Judge Skelton ignores the premise of the Open Meetings Act- dismisses case

Today Judge Richard Skelton dismissed the case Esrati vs DPS and Dayton City Commission on imaginary legal precedent.

“However, as indicated in the Court’s decision denying the motion for a preliminary injunction, there is no evidence that any deliberations occurred during the bus tour or any discussion of the prospective closing of school buildings.”

There is no provision in ORC 121.22 to qualify meetings based on if deliberations took place.  Common sense also says, you can’t prove what did or did not happen in a meeting if you can’t enter the room.

The video of the actual actions of the task force was in evidence, but never reviewed. The problem with the OMA is that our legislators in Columbus who wrote it, and then kept adding to it, would flunk the third grade reading guarantee. It’s a bunch of convoluted language with references to penalties that never get handed out- mostly because they really don’t want the public to use it to guarantee open honest government.

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Skelton’s decision. Click to download PDF

I’m not going to recount the whole argument- but, I originally filed to stop the bus tour, because that was pressing. I should have filed a simple OMA case- for all the violations- the attempts to throw me out, the actual keeping me out, the banning of audio and video recording equipment. Those are all punishable violations.

I will appeal the case, and hopefully, smarter judges will understand that laws that are only enforceable by lawyers – to protect the general public from bad behavior of people in power, aren’t really protecting anyone.

It’s too bad Skelton never watched the video evidence that the School board lawyer denied the existence of. Because if he had watched it- a 3rd grader would have seen that there was a violation.

Here’s his decision for summary judgement for the defense.

He should be ashamed.

School board to meet illegally tonight

6/22/18, 12:24 PM, Denise Gum, “Confidential Secretary to the Board Office Dayton Public Schools” sent out an email on behalf of William Harris, board president announcing a “Special Meeting–Fiscal Year” to be held this afternoon. Despite multiple warnings from me, the Superintendent et al have not published an agenda in advance of this meeting. It is, if they hold it, an illegal, improperly noticed meeting.

I highly recommend anyone who cares about DPS to go to this meeting and pack their tiny conference room- and force this meeting to be rescheduled properly, with proper notice.

Her notice said:

In accordance with Section 3313.16 of the Ohio Revised Code and File: BD of the Handbook of Policies, Rules & Regulations of the Board, I hereby call for a special meeting of the Board of Education of the Dayton City School District, Montgomery County, Ohio, to be held on Friday, June 29, 2018 at 4:30 p.m. in room 6S-116 of the Administration Building, located at 115 S. Ludlow St., Dayton, OH 45402.

The purpose of the meeting is to allow the Board to vote on recommendations from the superintendent and/or treasurer.

The media is being advised of this meeting in compliance with the Ohio Sunshine Law.

6/27/18, 11:01 PM I sent an email to Superintendent Libbie Lolli, Cherisse Kidd, Denise Gum, John McManus, Jeremey Kelley, Jocelyn Rhynard

Dr. Lolli,
It’s 11pm on Wed.
Your meeting is scheduled for 4 on Friday.
No posted agenda on board docs.

No meeting.
Or I’ll haul you into court again.
This isn’t rocket science- but it is the law. Publish your agenda 48 hours in advance.

If you can’t hire competent people, you should quit

This morning, I sent another email- to everyone on the superintendents distro list:

As of 8:23 am this morning, there is no agenda posted.
This illegal meeting of the board should be cancelled.
If you can’t tell the public what you are discussing 48 hours in advance of a meeting scheduled on June 22nd.
If you don’t understand how notification is critical to the duties bestowed upon you by the state, either resign, or get educated.

If this meeting continues- as planned, you will be facing another lawsuit.
This mickey mouse game needs to stop.

I notified the Superintendent of her failure to post an agenda on Wednesday night around 11 pm.
That would have been too late to meet the 48 hour rule.

I would suggest she be held accountable and given a reprimand by the board.

The public is being insulted by their malfeasance.

