman, Golden took a moment to get something on the record related to his outstanding motion against McNeill.

Golden claims that McNeill displayed absolutely shocking behavior during the depositions in the case by taunting, name-calling and objecting more than 1,000 times. Golden claimed, that McNeill was "writing answers down on a notepad and showing them to a witness for the witness to give that answer under oath." So he asked Silberman, under oath, in front of the jury.

Golden: [In your deposition] the first time you addressed the situation with Peggy [in their Aug 23rd meeting] you mentioned retirement but not resignation...

Silberman: Yes.

Golden: After that happened...your attorney wrote something down on a pad [and showed it to you. After that] … you said retire or resign…?

Silberman: Yes, I think that’s correct.

The trial resumes Monday and is expected to run through Tuesday.

Defense Damages Racial Discrimination Claim

Defense Attorney John McNeill spent most of the day trying to weaken the resolve of former Booker T Washington Principal Peggy Petrilli, without much success. But he scored major points for the defense in the process.

McNeill pounded home the point that when it was Fayette County Schools Superintendent Stu Silberman's choice to replace Petrilli at BTWA, he chose Jock Gum, a white man. But the folks who selected Wendy Brown, an African American woman, as the permanent replacement as principal, that decision was made, according to the law, by the school council which was mostly white and had as members several folks from Petrilli's leadership team. That is a critical element for the jury to find for Petrilli on the charge.

McNeill spent a good part of the morning trying to establish in the mind of jurors that Petrilli was slow to bring racism to her list of complaints. Throughout the testimony McNeill offered a litany of examples where Petrilli could have, but did not, mention race among the reasons for her resignation. Petrilli rejected the notion by citing places where racial issues were inferred, while McNeill forced her to admit that the specific language was missing from her resignation, various emails and efforts to find other employment and an interrogatory where she had to list all of her complaints against Silberman.

McNeill also extracted evidence for the jury that a number of Booker T Washington students were moved to a split 2nd grade/3rd grade classroom but that parents were not informed that the students received only 2nd grade curriculum in the class, and none of them were subsequently promoted to 4th grade at the end of the year. He inferred in his questioning that it represented poor collaboration with parents and had something to do with better test scores.

Former BTWA Literacy Coach Alice Weinberg and Attorney Jeff Walther also testified.

Here are today's chirps @ Twitter.

Read 'em from the bottom up.

Follow the case in real time at Twitter/reday000

Reday000Golden conclues. Court in recess until morning. Judge warns...trial is moving slower than anticipated.

Reday000McNeill concludes. Golden redirect.

Reday000McNeill continues his cross examination of Peggy Petrilli.

Reday000Court resumes

Reday000Walther testified the he advised Petrilli that cost of defending would be $25 K + and that's only through hearing level.

Reday000Walther says district investigations typically are concluded within 20 days.

Reday000Walther excused. Court takes 15 min recess.


Reday000Walther explains what it takes for a principal , non-KEA, to sue while unemployed. No income. High fees.

Reday000Weinberg: It was very obvious to me that Jessica Berry and the Clarks wanted an Afr Am principal

Reday000Weinberg says Stu threw Peggy under the bus.

Reday000After cross - Weinberg excused. Golden calls Attny Jeff Walther.

Reday000After side bar judge announces the court is going to take 2 witnesses out of order. Golden calls Alice Weinberg.

Reday000I get the feeling McNeill is just warming up...expect him to dominate much of the afternoon

Reday000Court resumes with Petrilli back on the stand for cross examination from McNeill

Reday000By law, it was the council, not Silberman, that chose the permanent replacement, a black female.

Reday000McNeill effectively argues that when Silberman chose the interim replacement it was a white male.

Reday000Golden must prove that"Petrilli was replaced by a person of a different race"

In this morning's cross, McNeill took dead aim at the racial discrimination charge.

Reday000Court in lunch recess....McNeil continued to score points related to the circumstances surrounding resignation.

Reday000Court resumes

Reday000Shout out to FCPS BOE member Amanda Main Ferguson who is in attendance.

Reday000McNeill pounds on the fact that none of Petrilli's present claims came up in her resignation letter or efforts to get job in Jessamine Co

Reday000...shows effective coaching.

Reday000Petrilli keeps cool and faces jury not McNeill despite his suggestion to the contrary.

