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.

Petrilli v Silberman Day 5

This long summer continues in Judge James Ishmael's Fayette County courtroom. And the day ended with an announcement from the court that it may well go on even longer. Jurors were warned to look at their calendars for next week as it currently does not appear that attorneys J Dale Golden and John McNeill will complete there examination of witnesses and closing arguments before Monday.

The plaintiffs scored some points today, but the defense continued to give jurors a narrative to explain away Peggy Petrilli's claim that she was forced out of her post at Booker T Washington Academy.

The interim principal who followed Peggy Petrilli at BTWA told the jury that "the instructional piece" was actually in good shape at the school when he took over.

Soon after his arrival at "Booker T" Jock Gum was approached by Jessica Berry and Alva Clark for a meeting. They "came to meet me, and greet me, and check me out…and let me know their concerns," Gum testified. But he explained how he quickly explained to them how he saw his mission. "I said to them, if you are looking for someone to come in here and change a bunch of things, I'm not the guy."

Gum told the jury that Berry and Clark had an inordinate amount of presence in the school and strongly inferred they would be taxing for a new principal to work with. He said Berry was "very opinioniated" and that on more than one occasion she had flown off the handle. "I just thought the new principal would be better off if those people weren’t there," Gum admitted, but it was a circumstance that he decided it was "just one I needed to live with."

Under cross examination Gum explained to the court that relationship building was necessary to becoming a successful principal. "The trust in your relationship between the school and the parents starts with the principal. If the principal does not have the commmincation…trust with the community…it makes it very difficult" to be successful.

Golden attacked the notion that Gum was sent to Booker T as a "relationship guy" who allowed the children to have candy and at one point snapped, "but that did not get you principal of the year did it?"

Cheryl Jones, a librarian clerk and former member of the school council at the Academy at Lexington provided Golden with his first verification of Petrilli's claim that some parents wanted an African American principal.

Jones told the jury that some council members from the old Academy were part of a group that believed it had been empowered to help in the selection of the principal of the newly forming BTWA and "there were already some feelings... they wanted an African American principal...someone who would work in the community…identify with the children."

Golden: …did Silberman tell …this group …that they would be permitted to select…

Jones: As far as I can remember the goal was to narrow it down to three or four…we had in mind several candidates...but it kind of stopped... along the line…

Golden: …was it your understanding that…they would become the final candidates…and that …wanted an African American

Jones: It was a topic that was discussed

Golden: Did people want an African American…

Jones: Yes

Golden: Where were you in the process when you were told …Petrilli

Jones: I wanna say...actually having some candidates in mind..I don’t think anyone was interviewed…I know we were close...and it was a long process..

Golden: Who told this group…Petrilli would be principal?

Jones: I don’t’know…there was a meeting… key people there and it was announced…

Golden: Were you shocked

Jones: Yes

Golden asked Jones to relate provide some background.

Jones: Over the years I’ve been at Booker T… that’s been an ongoing statement – always…One thing that at the top of the list was men...we need more black men…more role models for kids...kids might think they could reach and achieve…role models…in a more positive light…I think I remember it being more of a want after the Marva Collins thing…[who] we met one on one...showed us that a difference could be made…that there are some top key educators there…

Former Director Bob McLaughlin described himself as Peggy Petrilli's mentor, colleague and friend. He was also her boss at Northern and briefly at BTWA. As a long time school official McLaughlin explained to the jury the historical differences where Petrilli enjoyed great success and Booker T Washington.

"They were two really different types of schools, McLaughlin said, but they had one thing in common; a low percentage of children who were reading proficiently. Northern was relatively new, having been built in the 1960s. Booker T Washington had been in the community almost 100 years and had a very different history.

"One of the major issues at Booker T was establishing trust in a community," McLaughlin said. "Members of the community felt at times like they were not treated fairly by our district." McLaughlin described a long history of problems and an on-going effort by the district to try to establish a trusting relationship.

McLaughlin testified that he warned Petrilli about this history before she accepted the position at BTWA. He said his concern was that for Petrilli to be successful at the level she wanted to be she had to develop incredible relationships first. Then she could move her program.