If the meeting isn’t cancelled and is held today, I will be adding to my court case, or filing a new one against this incompetent school board.

Wick-Gagnet shows her ignorance of current events online

On another note, in a Facebook war, I posed a comment on board member Mohamed Al Hamdani’s wall.

(it saddens me that I’m following in the footsteps of the Dayton Day-Old news and turning Facebook posts into news)

Al-Hamdani’s original post:

Not surprised by the SCOTUS decision to uphold the Muslim Ban. As a people and as a country we have a long way to go to reach a more perfect union. We will be disheartened for a day and reenergized tomorrow. The fight continues…

And while that issue is very real, SCOTUS dropped another bomb, one that will affect our political junkie Al-Hamdani even more (I couldn’t call him a political beast because it wouldn’t be PC), and I commented-

David Esrati And now you won’t have a union sugar daddy to get you elected either.

This was a reference to JANUS v AFSCME, and stops the forced donations to unions by people who benefit from Union bargaining. It’s a serious blow to labor, and the generally liberal political clout that Unions have.

Board member Karen Wick Gagnet, who has become Al-Hamdani’s puppet, blindly following his lead, responds:

Karen Wick-Gagnet David Esrati … this is a totally bigoted statement. You are a bully and your comment in no way reflects any spirit of humanity in a manner we need to move positively forward. You have again shown your ugly, hateful side.
She is literally clueless. My is this the pot calling the kettle black. This is a woman who was my friend for over 2 decades, and a long time client, who fired me because of my continued scrutiny of a school board in chaos in the hope that they start acting ethically and honestly. The conversation continues

(I have no idea who Kristin Todd is, but she thinks she has something to contribute):

Kristin Todd This attitude is why you never get elected. You’re no better than Trump and equally need to seek counseling. I can provide you with many resources.

David Esrati Karen Wick-Gagnet you think this is bigoted? The ruling to stop unions from collecting dues from all members is going to flip liberal politics on its head, leaving the wealthy to run citizens united full tilt, with no opposition. As to my ugly hateful side, I find it fascinating that you’ve yet to do anything as a school board member other than support fighting losing lawsuits. And, it’s also interesting that when the hose next to you burns down, it’s cleared away in record time. Talk about privilege.
sequential comment:
David Esrati And I’m pretty sure Karen that you had no clue I was talking about the decision Janus vs AFSCME, because you aren’t that bright. Mohamed understood what I was talking about. Maybe, he should give you instructions on Facebook just like he does on the school board. You are good at playing follow the leader.
sequential comment:
David Esrati Kristin Todd who are you? What have you done? You don’t even know what the hell is going on here

sequential comment:

David Esrati Karen Wick-Gagnet read this, maybe you will understand: After Janus, Unions Must Save Themselves https://nyti.ms/2lG0TiA?smid=nytcore-ios-shareManage
nytimes.com
Wick then admits she had no clue what was going on- but continues her bullying with calling me hateful.

Karen Wick-Gagnet David Esrati … I may have not totally understood the issue and for that I apologize. However, the undertones of your original response to Mohamed and your response back to me is full of ugliness (nothing we need more of today). I may not be as “bright” as you, but I would trade any amount of brightness for kindness, love or compassion which is what I wish for you.

