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Interviewed on one of the television news broadcasts, school board Chair Judy Seliga-Punyko said of the money she and her allies blew pursuing their vendetta against Art Johnston: “That’s too bad--the money that was spent. $43,000. That’s a teacher. And it was caused by misbehavior.”
People usually don’t get upset without a reason. In human interaction, there is often something called a behavioral catalyst. Say, for example, you suspect your significant other is being bullied on the job because some people don’t like your political views. You are upset and react in a way at a public event even the paper of record called “a pretty minor altercation.” The next thing you know, your political foes trot out a list of outlandish, even criminal charges. The whole farce feels overblown and smells of dirty politics. Just beneath the surface of the attack, you can see a bald, political ploy to silence your dissenting voice. Eager to get your troublesome presence out of their hair, your foes even go so far as to throw a poisonous charge of racism at you, based on a gossipy rumor from a party...
Would that feel like a one-way street of misbehavior?
Some people in Duluth vilify Art Johnston and always will, but he had a right to turn the tables on his accusers and fight them in Federal Court. In fact, rather than vilifying him, I suspect a fair number of citizens see him as a hero for doing so.
The feisty little guy stands up against the big powerful establishment and kicks their butts! Is this a great country, or what?
Going into Federal Court was a brilliant legal strategy on the part of the Lone Ranger’s attorneys. Up until that point, the masked marauder had been essentially riding the rails to his ouster. Everything was stacked up in favor of his accusers. They had pulled in a biased investigator recommended by Kevin Rupp, the district’s chief attorney. Rupp was closely aligned with administration, and district administration has for years been in lockstep with the school board majority. None of the testimony in the investigator’s report was given under oath and the report was replete with squishy words like “may have,” and “likely.” The only testimony corroborating many of the accusations was given by the very people who had motive for booting a troublemaker out the door. A hearing was required under State statute, but it wasn’t going to be a real court. It was a going to be kangaroo theatre. The retired judge had no real power to rule on the case; he could only make a recommendation the rope-itchy mob was free to simply ignore.
The Lone Ranger may as well have saved everyone the trouble, took out his six-shooter and just shot himself.
The majority was without a doubt going to toss Mr. Johnston off the Board and he would have had to run up massive legal bills filing appeals and fighting his way up to the Minnesota Supreme Court and probably, eventually (by then, in rags and living in a barrel) to the vaunted realm of the Federal Supremes.
Justice delayed, of course, is justice denied. Many years down the road, after relentlessly tilting at windmills through the State system, the quixotic Mr. Johnston would have probably ended up with a pyrrhic victory: “I WON!” writ large on his tombstone.
He would have won though, eventually, even in State court. The pitfalls of what they were getting into should have been evident to the Board majority from the initial letter sent to them from their attorney, Mr. Rupp. Even the bumbling Rupp tried to warn them that the standard for throwing a sitting member off a school board wasn’t as simple as it appeared in State Statute 123.B.09. That statute states: “A Board may remove, for proper cause, any member...by a concurrent vote of at least four members…”
In his letter, Rupp pointed out that the ‘proper cause’ clause in the statute “is synonymous with the malfeasance and nonfeasance standard prescribed in the Minnesota Constitution.” Nonfeasance was irrelevant, because no one was claiming the Lone Ranger wasn’t showing up for meetings and doing his job. The Board majority’s case against their targeted villain was essentially a charge of malfeasance, which Minnesota statutes define as “an unlawful or wrongful act in performance of a public official’s duties.” Rupp warned the school Board majority that “there is a high standard for proving an elected official’s conduct equates to malfeasance in office.”
In his Federal court filing, the Lone Ranger’s attorneys maintained that malfeasance required an act to be committed that was “wholly illegal and wrongful.”
When you washed away all the mud the majority members were throwing around and waded through all the hearsay and conjecture of the Rice Report, the supporting evidence to make the case for malfeasance just wasn’t there.
The System actually worked.
Taking the case into Federal Court was a simpler, more cost effective way for the scrappy contrarian to fight back. His court filing included two exhibits: the Board resolution calling for his removal and the Board’s so-called Code of Ethics. Loaded words like “bullied,” “intimidation,” and “assault” were stripped away once the argument pivoted towards Free Speech. The focus instead shifted to the motivation and possible legal violations of his accusers. The only exhibit the district’s attorneys offered in the Federal hearing was the garbled Rice Report--the redacted version, no less! That gossipy tally sheet of hearsay just wasn’t going to fly in the Federal Court system.