"I felt like going from Northern…there could be a tendency to think, 'What I did at Northern, I’ll do at Booker T.' I wanted her to know that that was a recipe for failure" McLaughlin testified.

McLaughlin said he "wanted her to understand that there were folks who were very skeptical" and he did not want the Academy to be perceived as just "one more thing we hang out there." I was cautioning her …about the community…the history…and I thought it could be the biggest challenge she faced.

McLaughlin recounted for the jury a conversation he had with Petrilli shortly after her August 2007 meeting with Silbeerman and Coleman. "She felt like she had to resign or retire," McLaughlin said. He told the court that he had raised the idea that "you can just stay." He told her that she'd probably be suspended while an investigation was conducted."She just indicated that just was not a good option, McLaughlin said.

On cross, John McNeill countered Golden's narrative in a point by point manner.

McNeill: When you stopped being a director, did you maintain contact with Peggy Petrilli?

McLaughlin: I did

McNeill: How would you describe your relationship?

McLaughlin: I would describe it as very professional. I was a mentor, a sounding board, a friend…

McNeill: Were you a confidant?

McLaughlin: I was

McNeill: At the genesis of BTWA…were you involved in the planning?

McLaughlin: I was

McNeill: Describe the concept…

McLaughlin: The idea behind the school was…to be a collaborative effort primarily with UK and…other groups. UK contributed a fair amount of resources and ideas [involving] Booker T…and larger community.”

McNeill: After Petrilli became principal, were there any problems with that collaboration?

McLaughlin: There were some challenges. UK had many key players involved…they had some notions of how the school was to proceed. Peggy knew where she wanted to go and how she wanted to get there.

Typically we would have these meetings with the university representatives and after the meeting was over…Peggy would change her mind…and not communicate it to the university. They would hear about it…and call me…and I ‘d set another meeting together …

It hurt communications and it hurt the trust factor…

McNeill: Did these take place on more than one occasion?

McLaughlin: They did.

McLaughlin described that inordinate amount of intervention required of him to mediate between Petrilli and the district office and various other groups. He counseled Petrilli on John Maxwell's The Bob Principle, which essentially says that If everyone is having a problem with Bob…the problem is probably Bob. "I just wanted peggy to understand how important it is to develop those relationships. I was worried about next director "who might not be able to troubleshoot for her," McLaughlin said.

Following brief testimony form CPA Calvin Cranfill on the amount of lost wages Petrilli has suffered as a result of the alleged dismissal former Director (and new Superintendent of Danville Independent Schools) Carmen Coleman took the stand.

Coleman said she was Petrilli's friend since her days at Anne Mason Elementary in Scott County when Petrilli was just starting out at Northern - but she was only Petrili's boss for a little more than a month. Coleman admitted to Golden that at the time she took over as Petrilli's boss, there were no disciplinary issues pending against her. When asked if Buddy Clark ever angrily threatened Petrilli, Coleman responded the she wasn't sure about a threat, but "she definitely felt uncomfortable."

Under direct examination, Coleman testified about the events leading up to Petrilli's alleged resignation.

She described Silberman's reluctance to holding the August 22nd off-the-record meeting without Petrilli present but ultimately did in an effort to forestall a complaint being filed with the Office of Educational Accountability in Frankfort.

Golden: Isn’t it true that Jessica berry was leading the meeting…?

Coleman: She seemed to be.

Golden: …they were very frustrated…?

Coleman: That’s correct

Golden: At the end of the meeting…one individual was very loud…?

Coleman: One individual at the end of the meeting …said something

Golden: Was that Mr Clark?

Coleman: …it could have been…Clark

Golden: And you said you felt like crying

Coleman: I did . Peggy was a friend…

The next day, Silberman and Coleman met with Petrilli.

Coleman: …Aug 23rd I did [contact Peggy]

Golden: Did Silberman indicate to Peggy that some of the allegations were false…?

Coleman: We did.

Golden: And Stu had indicated this in the meeting that night…there’s such a process of checks and balances… [regarding test allegations] there’s no way…so you knew somebody was a making false allegations…?

