Following the advice of legal counsel, the Rosebud School District #12 Board of Trustees voted 3-1 Monday to secure the services of an outside investigator to look into a policy 5015 complaint filed against Rosebud School Superintendent Mike Silverman.
Rosebud School District Personnel policy 5015 covers bullying, harassment and intimidation between employees or by third parties. These are defined as “any act that substantially interferes with an employee’s opportunities or work performance, that takes place on or immediately adjacent to school grounds, at any school-sponsored activity, on school-provided transportation, or anywhere such conduct may reasonably be considered to be a threat or an attempted intimidation of a staff member or an interference with school purposes or an educational function, and that has the effect of: a) Physically harming an employee or damaging an employee’s property; b) Knowingly placing an employee in reasonable fear of physical harm to the employee or damage to the employee’s property; or c) Creating a hostile work environment.
Policy 5015 states that “All complaints about behavior that may violate this policy shall be promptly investigated”, and designates that “complaints against the Superintendent or District Administrator shall be filed with the Board.”
It further states that “The complainant shall be notified of the findings of the investigation and, as appropriate, that remedial action has been taken.” With regards to consequences, the policy pronounces, “Staff whose behavior is found to be in violation of this policy will be subject to discipline up to and including termination of employment.”
Laurence Martin of Felt, Martin, Frazier & Weldon, P.C. of Billings, advised the Board of Trustees to hire an outside investigator to examine the matter in order to avoid a potential lawsuit caused by the District failing to comply with its policy. The complaint against the Superintendent lists Board members as witnesses, as well as numerous witness who are not Board members and incidents outside of the Board meeting, making an in house investigation difficult. Mr. Martin suggested that the findings of the investigation be provided to the Board members, who would then determine whether policy 5015 has been violated.
At Monday night’s meeting, Board Chairperson Kim Wheadon made a motion, seconded by Board Vice Chair Kristin Buck, to hire an independent investigator to investigate the bullying complaint against Superintendent Silverman, as per policy 5015. During discussion, audience member Tabatha Hallman asked if this would include all of the 5015 complaints filed against Mr. Silverman. Wheadon referred the question to Mr. Silverman, who replied, “No.”
Hallman asked Wheadon why not, and Wheadon replied, “At this time we’re just going for legal advice; that’s all I can say.”
The Chair then recognized Vice Chair Buck, who stated that there are three policy 5015 complaints that have been properly filed with the Board. Wheadon replied that the Board is only dealing with one complaint at this time. Buck asked if there are three complaints filed at this time, “how can we discriminate between them?” Superintendent Silverman answered that “each individual complaint is a separate complaint, and must be handled individually, as per the instructions of Felt, Martin, Frazier & Weldon.”
Superintendent Silverman responded, “And I’m telling you that the Board has acted; we have acted on them, these were not filed in the same way.”
Buck said, “When did the Board – show me in Minutes – when the Board voted and acted on those policy 5015 complaints. Because it clearly states, the Board will act. And even in Felt, Martin’s letter, it says the Board will investigate or there will be fault found with the Board. When did the Board act?”
Board Chair Wheadon then called for a vote on the amendment to the motion, which resulted in the motion dying on the floor as the Board vote was tied 2 – 2, with Vice Chair Buck and Trustee Ace Beeler voting in favor, and Board Chair Wheadon and Trustee Julia Ferguson voting against. Board Trustee Dean Sleaford was not in attendance at the meeting.
Wheadon then repeated her motion to hire a private investigator, as per legal recommendation, for the bullying complaint against the Superintendent. When the motion was again opened for discussion, several audience members raised their hands to be recognized by the Board Chair for an opportunity to comment. Wheadon said, “I don’t have to call on the audience.”
Vice Chair Buck responded by informing the Board Chair that to not call on audience members for discussion puts the Board at risk for an Open Meeting law violation, referencing a letter dated September 5, sent to the Board of Trustees from the Meloy Law Firm of Helena. The letter states that the law firm has been contacted by a number of citizens concerned about the conduct of Rosebud School District Board meetings, and that recently the Board has refused to permit public comment on important issues. It further warns that, “Pursuant to Article II, Section 8 of the Montana Constitution, public bodies must afford a reasonable opportunity to submit data, views or arguments prior to agency action and any decision made in violation of this right may be set aside by a district court and persons whose rights have been prejudiced may recover attorney fees associated with the court action.” Wheadon and Silverman both stated that was not the advice they received from Larry Martin.
Wheadon again called for a vote on the motion. Trustees Ferguson and Beeler and Vice Chair Buck voted in favor of the motion, with Board Chair Wheadon voting against.
When contacted by the Independent Press regarding the investigation of the policy 5015 complaints against Silverman, Superintendent Silverman and five School Board members responded with “No comment.” Board Trustee Ace Beeler said, “I think, as a Board, we should follow policy and rules, plain and simple.”