David Esrati Kindness is not calling someone a bigot, a bully, and denying my humanity. You don’t do your homework, you don’t read 2 newspapers daily, and you obviously don’t understand free speech, the sunshine laws, or the art of discussion. If I also mentioned  Kennedy resigning, you’d probably have to look it up. Good luck with your “free hugs” approach to everything. And, you aren’t as kind as you think you are. Reread what you said.
Kristin Todd David, darling.. It doesn’t take a “bright” person or someone who has done what you consider success to recognize a person filled with hatred and narcissism. The enire city knows that of you. You throw tantrums like a child behind your computer screen and we all feel very sorry for you. Thankfully no one has been ignorant enough to vote you into public office. Keep trying.
David Esrati repeat: who are you? What have you done? You don’t even know what the hell is going on here.
You don’t know me. Karen actually does.
And, no one knows you.
Cheers.
Kristin Todd David Esrati I hope whoever bullied you in elementary school apologizes because clearly you’ve carried that into middle age.
David Esrati You mean like you are bullying now Kristin?
Back to the main thread-
Karen Wick-Gagnet You’re right, I should not of used those harsh words. I’m sorry. Out … no more need to use this form of communication, it’s not healthy or productive for me. Best to you as you continue your journalistic practices.
If DPS had competent PR consulting, board members would know better than to engage in this kind of BS with a critic. However, they hired Marsha Bonhart and the Ohlmann Group. You reap what you sew.
I will have a camera at the board meeting this evening, despite my being out of state on business.

Judges rule, Superintendents lie on the stand. Chaos as usual for DPS

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Judge Skelton’s decision, click to download full pdf

Judge Richard Skelton issued his ruling around 1:30 today. I was on an airplane headed back to Cincinnati from a quick trip to Tampa.

I went live on Facebook from  the airport, and then spent the trip back to Dayton talking the case over with friends who know mire than me, and calling the Ohio Attorney General’s Open Government Unit.

The decision was a split. I won on the major issue of if the task force was a public body and had to comply with the Open Meetings Act. That was a major hurdle- after the amount of BS the defense threw at the Judge claiming it wasn’t.

However, the judge refused to offer a temporary injunction banning the board from acting on the school closings because he said I failed to prove that the bus tour engaged in deliberations.

First, how could I tell the judge what happened in a meeting I wasn’t allowed to attend?

And, second, since the issue wasn’t subject to the privilege of executive session, the meeting was illegal.

But, Lolli said on the stand, they just observed and got briefed. The Judge created some kind of third kind of meeting- that isn’t defined by law- of an “information gathering session” which he thinks is exempt from public scrutiny. Here he makes an error. The contents of a meeting that isn’t open- and isn’t covered by executive session rules- is illegal. Period. (if any of you want to transcribe her lies, and put the time code of what she says and put it in comments- I’d be very appreciative).

You can watch the video of the court proceedings and hear Lolli use the “noise of the bus” as an excuse to say no discussions took place. Only problem is, the newspaper reporter, Jeremy Kelley of the Dayton Daily News wrote an article that day that said discussion did take place:

When the bus arrived, acting DPS superintendent Elizabeth Lolli said any members of the group who were tied to Dayton city government should not take part in the tour. City Commissioner Jeff Mims said that was because of “legal issues we’re dealing with.”

The remaining members of the task force briefly toured Valerie Elementary’s kitchen, gym/cafeteria, mechanical rooms and one classroom that was not in use. At 52 years old, Valerie is one of the few schools that pre-dates DPS’ building boom of last decade.

Lolli and associate superintendent Sheila Burton gave task force members detailed data on where the students attending each DPS school live, to show population concentrations, and how many students are traveling across the city each day.

As the task force headed back to the bus, Lolli told the group that legal counsel for the school district had advised the task force to stop the remaining school tours.

The group’s bus then drove to the two remaining schools, Meadowdale and Wogaman, stopping in each parking lot for a few minutes to hear information about enrollment numbers and each school’s physical condition. At each stop, one or two task force

members asked questions seeking clarity on the data. But the task force members did not leave the bus, and eventually returned to DPS headquarters.

Source: Dayton schools: Task force halts planned tours after challenge

As far as did they violate the law- it’s obvious they did. Why the judge refuses to stop them from adopting resolutions based on illegal meetings is beyond me.

The board is also trying to hastily hire Libby Lolli tomorrow night at 5pm. I highly recommend all of you come out and suggest that they haven’t done their due diligence or provided the public enough time to review the contract or the terms. Hiring a superintendent in the midst of turmoil is exactly how the last bad decision to hire a superintendent got made.