Coleman: That‘s what we thought….

Golden: [Re: Northern]

Coleman: The day we met with Peggy, yes, he offered her the position at Northern…

Golden: Then Sunday…isn’t it true that there was a cabinet meeting and …suspension of Peggy was discussed…

Coleman: It was…[Petrilli] said she could not go back…wanted to look into retirement…

Golden: From Thursday the 22nd until Sunday, are you aware of any investigation or any new information…?

Coleman: No…Peggy told us she was trying to figure out what to do….She was supposed to call…She said she wasn’t going to school the next day…We wanted to do what she wanted us to do…She had not made a decision…She wanted to talk to her minister..

Golden: …since Silberman meeting [any new allegations?]

Coleman: She had admitted to several items on the list...site based…She said, ‘Yeah this is true”…payments directly made to a teacher for t-shirts…she said, ‘Yeah that was true…”

Golden: With all that information Mr Silberman still offered her the job at northern

Coleman: That was always the intention to help her…

Golden: But Peggy had not done what Mr Silberman had wanted…walk out and go to Northern…?

Coleman: …[she said,] ‘I don’t know what to do’…[I said,] What do you mean you can’t go back there…[Silberman] said you know Northern has an interim principal right now…you’d have to apply and go through the process later…We didn’t want to suspend her…

Golden: The choices were that she could resign or retire…or she’d be suspended…

Coleman: She said she was going to resign or retire and we couldn’t get an answer from her…

Golden: What were you going to do if Peggy didn’t resign or retire?

Coleman: Actually, in the cabinet meeting…[suspension] came up…It was decided that no…we didn’t want to do that….

Golden: You and Fabio went to Peggy’s house…

Coleman: We just wanted to talk to her…we were close to Peggy…worried about her…see what she wanted…what she decided…

Golden: Do you recall on Monday...Silberman making the decision that if she did not resign or retire…

Coleman: She was supposed to call me and she didn’t. The next thing I heard was that she had an attorney and I was out of the loop

On cross examination McNeill got Coleman to clarify the district's actions in consideration of suspension.

McNeill: ...The question of suspension came up…who suggested it…

Coleman: I believe that was our board attorney…She left to draft a letter

McNeill: Did the superintendent follow that advice…to send out a suspension letter that Sunday

Coleman: No he didn’t.

Despite being Petrilli's supervisor of less than two months, Coleman outlined a long series of interventions of Petrilli's behalf that echoed McLaughlin's prior testimony.

McNeill asked her to walk through the BTWA issues she had to handle. Coleman described receiving complaints from the district Title I office, the Gifted and Talented office, the Special Education Department. There was particular concern over problems implemanting the district's Reading First grant because mistakes at one school would jeopardize funding for the entire district, and 11 schools were involved.

To bolster his racial discrimination argument Golden asked Coleman to confirm a state law [the cite for which I did not catch] that indicated of the superintendent, "He shall be responsible for Hiring and …" Coleman said, "Well, I’ve got a problem with where it says "he"… but otherwise had no retort.

Actually, the applicable statute is KRS 160.345(2)(h) which provides:

From a list of applicants submitted by the local superintendent, the principal at the participating school shall select personnel to fill vacancies, after consultation with the school council. Requests for transfer shall conform to any employer-employee bargained contract which is in effect. If the vacancy to be filled is the position of principal, the school council shall select the new principal from among those persons recommended by the local superintendent. Personnel decisions made at the school level under the authority of this subsection shall be binding on the superintendent who completes the hiring process. The superintendent shall provide additional applicants upon request when qualified applicants are available.

So, does the superintendent, technically, hire the principal? You bet. But he or she does not get to select who that is except under special circumstances.

This from Jim Warren at the Herald-Leader:

School staffer backs up Petrilli's claims

Some Booker T. Washington Academy parents wanted an African-American principal in 2005 and were unhappy when they didn't get one, according to testimony Wednesday in Fayette Circuit Court.

Cheryl Jones, a staffer at the school, said in taped testimony that there was a desire for a black principal among some site-based council members at the Academy at Lexington, one of two elementary schools that merged to form Booker T. Washington in 2005.