Reday000Petrilli under fire as McNeill tries to shake her testimony.

Reday000Here come da Judge.

Reday000McNeill will try to shake Petrilli's characterization of events in front of the jury.

Reday000The case will resume with John McNeill's cross-examination of Peggy Petrilli. The show's about to begin.

Reday000Petrilli v Silberman Day 3 is about to begin.

Instructions for the Jury

In the matter of Petrilli v Silberman, every juror has pledged to listen to the evidence, but they have also pledged to make their final determinations based upon instructions they will receive from Judge James Ishmael. What are those instructions likely to be?

A couple of the instructions will be simply procedural:

• Immediately chose a foreperson
• Nine or more must agree on any particular verdict

In all cases the jury must be "satisfied from the evidence as a whole" that the evidence favors either former Booker T Washington Academy Principal Peggy Petrilli or that it favors Fayette County Schools Superintendent Stu Silberman. And there are a few claims that require resolution.

After hearing all of the evidence as presented by Plaintiff's Attorney J Dale Golden and Defendant's Attorney John McNeill the jury must weight the evidence with regard to whether the evidence satisfies certain legal elements. In court documents, the plaintiff's asked the judge to instruct the jury...

On Retaliation

The jury must find for Peggy Petrilli if the following are true:

• Petrilli complained about racial issues
• Silberman knew about Petrilli's complaints
• Silberman took an employment action adverse to Petrilli, and
• There was a causal connection between Petrilli's complaint and the adverse action.

"An employment action adverse to Peggy Petrilli includes any conduct which well might discourage a reasonable employee from reporting racial issues."

The same instructions will be considered separately relative to the Fayette County Board of Education "acting by and through its agents representatives, and/or employees."

On the Whistleblower claim

The jury must find for Petrilli if the following are true:

• That Petrilli reported information regarding actual or suspected violation(s) of law, mandates, rules, and/or policies of the Fayette County Board of Education, its agents, representatives or employees;

AND

• That the Fayette County Board of Education acting by and through its agents, representative, or employees, caused Petrilli to be subjected to reprisal, or directly or indirectly used official authority or influence against her as a result of her report(s) to the Fayette County Board of Education, its agents, representatives or employees.

On the Constitutional claims

There are a few separate constitutional claims that require the jury to find for Petrilli if they believe her rights were violated under different sections of the constitution.

• The right of enjoying and defending her life and liberties, or
• The right of seeking and pursuing her safety and happiness, or
• The right of acquiring and protecting her property

Or, under a different section, if the jury believes that Stu Silberman, or the board violated Petrilli's rights...

• By exercising absolute and arbitrary power over Petrilli's life, liberty or property

Or violated her rights to

• equal protection, or
• due process

On Racial Discrimination

The jury must find for Petrilli if they are satisfied by the evidence that...

• Petrilli was subjected to an adverse employment action
• Petrilli was qualified to be principal of BTWA, and
• Petrilli was replaced by a person of a different race

The plaintiff asked the judge to instruct the jury "that an adverse action can include, but is not limited to, a constructive discharge. A constructive discharge is when an employee finds the working conditions so intolerable that a reasonable person would feel compelled to resign.

If the jury finds for Petrilli, they must then turn their attention to compensation. Petrilli is asking for damages

• for mental pain and suffering...not to exceed $3 million
• Lost wages not to exceed $500,000
• Punitive damages as may be fixed by the jury

SOURCE: Court documents, Photo by David Perry/H-L

Pertilli v Silberman: Day 2

It completely, totally and irrevocably damaged my career.

I was so shocked about it.

I couldn’t believe Stu would cave in

… and make a political decision.

It was life changing.

---Peggy Petrilli

Jim Warren provides a nice piece on the opening day of Petrilli v Silberman in today's Herald-Leader. This week, sitting in Judge Ishmael's courtroom, feverishly taking notes, I'm beginning to better appreciate the skill Warren brings to the storytelling. I'm also beginning to appreciate the grind.

But today's newspapers are squeezing the space alloted its reporters and blogs have no such restrictions. So today I'll chat through Warren's construction and add detail where I can. That might be the best service I can provide.

NOTE: In an effort to capture as many quotes as possible (since Judge Ishmael banned my audio recorder - I'm not complaining, Judge. ...just sayin') I have been typing as fast as my fat little fingers can fly. The result is a bunch of snippets that may read like a stream of consciousness, but I hope will be clear when presented within the context of Warren's story.