Despite all their ruffled indignation about alleged misbehavior, there was an underlying desire to silence dissent by the majority members of the school board. Their motive was not pure, here. Anyone who doesn’t think Chair Seliga-Punyko and her four allies embarked on this witch hunt at least in part to rid their lives of a persistent, party-pooping naysayer better be very cautious about entering into any contract negotiations on your own. You obviously can be sold anything.
In the Federal courtroom, all the extraneous charges became secondary to the core issue: whether there was an attempt to repress speech protected by the First Amendment. You’d better have something better than a list of simpering complaints, if you intend to trump Free Speech. You better not come into a Federal court with a document as sloppy and trite as the Rice Report. You’re not going justify taking away someone’s right to speak with some overwrought whining about how the alleged troublemaker “may have” been criticizing the superintendent’s job performance, or some mumbled pap about how this cad “didn’t shove…or maybe he gave me a little shove,” or some whimpering, exaggerated drivel about being “shocked” and “physically afraid” and “having a lot of fear” in a public arena over this alleged little or no shove.
If you want to trump First Amendment Free Speech in a Federal courtroom, you’d better be talking about some real crimes. As it should be, Free Speech is a bedrock right and given great deference in the Federal courts. “Mr. Johnston has a right to speak out. I’m not going to stop that.” Federal judge Davis declared emphatically.
Once again, the majority Board members are busily spinning bunk about their pure, elevated motivations. Suddenly they’ve become very concerned about a “drawn-out, time-consuming and expensive legal process” distracting them from the “education and well-being of our students.” It rings hollow. If they were really so worried about the kids, they wouldn’t have jumped into such a misguided adventure to begin with. They quickly exited the treacherous waters they found themselves in, because they realized they were going to drown.
The hand-rubbing over expense is especially specious, because taxpayer money wasn’t at play here. The legal track the majority members first headed down was all being footed by the public’s dough, because they initiated the action. In contrast, if a party sues the school district, legal expenses are covered by insurance. One of the primary pressures to settle the Federal case was indubitably coming from the insurance company, which could see it had a real dog on its hands. Not only were the insurers going to run up a big charge on a losing case, but Federal Statutes mandate that if a citizen wins a Free Speech lawsuit, the lucky winner gets all his/her legal fees reimbursed.
The potential price tag was enough to give an insurance agent nightmares. Because the district’s lawyers turned tail and got out before the judge had a chance to lower his gavel, the chances of Mr. Johnston recouping money for legal expenses are greatly diminished.
The potential for a legal precedent also must have been prodding Board majority members to reconsider their stance. This loss would have been a landmark decision, forever remembered in infamy as Johnston versus the Dumb School Board Majority.
If the district’s attorneys had any professional integrity at all, they had to be advising their clients to get the hell out.
Proper cause and sour grapes.
The language of State Statute 123.B.09 appears to allow a simple majority of a school board to nullify an election and throw a member off, based on grounds as gauzy as “proper cause.” The very idea is an affront to representative government. Some State legislators have been trying to change the Statute, as they should. Mr. Johnston’s Federal case sent out a clear signal to other power-drunk school board majorities that eliminating a minority voice they don’t like isn’t as easy as MS 123.B.09 makes it appear.
The Duluth majority members are now going to censure Mr. Johnston. The officious charade will be more bad theatre in the auditorium of Old Central, a pathetic attempt to rescue some sense of righteous dignity from the jaws of defeat. Ms. Seliga-Punyko and her allies will essentially give Johnston a bad haircut in lieu of taking his scalp. By rights they owe him an apology, especially for leveling a vicious, baseless charge of racism at a colleague, based on some nasty gossip from a party.
The Land of Civil Rights.
Who would have bet on the Lone Ranger winning when he galloped into this fight on his magnificent white steed? The spirited Mr. Johnston secured his right to stay on the school board--a thankless, self-mutilating job, comparable to a member of the Masochists’ Club winning the right to continue sleeping on his bed of nails. Having sat through many school board meetings, I agree with the News Tribune’s blaring headline: “No Victory For Johnston!”
Of course in another sense it was indisputably a victory--not just for the Lone Ranger, but for democracy. Every Duluth citizen should pause for a moment’s appreciation. There aren’t that many places on this planet where the little guy can stand up to the Big Power Establishment and triumph. The outcome of this legal skirmish was an uplifting affirmation of all our civil rights. No one was able to rob Art Johnston of his right to speak and to represent the people who elected him. I hope this doesn’t sound too corny to all you too-cool-for-school hipsters out there, but God Bless America!