Esrati offers to settle case vs School Board and City on illegal school task force meetings

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Subashi and Wildermuth have billed the Dayton Public Schools $12,500 so far for Libbie Lolli and her boards ignorance of the Sunshine Laws. Click image above to download PDF

The School Board has spent $12,500 of their money defending themselves, to claim that they are entitled to have illegal secret meetings about closing schools in Dayton. The City, using their own attorneys has probably spent about a quarter of that.

There is no question that the task force was a public body, according to the judge, the evidence, all captured on video by David Esrati, is clear, that the task force did meet in their mobile yellow meeting room at the four schools, and the board HQ. All you need to do is watch the video.

So today, I extended the following offer to settle:

Settlement of Esrati vs City of Dayton et al

Hi Brian and John,
I tried calling Brian to make this offer- however his cell phone just disconnects when I call.
To date, the schools have spent $12,500 with Mr. Wildermuth to try to defend those without a defense.
I can’t guess what the city has invested.

Before we go to the expensive part, I’m offering to settle if the parties admit guilt, and that they clearly violated the sunshine laws in the school task force case, on numerous occasions.
First on Jan 9, with the meeting that ended up being cancelled.
Second on Jan 24, when both Mims and Al Hamdani claimed they didn’t have to do this in public.
And multiple times on the day of the tour- where I count Valerie, Meadowdale Elementary and Meadowdale High School, Wogamen and the HQ building- each as a separate meeting.
Basically- each stop of the bus.
Take those 7 violations- x $500 and then the question becomes is the organization liable or the individual violators?
If we just say the City and the School board are liable- it comes to $5K plus my court filing fees ($360)
If we do it per elected member of the task force- it comes to $10K.
Still, cheaper than the $12,500 the schools have already paid Mr. Wildermuth for this case.
And, cheaper than what the schools had to pay back to OHSAA in his other case that he “won.”

The caveat is, with their acceptance of guilt, the 4 elected officials (Harris, Al-Hamdani, Walker, Mims) would be referred to the Ohio Auditors Open Government Unit for evaluation on removal from office. Seeing that I’ve yet to find a single instance of a public official being removed from office in the State of Ohio for violations of the Sunshine laws, they should have nothing to worry about.

The Sunshine laws are here to protect us all, they shouldn’t be used by lawyers to put their kids through college. There is absolute evidence that discussions did take place on the bus, questions were asked, and video and audio recording equipment were banned, as well as non-compliance with notification of this event, and evidence that School Employees willfully suggested that communications not be conducted via email to hide these proceedings from public scrutiny. You will not win this case in court, or in the court of public opinion.

I am open to a counter-offer on the settlement amounts, however, let us be clear, that the average citizen wouldn’t have the capacity to fight this case, making it unlikely that I’m going to have invested this much time and energy and money, to allow you to be the only winner (Mr. Wildermuth).
The people of Dayton deserve better.
And I don’t take on battles that I will lose.

In the meantime, the case is scheduled for court on Aug 1, 2018

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.

 

 

 

When lawyers have unlimited resources: City and Board of Ed waste taxpayer money

I filed a lawsuit to stop an illegal meeting of an illegal committee to tour school buildings to close.

I was ready on Feb 7 in court to hear and try the case. It’s not that complicated, and the most the law states I’m entitled to is $500 measly dollars.

The filing fee was $330.50. Go figure.

The case is all related to the Ohio Open Meetings Act- or Sunshine laws. They specify clearly what can and can’t be discussed in public and in private by elected officials or committees. This is an easy case, since I have video of all the violations and meetings.

The city and school board sent 4 lawyers to court. It was David v Goliath. I’ve posted about this before.

We were supposed to have a phone conference today at 10 am with the judge to set a hearing date.

Instead, we got his staff attorney.

The School Board yesterday filed a request to have a jury.

Today, the city filed a 7 page response to my initial complaint with 20 defenses.

The staff attorney questioned the jury demand- since this isn’t really a case where facts are disputed- just the application of law. He’d not seen the city’s 20 defenses yet. They are laughable.

Both sides of the defense are engaged in tactics to stall and add cost (and billings for the School’s private attorney who probably bills at $300 hour or more). They claim there is no reason to move quickly on this- despite my claims that the outcome of this case reflects on the competency of the acting superintendent, and could have an impact on the makeup of the school board if the Ohio Attorney General’s Open Government Unit decides to remove members from office for violating the law- once the judge decides they did.

Since the board has stated that they will move quickly on the closings, and the courts seem to be moving slowly, I filed an injunction asking the judge to stop all discussion of closing schools until this case is settled.