This from the Herald-Leader, photo by H-L's David Perry because his are much better than mine:

Trial opens in case of Fayette principal

who alleges racial discrimination

Peggy Petrilli testified in Fayette Circuit Court on Thursday that she wanted to remain as principal at Lexington's Booker T. Washington Academy in 2007, but that Superintendent Stu Silberman told her to either resign or retire.

She resigned in August 2007 and retired later.

"It was unreal," Petrilli told jurors. "I couldn't believe that Stu Silberman would cave in ... and let me go."

Petrilli: "Silberman told me, I know this isn’t true…I’ve never had such a hostile emotional meeting with a group of parents as I had last night….said I could either retire or resign but I could not go back to BTWA. I asked if we could meet with the group…He was very clear…very emphatic that I was to look into retirement and not to go back to BTWA and that I had the choice of resigning or retiring…there were multiple phone calls from Silberman and [Director Caremn] Coleman …wanted decision on what I was going to do Monday morning…"

Petrilli is suing Silberman and the county board of education for damages. She says that the superintendent forced her out to appease a small group of parents at Booker T. Washington who wanted an African-American as the school's principal.

But Defense Attorney John McNeill countered in his opening statement to the jury, “This case is about Ms Petrilli not wanting to take responsibility for her own short comings...The facts will establish… rather than Stu forcing Peggy to leave…she voluntarily resigned.

Petrilli said that she had wanted to remain as principal because she loved her job — "It was my passion," she said — and because she needed the income as her family's main breadwinner. She said she now teaches at Eastern Kentucky University and does consulting work, making a little more than half her original salary.

Petrilli: "I was out of work about a year…April 08 I applied at [EKU]... and in late April was offered a teaching position…I have to drive to Corbin…It started in late August."

Attorney John McNeil, who represents Silberman and the school board, painted a starkly different picture during his opening argument Thursday.

McNeil told jurors that Petrilli resigned voluntarily because of problems she was having as principal, not because she was forced out.

She raised no objections or reservations in the resignation letter that she signed, McNeil said; he noted that her attorney helped negotiate the terms of resignation and that Petrilli herself helped negotiate the wording of a press release announcing her departure.

McNeil further argued that there was no effort by black parents at Booker T. Washington to remove Petrilli and replace her with an African-American. Indeed, he said, parents initially were pleased when she became principal because they had heard of her success in raising test scores when she was principal at Northern Elementary School.

"There was no racial issue about Peggy Petrilli," McNeil said. "No one in the community wanted her to be fired."

McNeill argued to the jury that "[Petrilli] told [her former director and mentor Bob] McLaughlin she didn’t think she was the right fit for BTWA…said maybe this isn’t the job for me...[and that was] at end of her first year. In May...meeting with Director Lisa stone…Meeting didn’t go well…criticisms…an email generated as a result of meeting... But Stu was high on Peggy…wanted her to succeed…She talked to Stu about the Stone meeting…wondered if she was right for BTWA…wonder if I need to worry more about mgmt issues...In July 2007…before….Peggy emailed [former FCPS principal Judy] Hunter [then a principal in] in Scott County…looking for other opportunities…This was not an involuntary parting"

Rather, McNeil said, Petrilli stepped down because parents became disillusioned with her practices, such as holding students back in grade. But McNeil insisted that ilberman continued to support Petrilli and offered to arrange for her to return to Northern, an offer she declined.

Petrilli spent more than three hours on the witness stand Thursday as her attorney, J. Dale Golden, led her through her version of events.

McNeil raised a steady stream of objections to Golden's questioning, leading to numerous conferences between the attorneys and Circuit Judge James Ishmael.

At one point, Ishamel cautioned the lawyers to "talk to me, not each other."

You say, "Secret Meeting. I say, "Objection!"

The judge offered a smiling but meaningful admonishment. "Let’s watch it...now you guys can come up here all day if you want..." implying that the trial might go on for a long time at its present rate.

