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.

HE SAID, SHE SAID

This is a big case.
And I’m going to give the plaintiffs
an opportunity to put on their proof.

---Judge James Ishmael

Court documents reveal the strategies and legal theories that will take center stage in Petrilli v Silberman this week and next. In two installments, HE SAID, and SHE SAID, Kentucky School News & Commentary will outline each side’s arguments in upcoming posts.

In a June 23rd pretrial hearing in Judge James Ishmael’s Fayette County Circuit Courtroom plaintiff’s attorneys J Dale Golden and Melissa Thompson along with school board attorney John McNeill argued the conduct of the case and what kinds of information the court would allow, and what would not be allowed. In addition, Fayette County Schools Superintendent Stu Silberman was relieved of personal exposure on the discrimination and whistleblower charges in his individual capacity, while he remains on trial in his official capacity.During the hearing, Judge Ishmael focused the attorneys on the "magic date" of August 22, 2007.

This is the date that former Booker T Washington Academy principal Peggy Petrilli either quit or was forced out.

Following Petrilli’s departure as principal, Board Attorney Brenda Allen conducted a 9-month investigation. But the investigation was conducted after the fact. Is the information Allen collected germane to the case?

Previously, District Civil Rights Compliance Officer Barbara Conner had investigated complaints, as well, but those issues did not appear to result in any disciplinary action against Petrilli and were considered by her to be resolved.

Petrilli’s attorneys moved to have it stricken.

What information will Ishmael allow the jury to hear?

Ishmael: The Allen investigation...was conducted fall/winter 07-08. I did feel like, under the circumstances, whatever happened...regarding Ms Petrilli and her position with the board...whatever the investigation showed [after August 22, 2007]...was not part of our proceedings because whatever happened had happened. The investigation wasn't going to change that...

These alleged “bad acts” that were covered by [Barbara] Conner...in 2007 or maybe even before that - that, to me, is a little bit different because it goes into the background and the circumstances culminating, perhaps, in...the meeting with Superintendent Silberman; first with the parents, and so on, and next with Ms Petrilli... To me, before that magic date in August, and after that magic date in August are different...

I know [Petrilli's] argument is that whatever Conner's investigation was, it was basically concluded... [and] addressed...before our magic August time. And I understand that argument. I guess that I'm a little concerned that if we're trying this ...on several theories...how else are we going to put it in context of the reason the board and the superintendent were having these discussions with Ms Petrilli, other than to say that parents had come with their list of grievances?

Golden: 9 months later they came out with [the Allen report]. That report should be off limits...because we couldn't discover that.

Thompson: In fact... even mention of that post-August 2007 testimony by anyone should be wholly off limits because...that would be unduly prejudicial against her.

Ishmael: Well, I've seen some of the correspondence ... and it seemed to me a pretty plausible argument that ... [after] the Superintendent said something about an investigation ... Ms Petrilli said, 'Yeah, I welcome that investigation.' So the fact of an investigation was at the instance of both parties.

McNeill: There were attachments to the report that dealt with matters prior to the time...those things...those specific events...are specifically relevant.

Ishmael: I don't think that what Ms Allen wrote in her report, or concluded...has anything to do with our case.

Thompson: There is a ... 3 page document that was the parent's list of complaints. Those were the complaints that were taken to Stu Silberman and [Director] Carmen Coleman...that initiated the [Allen] investigation...that was not done until ...months later. All of the material stemming from Barbara Conner's [2006] investigation pre-dates that and...[has] nothing to do with the fact that [this] unknown group of parents took a... complaint ...to the [superintendent]. So anything that Barbara
Conner investigated was complete and... resolved and has no bearing, particularly in light of the fact that...Ms Petrilli's supervisors... Bob McLaughlin, Lisa Stone and Carmen Coleman, never put any of this information...in their statutorily mandated evaluation of Ms Petrilli.

McNeill: The evidence is...that even after Petrilli tells Ms Conners...I've taken care of this; the documents show...the same problems that those parents had, continued; from...her inception there at that school and continued on. So it is relevant...

Ishmael: I am going to overrule the plaintiff’s motion to exclude… prior circumstances involving Ms Petrilli, concerns raised by parents, investigations raised by Ms Conner, I think all of these are probative and relevant to the issues here. With this caveat…no new information or charges against Ms Petrilli that arose after August 22nd of 07. We’re not going to get into what Ms Allen said, did, recommended, concluded, or any of that.

[The fact that there was an investigation] may very well come out during the negotiations … between the superintendent and Ms Allen, on one hand, and Ms Petrilli and [her former attorney] Mr Walther on another, and it may come out in some of the emails and letters I’ve seen, or writing on the letters, that one side suggested an investigation and the other side agreed with it, or acquiesced in it, or also requested it. It may come out …that an investigation was conducted, if that comes out during the course of explaining the circumstances in the immediate time period of the separation, I will permit the fact…that the investigation was conducted, but nothing about the details…except as to before the August 22nd date.

Plaintiff’s Subpoenas Served:
Superintendent Stu Silberman
Director Carmen Coleman, now Supt in Danville
BTWA parent Alva Clark
BTWA parent Buddy Clark
BTWA parent Jessica Berry
District administrator Barbara Connor
Former Director Bob McLaughlin
Former BTWA principal, current Interim Director Jock Gum
Former BTWA teacher Alice Weinberg
District administrator Vince Mattox
District administrator Gary Wiseman
Former District Director Fabio Zuluaga, now Assist Supt Fairfax Co VA.
Former FCPS Board Attorney Brenda Allen
Cheryl Jones
Former BTW Counselor Doug Adams
BTWA Prof Staff Asst Margaret Gay
Former Director Lisa Stone
Dr Linda Brown Wright
Dora Hudson
Former BTWA teacher Leigh McCauley
Former Herald-Leader reporter Brandon Ortiz

Petrilli v Silberman Goes to Trial Next Week

KSN&C considers Tweeting the Trial

When Peggy Petrilli abruptly left Booker T Washington Academy in August of 2007, it sent shockwaves through the ranks of school principals in Fayette County and beyond.