I’ve attached my last memo contra, the school boards filing, the city’s filing and then my final request for an injunction for you to read.

UPDATE

1:45pm- Judge has scheduled another conference call for Friday, Mar 9 at 9:30 am

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Click to download PDF- Esrati filing for injunction

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Click to download PDF- City response with 20 defeneses

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Click to read PDF- Board request for a jury

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Click to read PDF- Esrati memo contra

Round 2: Esrati vs DPS and Dayton City Commission

Judge Skelton asked for both sides to file a memo arguing if ORC 121.22 trumped Rule 65, even though he made it clear that he believed it did to start the court arguments.

And he asked us to use a pen, not a shovel.

To me, the pen is the tool that changes history. Shovels are what you use to muck a stall. Lawyers love to shovel. I love to write.

So, my filing is 9 pages plus attachments. I strayed outside the lines of strictly interpreting the issue of ORC 121.22 vs Rule 65, by explaining all the actions of the task force amounting to repeated  and willful violations of the law. Since the defense tried to claim that a TRO as required by Rule 65 was moot, since they had already violated ORC 121.22, and that he believed that sticking to the law in the future would some how fix things- clearly had to be addressed (total bullshit, needing a bulldozer instead of a mere shovel).

Needless to say, the research was enlightening.

404 error of the county Clerk of courts site

The Montgomery County Clerk of Courts site doesn’t like my filing.

Unfortunately, the Courts website (the one with the 35 page instructions on use) gives a 404 error when trying to upload the the large document that the school task force was given during their illegal tour. I had to abbreviate it just to upload to the site. Acting in full transparency mode, I’m posting it here, now. I’m sure, this will give the advantage to the defense, who will now, re-write their memo, turning it in at the last minute- and wasting considerable tax payer dollars doing so.

That is the crux of the problem with ORC 121.22- the burden and risk, is all upon the plaintiff- who risks getting billed for court costs and attorneys fees if their motion is found to be frivolous. Public officials who break the law, on the other hand, suffer zero personal risk, having tax funded defense at their disposal.

It also turns out that removal from office has been a false threat, enforced almost never. Our “Sunshine Laws” are in practice, just blowing sunshine up our collective butt.

Or at least they have been in the past.

The actions of these elected officials and employees of the district have been so wrong, so wanton in their disregard for the law, that maybe, just maybe, this will be a case that makes a difference. Or not.

At this point, the judge will consider both filings, and then offer a conference call on how to proceed.

My call is that he issue the injunction, which allows me to begin the process of contacting the Open Government Unit to begin proceedings to remove Jeff Mims, Robert Walker, William Harris and Mohamed Al-Hamdani from office.

He should also order the task force disbanded, and all members ruled ineligible to discuss the issue of school closings because they participated in an illegal secret meeting. This means, Acting Superintendent Lolli, Associate Superintendent Burton and Treasurer Abraha would all have to sit this one out.

Mims would have to be replaced by election, the three school board members would be replaced by those chosen by current remaining members, John McManus, Sheila Taylor, Jocelyn Rhynard and Karen Wick Gagnet, from members of the community that ask to sit on the board.

The only thing left to decide in court, is how many times they broke the law, and how many times the $500 fine should be counted.

Here are the documents for you to read, which are also available on the County Clerk of Courts site.

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The Esrati filing on which law to use

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A guide on the sunshine laws in Ohio that is clearer than the AG’s version

thumbnail of A2 Violating government-access laws rarely results in punishment for the offenders | Reporters Committee for Freedom of the Press

Document From Media and the law explaining that Sunshine Laws are weak.

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Public Records Request from David Esrati to the School Board for the documents used on the tour

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The abbreviated version of the task force document handed out on the bus

UPDATE

9pm Monday, 12 Feb 18 The city uploaded their response after 4pm. They had until midnight. It’s odd in that it focuses on the judges ability to shut down the task force, which wasn’t what he asked for, and some case law trying to grasp at straws that Rule 65 applies, without any specificity to the case.

UPDATE

9:15 am Tuesday, 13 Feb 18. The School Board attorney also filed a brief- more to the issue of Rule 65 and also arguing that the judge can’t disband a task force. Really? How can a task force that violates the sunshine law- by meeting in private, possibly contribute to any discussion the board will have about the issue of closing schools, and, how can any employee of the district, that helped coordinate these secret illegal meetings not put the board at risk of having any decision they make to close schools, instantly overturned? They can’t. And, the total page count of both their briefs equals mine. Yet, they miss the point of the special protections the sunshine laws are supposed to provide.

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The more competent response filed by the private attorney for the district. Still wrong.