I know I messed up and missed one, at least, but here's my count of the afternoon side bars, which pales in comparison to the number of objections raised by McNeill:

12:50 Petrilli Called

1:19 side bar

1:21 resume

1:30 side bar

1:34 resume

1:43 side bar

1:44 resume

1:48 side bar

1:49 resume

1:56 side bar

2:00 resume

2:10 side bar goes into afternoon break

2:35 Petrilli resumes

2:50 side bar

2:51 resume

2:58 side bar

3:10 resume

3:12 side bar

3:13 resume

3:18 side bar

3:21 resume

3:27 side bar

3:32 resume

3:39 side bar

3:47 resume

3:48 side bar

3:50 resume

3:53 side bar

3:55 resume

4:02 Golden finished with Petrilli

Every time Petrilli said the words "secret meeting" McNeill objected. Finally, Judge Ishmael asked her to refer to it as "the meeting on August 22nd."

In his opening statement, Golden said Petrilli rapidly raised test scores during her two years at Booker T. Washington, received nothing but high scores on evaluations, and continued to received congratulatory messages from Silberman until a few weeks before her departure.

But Golden contended that a small group of parents at Booker T. Washington were unhappy from the moment Petrilli arrived at the school in 2005 because they had not been allowed input in the selection of the new principal. Eventually, the group's "sole agenda was to get rid of Peggy," he said.

Golden said he would present testimony that some parents at one point threatened to picket the school or complain to the news media if a change wasn't made.

The Catalyst

Petrilli testified: "Jessica Berry was a mom of a kindergarten student in 05…very vocal...very strong-willed mom that really, from early on…was very antagonistic...would hold meetings with parents…was very unhappy with me...Berry was at school pretty much every day…in the office…In the summer after my first year, 06...we knew we didn’t have every policy we needed…I brought a stack of every policy we needed…Berry moved that we postpone passing any….called a meeting in July [to try] again. Berry and [another mom, Alva] Clark wanted one policy at a time throughout the year...Berry was upset that we implemented a policy that parents must sign in…it really was security issue…parents were to sign in and wear a name badge...They wanted an African American principal and I wasn’t aware of this when I accepted the position."

The catalyst of her departure, Petrilli offered, was a decision she made to act on a report from a teacher that Alva Clark's child did not live in the BTWA district in violation of board policy. Petrilli said she referred the matter to Director of Pupil Personnel Gary Wiseman who investigated and sent a letter to the Clarks stating that their child was out of district.

"Mr Clark stormed into my office and demanded I rescind the letter…He was very hostile…but the letter came from the DPP...I can’t rescind this letter…I’ll give you an out of area form…" Petrilli told the jury that Mr Clark responded, "I fight for a living…I’m very good at it." Petrilli continued, "As soon as Mr Clark left the office I immediately contacted [secretary in the elementary director's office] Norma Welch...[and informed her] Mr Clark is on his way down to central office and is very angry." Petrilli testified that she had reported that she had been discriminated against in June. "Clark made it very clear he would go after me…I felt Mr clark was after me…"

Also at issue was a Herald-Leader article from August 26th. In the article, Silberman declined to discuss Petrilli's departure saying it was "a moot point" because she had resigned.

But Golden tried to establish for the jury that the words were Silberman's and not Petrilli's asking her, "Did you read that newspaper article?"

"Yes I did, Petrilli said.

Golden asked, "Did you say that to him?"

Petrilli responded, "No, I did not."

Golden: "As of the date of this article, Aug 26th, had you ever told Silberman you were leaving?

Petrilli: "No, I had not."

Petrilli: "[I was] told...I needed to have...either my resignation or my retirement letter on his desk by 8 am Monday morning. I didn’t do that. I called [Kentucky Association of School Administrators Executive Director] Wayne Young. He got me in contact with [attorney] Jeff Walther…I wanted to stay…I had conversations with Mr Walther …I didn’t want to leave…it was the best start to a school year ever…[when Petrilli had not responded by 8 AM] Silberman was demanding I make a decision by 3 PM because he was meeting with the faculty…if I didn’t resign or retire...he wouldn’t promise...but I’d be demoted to a teacher. I knew I hadn’t done anything wrong….I feel like I was compelled to provide a letter of resignation…"

There will be no testimony in the case Friday. The trial will resume Monday with cross-examination of Petrilli.