School board fails to properly post Lolli contract 48 hours in advance

The 2nd worst district in the State fails publishing agenda 101 with the inability to post the contract for public review 48 hours in advance of the meeting. All other documents are properly linked and openable.

This rush to hire Lolli, with an announcement on Friday Mar, 16, 2018 at 5pm instead of after coming out of the legal executive session on Tuesday Mar 13, 2018, smacks of a protective move to Lolli for giving testimony on Thursday Mar 15, 2018 in my lawsuit trying to force compliance with the Open Meetings law- on the issues of school closing.

This is yet another example of failure to follow and comply with the law, and a reckless disregard for the people of Dayton, and why the board should be removed from office.

UPDATE

right after I posted this- I realized I didn’t show that all the other links worked. So here is a longer video, with the rest of the agenda items clicked on- and opening.

DPS Chaos and the secret agenda Lolli won’t tell you about

Interim Superintendent Libby Lolli likes to show projections of declining enrollment predicted by consultants as the driving force for “rightsizing” the district.

Don’t believe a word that comes out of her mouth.

If you want to know why enrollment is dropping, and will plummet after her grand plan is implemented (if it even can be) is that the parents are tired of being shuffled around like playing cards.

I’ve said it before, the enrollment drop started when outgoing Superintendent reconfigured buildings at the last minute to create the three middle schools. Parents at high performing K-8 Schools like Horace Mann, Eastmont, Wright Brothers, Eastmont, Valerie were unhappy about having to send their kids to the three new middle schools: Wogaman, EJ Brown and Wright Brothers. Then we added 7-8 to Belmont and Meadowdale HS. Then, the next year, we went to 4 bell times- screwing with bus times for parents with multiple kids in different schools. No warning, no planning, no discussion. You could have to get kids ready at 4 different times. Hello?

Lolli obviously likes Junior High Schools- because she’s willing to gut both the Girls academy and Dayton Boys Prep- by scrapping their 7-8 as well.

The only school and parents she’s wise enough to leave alone is Stivers.

But, that’s only half the crazy-train.

Obviously, Lolli doesn’t understand how we managed to lift the deseg order- with open enrollment. Now, she’s going to start by closing Valerie Elementary- move it over to the Meadowdale elementary building, rename it Valerie, and then scrape Valerie. OK- no problem with that- except, she’s going to tell Meadowdale parents- you have to send your kids to the building closest to your home- while, not? telling that to Valerie parents? Can we say discrimination? Or, tone deaf? Take your pick.

We knew from the get-go that Valerie was a goner- it’s the oldest building in the district except for Stivers- that needs major renovation. And, closing it isn’t the end of the world, nor is the middle school plan- except that it probably guarantees losing at least another 500+ students overnight to charters or moving out of the district or vouchers.

CJ is saying THANK YOU very much.

But, the other moves- closing Jackson Center, which the district just reopened to move the Longfellow kids to, is a flat out handout to the Dayton Metro Library who just found out the people who own the former Delco site across the street aren’t giving them the land for free. $50K an acre hurt their pocketbook too much– so they’ll just move across the street to Jackson Center site- and pay to scrape the building for the district. Remember, library director Tim Kamblitsch was on the task force… now you know why.

The other plan is to move HQ from Ludlow 1 to Ludlow 2. Ostensibly, this is because Ludlow 1 needs $2m in HVAC repairs and is too costly to maintain. Sheila Taylor was almost in tears about losing the “community room” – board room, which DPS employees built with their own hands. Hint- you wouldn’t need such a big room if you didn’t keep screwing up and causing the entire community to come down to scream at you.

Moving the 150 odd people across the street will still have costs, but, don’t worry, just like Jackson Center, they’ve got someone who wants that land and parking lot behind the building… can anyone spell S-I-N-C-L-A-I-R. I can. And you can bet your last dollar that they get it for a steal. As to parking for DPS staff, don’t worry- the district owns the lot down Ludlow past 3rd Perk and the old Avenue Lounge- a block away.