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The city filed for the school board. It’s short, and harmless

David vs Goliath: round 1, or what do you call four lawyers installing a light bulb?

The Ohio Sunshine Laws are laws that mean well, but are designed with so many gotcha factors that people have to feel really pissed before they jump through the hoops. Like the first one: Get a lawyer. Pay the lawyer. Then filing fee ($330.50), then show up in court. Watch the government agencies who broke the law, show up in court, unprepared, with 4 lawyers to tell the judge you are wrong, and this whole thing is just David being an idiot (while their meters are running full tilt.).

Then we have to argue about what laws apply, even though Judge Richard Skelton made that very clear right off the bat. His reading of my brief and the law in question, ORC 121.22 said to him that Rule 65- the procedural rule used for asking for a Temporary Restraining Order, said that since the Sunshine Law had remedies (what he’s supposed to do to punish the lawbreaker) there was no need to bring in Rule 65, which is a federal law. In other words, the specific rules of the State law apply because the the general rule (rule 65) is controlled by the specific one. Did I lose you? I hope not.

I was wondering why even with their expert on the Sunshine Laws they weren’t ready to discuss the merits of that part of my filing?

This wasn’t an actual trial, so I wasn’t allowed to introduce evidence. All I could do was to turn to my filing to ask for relief.

Skelton stated a few things that made a lot of sense to me (but apparently, Brian Wildermuth, attorney for the District, wants to pick a fight with a judge known for being feisty): one, that laws are generally in place to “do the right thing.” Two- that while unable to guide me, he’s working toward transparency, and understands that this law in particular is written in mostly plain terms- in order to make sure the people keep their elected officials in line.

Wildermuth tried to say that I’d been allowed to attend and video meetings and that they’d comply in the future, and that this one “bus trip” is over, and therefore there was no need for my case. Totally denying the fact that I was shut out of the bus trip- and that what happened in their closed rolling yellow conference room was a meeting held in secret, as was the tour of Valerie Elementary. They also claimed that they cut short the trip, after hearing from the judge that this may be a violation.

If you watched the videos from facebook live- or my edited video of the event, you’ll know that yours and mine idea of cutting off a bus tour would mean, stop doing what you are doing and return home. A go to jail, go directly to jail, do not pass go, do not collect $200 moment if there ever was one. The bus continued on from Valerie, to Meadowdale Elementary and Meadowdale HS and then to Wogamen middle school and then back to DPS.

Let’s also be clear, that the government bodies could send 4 lawyers on your tax dime to deal with my complaint, yet, none were prepared to answer the case.

Let’s also be clear, that the judge suggested to the lawyers yesterday to hold off on the tour, and that Dayton City Officials were told NOT to enter- hence my conversation with Jeff Mims outside Valerie on camera about my mom. Let’s also be clear, that Mohamed Al-Hamdani, the mastermind behind this task force, actually had the bus pull over between DPS HQ and Valerie so he could get off the bus. Some of the people knew better, but did it anyway.

My arguments were basic: That by participating in a single secret meeting, the committee has poisoned any decision that the schools may make on closing any buildings. School Board Members William Harris, Robert Walker and Mohamed Al-Hamdani would and should have to recuse themselves. Dr. Lolli, Burton, Treasurer Abraha, also have now poisoned themselves. Any closure could be challenged in court by the community saying deliberations were held in private- thereby, just like inadmissible criminal evidence, forcing whatever decision they make to be illegal.

The fact that Lolli keeps saying she has a right to do these things in public is an embarrassment. It’s really just time to do with her, what the board did with the woman who hired her- part ways. But, without the payoff. She can serve as a principal, or something until the end of the year, while we hire someone who can abide by the sunshine laws and not require a bunch of people picked illegally to advise them on what to do.

The sad thing about all this, is the lawyers want to continue with their charade of denial. This will be costly for the district. I look forward to depositions, and a trial, because, much like the Dr. Markay Winston EEOC investigation which ended up bringing the end to Rhonda Corr, I think I know the right questions to ask people under oath that will show that this district leadership, has acting illegally (I was chastised for calling it criminal, because there is a difference to lawyers- while the rest of us think that when you break the law, you are a criminal, they don’t think that way.)

Watch the video, read the briefs, examine how many times in the tour video that they said NO, YOU can’t come in. I believe everyone of those, times the number of people who should have known better equals $500 ea instance… but, we’ll see.

And remember while you’re on Youtube to subscribe to my channel. I need 1000 subscribers to monetize it. Thank you.

For the record, what do you call four lawyers installing a light bulb? More billable hours, and no one that actually knows how to turn on a light.