Court Documents posted at the Herald-leader:

Affidavits of Alice Weinberg and Leigh McCauley in the Peggy Petrilli case

Petrilli's response to request for summary judgment (PDF)

Exhibit: Letter from Fayette school board attorney to Petrilli's attorney

Fayette school board attorneys' motion to get more answers from Peggy Petrilli

Exhibit: Petrilli's answers to the Fayette school board attorneys

Report on investigation into allegations against principal Peggy Petrilli

Peggy Petrilli's lawsuit against the Fayette County schools (.pdf)

Defamation claim against Fayette schools dismissed

E-mails claimed to be parents' efforts to oust principal

Petrilli v Silberman: Day 1

Right now, I’m not comfortable that
the facts are so undisputed, that I feel comfortable
making a ruling as a matter of law.

---Judge James Ishmael
rejecting a summary judgment during a pretrial hearing

Before today's trial began, Fayette County Circuit Judge James Ishmael addressed plaintiff's attroneys J Dale Golden and Melissa Thompson, and defense attorney John McNeill, in Petrilli v Silberman outlining how he planned to proceed in court.

“I am making no promises to anybody, other than… I’m going to try my dead-level best to listen to this stuff fairly and objectively. And if it’s a factual question, obviously, it goes to the jury. If there’s no dispute of the facts, and…I can make a ruling as a matter of law, then I’ll do the very best I can. That’s all I can promise you… Let’s go to trial. Let everybody put on their best story, truthfully, in good faith, professionally…. I will take a hard look at the evidence as it comes in…”

He repeated those sentiments in court this morning while KSN&C followed along.

8:30am: Judge James Ishmael and attorney discuss procedures for voir dire, challenges and how to handle jurors who are past or present board employees; each side allowed 4 juror strikes.

Attorneys discussed the legal issue of whether or not the BTWA council selected former Principal Peggy Petrilli or if it was Fayette County Superintendent Stu Silberman.

McNeill: argued that the superintendent sends a list of candidates to the Council and the council selects. “When it comes to selecting, the superintendent has no input on that.”

Rather than refuting, Golden argued a different question of law relative to the claim of reverse racial discrimination in Petrilli’s situation saying the legal question was, “[was she] replaced by a person of the other race?”

Ishmael admonished the attorneys. “I expect everybody to be on their best behavior…”

8:54: Jury pool enters, sworn in

9:05: Judge addresses potential jury pool; calls 22 from the pool for voir dire

9:13: Ishmael: Are any of you all employees of the Fayette Co BOE at this time? Have any of you ever been employed? How about immediate family? Any of them employed by the board?

(Several had connections: a bus driver, teacher@ Deep Springs, teacher @ Beaumont, former student teacher from HC, Marching band TCHS, wife’s a teacher, sister was former student teacher, husband is retired bus driver, sister is teacher at Morton...)

"The board and Silberman are a party in this matter… Do you think that if you voted against the board, do you believe our wife’s job would be in jeopardy?" Ishmael asked. "Would that have any effect on your consideration?"

9:24 The first of several side bars with attorneys

9:43: Four jurors with FCPS connections were excused and replaced. (Of the new jurors, one had a sister who was a special education teacher at several schools now retired. Another has a mother who is a special education teacher at Garden Springs)

9:48: Ishmael discussed the length of the trial: "We are now anticipating this will take six days, Wednesday & Thursday of this week, and all four days (M-Th) next week for trial. Can you be available? ...Were any of you excused officially before now for any of these dates?" (One juror excused; Another juror excused for medical reasons.)

10:00: Five more excused for medical, scheduling and other unknown reasons.

Two new jurors were called. One, a Lafayette teacher was excused.

Ishmael questioned the jury pool on issues related to their health, hearing, language…

“We’re going to be conducting this trial on good ol’ Kentucky English... Any language concerns?”

He outlined the civil case, the time period and that Petrilli had been principal at Booker T Washington Academy and following her departure is now seeking damages.

10:22: Ishmael asked, “Anybody know anything, heard about, or read about anything about the case…names, circumstances, date, anything?"

A half dozen jurors approached the bench individually to explain their background knowledge and one was excused.

Prior to calling for a 15-minute break, the judge gave the jury a strong admonishment against discussing or researching the case. “Don’t look at the news accounts…TV…don’t listen to radio…do not read anything about it in the morning paper…don’t look it up on the internet. It is very important.”

During the break I chatted with Jim Warren of the Herald-Leader.

11:17: When court resumed a juror with a 5-month-old child was excused.