Petrilli was Fayette County Schools Superintendent Stu Silberman’s shining example of what a progressive principal should be. Tough; some would say pushy. Innovative. Pertilli was single-minded, with a laser-like focus on student achievement and a my-way-or-the-highway leadership style similar to Silberman’s own.

Petrilli’s task was to prove to the public that strong leadership was sufficient to overcome many social ills that historically plagued schools like Booker T, and become a model of school reform for the state. In January 2005, Silberman told Booker T Washington parents that their children's low-test-score problem was largely the result former principals lacking the ability to motivate the staff. He said principals -- one at a high-scoring school and one at a low-scoring school -- could be switched, and that the scores would flip-flop in two years.

At the end of her second year, following a “secret meeting” between Silberman and parents, Petrilli was suddenly gone.

Did she simply resign?

Was she forced out?

Was her departure made under duress and motivated by illegal reverse racial discrimination?

Was Petrilli retaliated against for some of her strong stands?

Was that retaliation prompted when she blew the whistle on “the wrong” parents for sending their child to BTWA in violation of school board policy against out-of-district attendance?

Did the district stand up for Petrilli? Or did it lay down when parents threatened to go public with their complaints?

Those issues will be resolved by a Fayette County jury beginning next Wednesday.

KSN&C will be covering the trial.

In several upcoming posts, KSN&C will outline the issues and provide a glimpse of the legal theories that will be advanced by the Plaintiff, Peggy Petrilli and the Defendant, Stu Silberman and the Fayette County Board of Education.

We will demonstrate the inordinate level of rancor between the attorneys in this case, which one side has promised to elevate to the Kentucky Court of Appeals, calling for sanctions against the other side.

So stay tuned boys and girls. As Judge James Ishmael has said, “This is a big case. And I’m going to give the plaintiffs an opportunity to put on their proof.”

Note: If my schedule holds up, in addition to blogging, I’m considering Twittering the Trial. Please let me know if that is of interest to KSN&C readers by contacting me or simply commenting below. I haven't been much of a tweeter, but if readers find it useful, I'm willing to try. Find me on Twitter at reday000.

Silberman photo by former H-L photog Janet Worne, Petrilli by H-L.

Comic Slugfest Continues in Petrilli v Silberman.

Golden Claims Harassment.

McNeill Wants Costs Restored.

Ishmael Wants Peace on Earth

and a Chocolate Milk Shake

Jabs and hooks continued in the pretrial phase of Peggy Petrilli's suit against Fayette County Schools Superintendent Stu Silberman.

Today's updates to the Peggy Petrilli Timeline show continued bickering as attorneys argue claims and counter claims before Fayette County Circuit Judge James Ishmael - each side looking for an advantage. Opportunities for one attorney to disparage the other are rarely missed.

The most recent sparring match involves the defendant's attorney John McNeill's subpoena of all of Peggy Petrilli's state and federal income tax forms.

Plaintiff's attorney J Dale Golden responded with a Motion for a Protective Order claiming that the "defendant's do not have a wholesale right to rifle through every part of the plaintiff's life... The defendant's are simply attempting to annoy and harass Ms. Petrilli."

Plaintiff's attorney Melissa Thompson, one of at least three attorneys who have appeared on Pertilli's behalf (Including Timothy C. Feld on the 12th), told the court, "This is meant to pull us around to numerous depositions that are unnecessary."

McNeill claimed yesterday's hearing was unnecessary and moved to have his costs restored by the Plaintiff. "I don't believe I'm going to get the records I'm supposed to get any other way," McNeill said.

"For them to say that 'we've asked Ms Petrilli for the records and that's what she's given us' - Judge, as weve seen in this case before, what Ms Petrilli gives, comes through several stages...It's a revelant issue...I don't even know why we're being dragged down here this morning on a motion for a protective order. In fact, I'd like to get my costs back for having to show up for this because this is clearly discoverable information..."

Ms Thompson countered that if there was any concern over a business loss (as might be shown through the documents) the defendants could have asked Ms Petrilli herself during her deposition. "It seems a bit much to now have to take the deposition of this other character, who didn't prepare Ms Petrilli's return, when if he wants additional records, just ask us for the records and I will do whatever I can to find those additional records."

"I don't believe that," McNeill snapped. "The second thing is that in Ms Petrilli's deposition - as a matter of fact, she does consult, so it is a revelant issue."

"And this is the whole ...problem with discovery in this case..." McNeill continued mockingly, "They don't - 'Well, I don't know. I don't know.' because somebody else comes in for all the hearings....All I want is the documents so that they can't play fast and loose in some shell game about what her records are and what her earnings are."

Judge Ishmael said that by making a claim about lost wages "Ms Petrilli has introduced the issue of income into the litigation."

He also asked the defendant's to be sensitive to the nature of the information saying, "We don't need to be putting this in the newspapers."

Ishmael overruled the plaintiff's Motion for Protective Order, saying "Now, let me buy you all a...

"It's too cold for a milk shake," McNeill interrupted.

...choclate milk shake this morning."

"Y'all have a happy Christmas season," Judge Ishmael sighed, as he held the defendant's oral Motion for Costs in abeyance.

"CompuBox numbers" following the bout showed John McNeill throwing and landing most of the punches.

The next bout is tentatively scheduled for January 20th - at 3pm, so that Attorney McNeill can take his Mother-in-Law to BINGO in the morning.