Lawsuit seeks to ‘void’ superintendent retirement vote
Published 7:03 pm Thursday, July 7, 2022
Editor’s note: This story has been updated with comments from IWCS spokeswoman Lynn Briggs on the payout being left blank in Superintendent Dr. Jim Thornton’s amended contract, and noting The Smithfield Times’ July 12 FOIA request.
Carrollton resident Katie Carter Lemon has filed a lawsuit against Isle of Wight County’s School Board, contending the board’s March 10 vote to amend now-retired Superintendent Dr. Jim Thornton’s contract violated Virginia’s Freedom of Information Act.
Lemon filed the suit on June 28 through her Virginia Beach-based attorney, Kevin Martingayle. It asks that the county’s Circuit Court issue an order “declaring void” the March 10 contract amendments that allowed Thornton to retire a year early. Prior to the amendments, Thornton’s contract had specified he would remain superintendent through the end of the 2022-23 school year.
The School Board initially voted at its March 10 meeting to approve a “proposed amendment” to Thornton’s contract “as discussed in closed session.” When School Board Attorney Pakapon “Pak” Phinyowattanachip advised that to comply with Virginia’s open records laws, the board would need to state publicly what had changed, Chairwoman Denise Tynes called a roughly 10-minute recess. When the board reconvened and took a new vote, Vice Chairman Michael Cunningham read into the record that the board had “agreed to honor” Thornton’s “request to be released from his contract, effective June 30, 2022, in order to retire.”
“Supposedly, there was no business conducted by the Board during the recess because there was no motion to go into a closed meeting, nor any certification of any closed meeting if one took place,” Lemon’s lawsuit states. “From the circumstances, however, it appears that additional discussions and decisions regarding the superintendent’s proposed amended contract took place during the ‘recess.’”
Virginia’s FOIA law requires public bodies proposing to convene a closed-session meeting to first vote in open session on a motion that identifies the closed session’s purpose and cites the applicable exemption in state law from Virginia’s open meeting requirements.
As part of his revised motion on Thornton’s contract, Cunningham stated that the board wished to provide the retiring superintendent with “transition appropriations.” But the “amount and nature of the ‘appropriations’ was not stated or revealed, is not reflected in the minutes, and does not appear to be posted anywhere online,” Lemon’s lawsuit contends.
According to a March 10 memorandum on the subject of “Superintendent Separation Agreement and Appropriations,” Thornton was to receive a “gross payment” representing the “accrued but unused vacation, sick and personal leave calculated at the full per diem rate of reimbursement” included with his last check in June. In the copy provided to Lemon’s attorney on June 23, the “gross payment” line is left blank, though the document is signed by Tynes, Thornton and former School Board Clerk Tracey Reutt. Reutt is now the administrative associate to the assistant superintendent and Jessica Whitlow has taken over as School Board clerk.
“Either the School Board and its members know the precise or at least approximate amount and have failed to reveal it publicly or, in the alternative, they have approved a ‘gross payment’ and ‘transition’ appropriations’ without knowing what they were approving,” Lemon’s lawsuit contends.
The memo further specified Thornton was to return all documents, materials, keys and an Isle of Wight County Schools-owned Ford Taurus on or before his resignation date but would retain access to his school system email files and Google Docs until July 15 for “cleaning out, organization of and filing purposes.”
The Smithfield Times requested the transition amount July 7. Isle of Wight County Schools spokeswoman Lynn Briggs replied July 11 via email, stating that at the time the School Board approved the amended contract, Thornton’s days of leave had not been finalized, which is why the amount was left blank.
The Smithfield Times submitted a Freedom of Information Act request to the school system on July 12 for the specific dollar amount and other documents specifying the “transition appropriations” provided to Thornton.
Lemon’s lawsuit also takes issue with the board’s alleged noncompliance with a FOIA provision that requires the recorded meeting minutes state the location of a board member participating remotely via electronic means. Cunningham had participated via Zoom for medical reasons during the board’s April 5 and April 26 meetings, but the recorded minutes for those meetings don’t list his location.
Lemon’s latest lawsuit is her third against the school system concerning FOIA in the past three years. She’d filed two previous complaints in 2020, both of which, according to past reporting by The Smithfield Times, accused the board of providing insufficient details to the public regarding decisions to enter closed session, and communicating an incorrect start time for board meetings.
Prior to Lemon’s 2020 lawsuits, the School Board had advertised its meetings as starting at 6 p.m., though they technically begin at 5 p.m., with the board then immediately entering a nearly hourlong closed session.
Then-Chairwoman Jackie Carr denied at the board’s Jan. 14, 2021, meeting that members had willfully violated FOIA. But according to the Jan. 20, 2021, order Judge Matthew Glassman issued, school officials acknowledged that “motions to go into closed meetings in October 2020 were not specific enough for purposes of compliance with the Virginia Freedom of Information Act.”
Glassman’s order mandated that going forward, the board’s “personnel report” and addenda referenced in a closed meeting motion would “be described with greater particularity” and that any action to approve decisions coming out of closed meetings relating to the personnel report “shall reasonably inform the public of the matters and decisions being voted upon at the time of and as a part of the voting process.” Glassman also required the board to make “good-faith efforts to post full, official and signed versions of minutes of meetings online as soon as reasonably possible after the meeting minutes have been approved by the School Board.”
Isle of Wight County Schools responded to Lemon’s latest lawsuit on July 1 by filing for a delay in the setting of a court date. According to Martingayle, an Aug. 16 hearing, again with Judge Glassman, has been scheduled for 9:30 a.m. in the Isle of Wight County Courthouse.