The judge introduced Petrilli and her attorneys, followed by Silberman and his attorneys. “Let us know if you have knowledge of any of these folks,” Ishmael said.

He continued questioning, “Do you pledge to this court …[that] you will base your verdict on the evidence and instructions of the court? …We‘re not gong to Google. Everybody pledge not to do that?”

11:28: He further asked about proof in the case, and the potential for awarding damages. “Anybody uncomfortable with anything I asked or anything I didn’t ask?”

A juror was excused – for being the wife of one of the attorneys.

At the end of the morning session Dale Golden began his questioning of the jury.
“How many people believe there’s too much litigation today?”

He questioned about service on the PTA or school council.

Golden’s introductory comments to a question drew an objection form McNeill: “Is there anybody that believes that there is no such thing as reverse discrimination?” Golden asked.

“Anyone here believe that all resignations are voluntary? ...Anybody believe its’ wrong to file a lawsuit? ...“Is there anybody who would have a problem awarding damages for mental anguish? …punitive damages?”

“Does everyone here agree that the law on discrimination should be applied equally?”

That drew another objection from McNeill and Judge Ishmael decided to break for lunch.

Lunch Break:

Before resuming Judge Ishmael called Richard Day of KSN&C to the bench to outline the allowable procedures during the trial in the courtroom.

1:25pm: Golden quickly concludes voir dire.

Side bar. A juror was struck and replaced.

1:33: McNeill begins voir dire. "Have you or... any member of your family ever sued someone? Have any of you ever read any education blogs that have covered this issue? Does anybody feel like the Board of Education is entitled to less [because they are a government entity]? If yo find the case is not proved...even if you have sympathy [for the plaintiff]...will you decide based on the facts?"

McNeill asked potential jurors if they had philosophical problems with the concepts of soverign immunity, or that a superintendent might enjoy individual immunity.

Then McNeill took a little poll asking the panel their opinion of Silberman by a show of hands. Of the 22 potential jurors voting, my best count was...

Silberman is a good superintendent = 7

Silberman is average = 3

Silberman is poor = 0

Judge Ishmael then asked how many had no opinion = 9

McNeill asked how many jurors had never had children in FCPS = 10ish

"Have any of you had a bad experience...[in FCPS] that might influence your decision in this case?"

Two jurors cited problems, both related to Bryan Station High School.

Have any of you ever "had to attend a board of education meeting because you advocated for or against a policy change? ...member of the PTA? ...Booster club? ...believe parents have a right to talk to the principal, teachers [about problems]?

1:55: One juror reacted when McNeill asked, "Does anybody feel like they have been the victim of racial discrimination? Following a side bar with the juror, he was struck and replaced witha teacher at Liberty Elementary, who was promptly excused and replaced.

One juror drew laughter when she responded to a question by saying, "I was brought in to fix the books at Winburn. ...and then realized what she had said.

2:00: McNeill asked his racial discrimination question again.

"Will you wait until you hear all of the evidence [before rendering a judgment]?" do you have a problem with the concept of retailiation...whistleblower?

2:06: "Any problem finding either way...based on the judges instructions...if the plaintiff does not prove her case? Any problem awarding nothing...?"

Side Bar.

2:17: A juror was excused and replaced by an after school worker at Veteran's Park, who was in turn excused and replaced.

2:24: Side bar.

Judge Ishmael called for a 15-minute break saying a legal issue had arisen which needed to be researched. "I'm embarassed about this but I assure you that it is necessary."

3:17: Break

3:51: Court back in session. Side bar with attorneys.

4:09: Ishmael: This is a very unusual case...highly unusual circumstances...[I'm going to] try my very very best to do this right."

We will call our final jury and call it a day.

Tomorrow the trial will move to Courtroom F, 3rd Floor and begin at 8:45 am - expects to end around 4:30-5:00 pm.

A jury of 14 (two alternates) was selected by lot. Of the 12 who finally render a decision, 9 must agree on the verdict.

The jury consists of 3 blacks, 11 whites; 5 men, 9 women.

4:20: Ishmael repeated his admonishment to the jurors not to talk about or research the case and made a few other procedural remarks.

Judge Ishmael informed counsel that he had given permission for Richard Day of Kentucky School News & Commentary and the Herald-leader photographer to take one photo of each witness, and he has allowed one pool TV camera, but will not permit audio recording of the proceedings.

4:32: Adjourned