Jones said the parents had some candidates in mind when their work was rendered "null and void" by Fayette County Schools Superintendent Stu Silberman's appointment of Peggy Petrilli. Asked if she was shocked by the appointment, Jones said, "Yes." ...

Jones' testimony Wednesday was the strongest independent support so far in the case for Petrilli's contention that a group of parents wanted a black principal and were angered when she was named....

A little Petrilli v Silberman Update

The legal processes tick away in Petrilli v. Silberman.

Both parties are involved in depositions these days. A source tells KSN&C that Peggy Petrilli was deposed yesterday. Coming later this month...plaintiff's depositions of Jock Gum, Bob McLaughlin, Carmen Coleman and Stu Silberman.

Hey, wait a minute. Jock Gum?

Gum was not at BTWA at any point when - whatever - events occurred. But he followed Peggy Petrilli as principal at Booker T Washington Academy during the past year.

When you follow someone in a job it is always an interesting experience. You learn things from files and reports. You see how the building was organized and how business was conducted. Then, you map out your own path according to your goals and leadership style.

But what happens mostly....is that you begin to hear from people. Whatever complaints existed before are almost certain to come to the attention of the new principal - and much of it is second-hand and biased; although, not necessarily untrue.

My favorite Jock Gum semi-quote occured when a teacher at BTWA approached him - apparently prepared to unload her concerns and "help" Gum chart a new direction for the school. Jock reportedly said - something like - 'Wait a minute. I'm not a change agent. I'm just here for one year to keep the train on the tracks. You'll want to take that up with the next principal.'

Involving Gum in this case is an interesting choice. What does legal counsel hope his testimony will do? Establishing the climate at BTWA in the immediate aftermath of Petrilli's departure is one thing. But, I wonder. What else is hoped for?

It is surely the testimony of Directors Carmen Coleman and Bob McLaughlin that the district hopes to use to discredit Petrilli.

In Fayette County, directors are line-managers. Principals report directly to their directors. Principals and directors consult regularly on virtually all major issues. The relationship, in practice, is truly collegial and is, in large measure, built upon trust.

In fact, it's hard to imagine that much gets past a good director. They are the district firefighters. Whenever there is a complaint about a school, it goes to the director. Directors then bring the concerns back to the principal and they work together to resolve whatever issues exist.

If there are a lot of complaints about a school, the director knows it.

But while all that trusting is going on, the wise principal remembers that directors serve their superintendents - just as directly.

Jock Gum's 4,725th first day of school

Gum shows there are lots of different ways

to be an effective principal

In today's high-pressure, gotta-gain-ten-points-now, "my way or the highway" school environment - Jock Gum reminds us all that educators are first and foremost - in the people business.

This from the Herald Leader, photo by David Perry:

On what he hopes is his last first day of school, Jock Gum found himself spending most of his time in meet-and-greet mode.

Parents, teachers and staff at Booker T. Washington Academy were formally introduced to their new principal Wednesday, more than a week after former principal Peggy Petrilli left.

Superintendent Stu Silberman selected Gum to serve as interim principal, in the hope that his people skills will bring the fractured community together.

"He's very down to earth," gym teacher Jerry Smith said. "He makes a point to make sure you're comfortable before he gets down to business. That matters to me." ...

...He introduced himself to part-time and veteran teachers, lunchroom attendants, and every student he encountered in the hallway. He asked cafeteria staff the number of students that bring their own lunches and how many eat cafeteria food. He asked Smith what materials he needed to make his gym class better and talked with the violin teacher about securing a permanent classroom for his lessons.

"I've promised nothing so far," Gum said. "I've just asked 'What do you need?'"

He poked his head into classrooms and interrupted lessons to introduce himself.

"My name is Mr. Gum, G-U-M, just like chewing gum, and I'm going to be your principal for the rest of the year," he announced to one class amid cheers and applause...

...Gum said he felt like a student on the first day of school.

"This is a traumatic time for this school and this community," Gum said. "My job is to get everybody sitting on the same side of the fence. It'll take a while."...