And, we’ll move the 20 or so hard core troublemakers who were doing drill and fill online “learning” as an alternative to suspension, into Ludlow 2 with the HQ staff should keep things interesting. Considering Ludlow 1 implemented key card access on the elevators to the upper floors- for security, how wise is it to bring our most troubled kids into the HQ?

Speakers at the meeting tonight all got to talk as long as they want, except me. Rev Harris thought he’d try to infringe on my 1st Amendment rights and interrupt me and called for my removal. Director of Security Richard Wright made a show of coming out to do Harris’s dirty work, but as a former Dayton Police Officer who knows the law, and knows my record on winning lawsuits, didn’t take it past belly bumping. Kudos go to new School Board Member Jocelyn Rhynard for stepping up and saying she’d like to hear me out, and that I should have the right to speak. A teacher told me that Al-Hamdani also said something to that effect, but I didn’t hear him. Rhynard scores points. McManus, who should know better just sat there like a stupid caricature from central casting as a stuffed suit. Very disappointed in the man who wanted to be president and is vp.

Standing in the back of the room was Brian Wildermuth, the board lawyer who is managing my case and billing them out the wazoo. He was probably there to meet with them in Executive session to discuss his loss in the former treasurer Craig Jones case. The board will have to decide to appeal, to pay Craig, or to hire him back. Wildermuth will tell them to appeal so he can keep milking his cash cow.

Lolli making a presentation on rightsizing the Dayton Public Schools District with input from the illegal task force

Lolli tells everyone that the Task Force weighed in on the issue

Judge Skelton set a hearing in my case for Thursday at 3pm. The only two issues to be addressed will be is the task force a public body that had input and did they have a secret meeting. Considering Lolli put up slides including the task forces input, the first issue is now resolved. The second issue has video tape- and unlike the tape of the Dunbar Thurgood brawl, this video is crystal clear. Wait for the ruling that they violated the Sunshine laws- and then apply this rule to the issues of “Right Sizing:”

From ORC 121.22

(H) A resolution, rule, or formal action of any kind is invalid unless adopted in an open meeting of the public body. A resolution, rule, or formal action adopted in an open meeting that results from deliberations in a meeting not open to the public is invalid unless the deliberations were for a purpose specifically authorized in division (G) or (J) of this section and conducted at an executive session held in compliance with this section. A resolution, rule, or formal action adopted in an open meeting is invalid if the public body that adopted the resolution, rule, or formal action violated division (F) of this section.

Section F:

(F) Every public body, by rule, shall establish a reasonable method whereby any person may determine the time and place of all regularly scheduled meetings and the time, place, and purpose of all special meetings. A public body shall not hold a special meeting unless it gives at least twenty-four hours’ advance notice to the news media that have requested notification, except in the event of an emergency requiring immediate official action. In the event of an emergency, the member or members calling the meeting shall notify the news media that have requested notification immediately of the time, place, and purpose of the meeting.

The rule shall provide that any person, upon request and payment of a reasonable fee, may obtain reasonable advance notification of all meetings at which any specific type of public business is to be discussed. Provisions for advance notification may include, but are not limited to, mailing the agenda of meetings to all subscribers on a mailing list or mailing notices in self-addressed, stamped envelopes provided by the person.

They will fail the above tests, and the whole process will be dead in the water. And the question is if the next level penalty will be applied:

(4) A member of a public body who knowingly violates an injunction issued pursuant to division (I)(1) of this section may be removed from office by an action brought in the court of common pleas for that purpose by the prosecuting attorney or the attorney general.

It is my hope that Open Government Unit of the State Attorney General decides that the actions of the elected officials who continued to meet, despite multiple warnings, warrants their removal and Mohamed Al-Hamdani, Jeff Mims, William Harris and Robert Walker all find themselves out of office.

Time will tell.