Jock Gum named interim at BTW Academy

Fayette County Schools Superintendent Stu Silberman announced today the appointment of veteran administrator Jock Gum as the interim principal for Booker T. Washington Academy. Gum, who has agreed to postpone his retirement to accept the position, will begin immediately.

“In my 34 years of being in education, I’ve worked with lots of principals and Jock’s one of the best I’ve ever worked with,” Silberman said. “He has phenomenal people skills and he has a way of bringing people together.”

The long-time principal of Morton Middle School was set to retire this fall after 27 years in education when he was approached about the position. As much as Gum was looking forward to retirement, he said his love of the Fayette County Public Schools and his heart for serving kids led him to stay.

“Because of all the positive things the superintendent and elementary supervisor have told me about the school, the staff and the students and because I’ve lived in Lexington for 65 years and care so much about our community, it was an easy decision to make,” he said.

Ironically, Gum started his administrative career in the two school buildings where he will now work. He taught in the Price Road building (which now houses the intermediate grades of Booker T. Washington Academy) the first year it opened as what used to be called the Bluegrass School for Retarded Children. After two years in the classroom, he became principal for eight years, from 1970 to 1978. When the Price Road building became full, two overflow classes were placed in the Howard Street building which was then Booker T. Washington Elementary and now houses the school’s primary grades.

“It feels right that I started my administrative career there and now I will end it in the same place,” Gum said.

In 1978, Gum left education for 12 years to own his own business. “Then my wife told me that I used to smile a lot more when I was working with kids. She was right,” he recalls. Gum taught sixth grade science at Morton for six years and spent three years as the assistant principal, before becoming the principal for the past seven. Under his leadership, Morton Middle School became one of the highest achieving middle schools in the state. Gum is also the third most senior member of the district Equity Council.

Gum will replace former principal Peggy Petrilli, who resigned last week.

“It’s been a very unfortunate time for everybody concerned at Booker T Washington,” Gum said. “I have both the interest and I think I have the ability to help us stay focused on what’s most important – the education of children.”

Describing his leadership style as “supportive, hands on, child centered and fair,” Gum said his first order of business will be making everyone feel respected and welcome. “I am both willing and able to listen,” he said, hopeful that people will take advantage of his open door policy. Relationship building is Gum’s strength; his catch phrase, “Work hard, play fair and take care of each other,” captures the essence of the climate he helps to build at a school.

Gum, 66, has been married to Henry Clay educator Jan Gum for 46 years. The couple has three children and three grandchildren. Proud to say he’s a product of the Fayette County Public Schools, Gum attended Ashland Elementary, Morton Middle and Lafayette and Henry Clay high schools. Other than the time he spent in the United States Army and the Peace Corps, he has lived his whole life in Lexington. Gum earned his bachelor’s degree in biological science, his master’s degree in geography and his education specialist’s degree, all from the University of Kentucky.

SOURCE: FCPS press release

“Because of all the positive things the superintendent and elementary supervisor have told me about the school, the staff and the students and because I’ve lived in Lexington for 65 years and care so much about our community, it was an easy decision to make,” Gum said in a statement H-L posted tonight. “It feels right that I started my administrative career there and now I will end it in the same place.”.

Jock Gum hangs it up

Jock straps a tie on Greg Worley

Photo by DAVID STEPHENSON

It's hard for Jock Gum to stroll Morton Middle School without being approached by students. And on the very last day of school, it was even more difficult.

At 9:45 a.m., he was mobbed in the hallway by students holding yearbooks. He spent about 10 minutes autographing books, then reluctantly pulled away from the throng of students.

"He's different than most principals," said Alexandra Caudill, 13, a seventh-grader who got her yearbook signed before dashing off to class. "He's down to earth with us, and he knows a lot more about our culture. ... Because he doesn't force us to do things we don't want to do, we do more, we feel like we want to do more than we have to."

Gum, 65, spent this day like any other, but this was a special day, and a sad day for many. It was his last day as principal at the school on Tates Creek Road, where he also was a student many years ago.

This from the Herald-Leader.

~

Congratulations to Jock, a special friend, colleague,

neighbor and care-giver for all children.

He will be missed.