The saga continues in TE School District — Court rules against TE School District regarding residency of alleged hazing victim

court decisionThe saga continues … Sexting offenses, alleged hazing and residency dispute all involving one TE School District family. Chester County court rules against the TE School District in a stunning decision by Court of Common Pleas Judge Jeffrey Sommer regarding residency.

(The complete article from today’s Main Line Media News follows my comments).

After reading the article, the first word that comes to mind is “accountability”.  Under whose authority did this situation happen — the hiring of the private investigator (from Cloud Feehery & Richter) at tax payer expense ($12K +) over a specific residency issue?  Does the District pay the private investigator over each claim of non-residency or was it just trying to get this specific student out of the District after sexting offenses? Who made this decision? Was it at the direction of the TE School Board and/or Superintendent? Is the hiring of investigators in residency situations routine in the District?  Does the School Board approve the residency investigations or is decision up to the school administration?

In rendering his decision in this residency case, Judge Sommer stated, “We find that the hearing officer willfully and deliberately disregarded competent portions of (the father’s) testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result, thus making his credibility determination arbitrary and capricious,”  The judge also determined that the alleged victim and his father were denied their right to counsel.

The ruling of Judge Sommer certainly points to incompetence of the private investigator and the TE School District. The judge calls the District’s investigator incompetent and the taxpayers are stuck with the bill.  School Board, where are you?  Were you aware of this specific investigation regarding the residency of the alleged hazing victim and the apparent mishandling of the process? Was this a way to get the student out of the District?  And how does the District Solicitor Ken Roos factor into the residency investigation — was the decision to engage a private investigator in this specific case at his recommendation/advisement?

Who is in charge, where’s the oversight and accountability? I note that the District declined to comment for the article, what about the School Board? Will we receive an explanation?

Court rules in favor of the alleged hazing victim; judge rules student was legal resident of T/E SD

by Adam Farence

Court of Common Pleas Judge Jeffrey R. Sommer ruled in favor of the alleged hazing victim with regard to his residency issue with the Tredyffrin/Easttown School District, reversing the school board’s original decision to stop funding the alleged victim’s education at Buxmont Academy. Sommer also ruled the victim does not owe over $13,000 to the school district.

According to court documents, Sommer drew his conclusion from two issues. First, he determined the hearing officer from an earlier meeting incorrectly concluded the alleged hazing victim did not meet the federal definition of homeless.

The victim was reportedly kicked out of his previous Devon residence by his great-grandmother after his arrest for sexting-related offenses in October 2015. After he was kicked out, the alleged victim’s father drove him back and forth between his Devon bus stop and his mother’s residence in Chester, Delaware County.

It was during this time period that T/E officials hired a private investigator from Cloud Feehery & Richter to determine if the alleged victim did actually live within the school district boundaries. After several months of surveillance, the private investigator determined the victim did not live there.

The school district spent $12,281.92 on services rendered by Cloud, Feehery & Richter, according to a Right-to-Know request filed by the Daily Local News.

The alleged victim could not claim the Chester residence as his, according to court documents, essentially depriving him the chance to pursue a free education in Delaware County, and Sommer determined the alleged victim met the federal definition of homeless. He also criticized the hearing officer’s original finding.

“We find that the hearing officer willfully and deliberately disregarded competent portions of (the father’s) testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result, thus making his credibility determination arbitrary and capricious,” Sommer wrote.

Sommer also pointed out the hearing officer was employed by the school district. “It takes no great leap of faith to recognize that the hearing officer is being paid by TESD, their ‘adversary,”” he wrote.

Second, Sommer determined the alleged victim and his father were denied their right to counsel.

According to court documents, the victim’s father was notified of the Jan. 20 non-residency hearing with the hearing officer only a few days prior. Sommer also wrote that the school district did not notify the father’s attorney even though they had been told in writing to do so.

Originally, the family was represented by William McLaughlin Jr., before he passed away in late March. For the remainder of the case, the family was represented by a new lawyer, Robert DiOrio. “…TESD not only did not notify Attorney McLaughlin of this hearing but made the pre-hearing notice period so short as to effectively cut Attorney McLaughlin out of the process,” court records state.

At the Jan. 20 non-residency hearing, the victim’s father did say he chose to come without counsel and knew he had the right to proceed with counsel if he wanted, but according to court documents, the circumstances surrounding the hearing undermined due process.

“We are very pleased with Judge Sommer’s well-reasoned decision,” wrote DiOrio.

School district officials declined to comment.

“We do not discuss individual student matters and therefore do not intend to comment on this specific case,” wrote district Solicitor Ken Roos. “However, the district remains committed to enforcing its policy of only permitting district residents, including anyone properly qualifying as homeless, to attend district schools.”

The alleged hazing victim’s father received a bill late January for over $13,000, after the school district originally determined he and his son reportedly lived outside the district’s boundaries. The father reported the alleged sodomy to school district officials about a week later in early February, and Chester County District Attorney Tom Hogan announced assault related charges against three Conestoga High School football players on March 4. Over the course of a few days, news of the charges and the alleged sodomy spread across the nation.

34 Comments

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  1. This entire incident was the likely catalyst for the hazing scandal.

    This is yet another example of the District suffering the consequences of ineffective legal counsel.

    The Boards job is to assure that we have competent Administration supported by competent legal counsel. Given this episode, will the Board hold the Administration and the Solicitor accountable? Will the Board do their job?

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  2. The school board is ultimately responsible, but this is a technical issue that required advice from both the administration and legal counsel. A look at the legal filings would be illuminating. Someone should shine a light on Mr. Roos. He may be giving the board bad advice.

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  3. Court of Common Pleas Judge Jeffrey Sommer said:

    We find that the hearing officer willfully and deliberately disregarded competent portions of (the father’s) testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result, thus making his credibility determination arbitrary and capricious,” Sommer wrote.

    Sommer also pointed out the hearing officer was employed by the school district.

    “It takes no great leap of faith to recognize that the hearing officer is being paid by TESD, their ‘adversary,”” he wrote.

    Could someone please talk about a hearing officer. What is a hearing officer? Are all hearing officers employed by School Districts? If so, and their job is to arbitrate, doesn’t the fact that they’re paid by school districts defeat the purpose of a fair and unbiased hearing?

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    Pattye Reply:

    I that that the hearing officer employed by TESD could be the District’s solicitor Ken Roos. That should be public information but my guess it would take a right-to-know to the District’s business manager (and open records officer) Art McDonnell. I will send Mr. McDonnell an email and ask the name of the TESD hearing officer.

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  4. Making a check list and checking it twice under the law is the first step.

    TE policy defines homelessness. TE has a protocol under Administration to hire an investigator. However due to the emotional nature of the situation, TE jumped the gun. There should be best practices in a residency issue. Here, TE administration and Board (consisting of three lawyers) failed to understand the homelessness definition and the law surrounding it.

    Likewise, counsel hired by TE failed to give sufficient notice to the student’s lawyer. This oversight was incompetent as the Court required this in writing.

    Board please remove the bias of your paid hearing officer and the ridiculousness of a $12000 investigator who was trying to gather evidence to collect a $13000 from the father. Do the math! Spare the taxpayers from paying for your obvious mistakes.

    The Board needs to take the reigns and stop paying for lost legal causes.Separate your own bias from the issues and weigh the risks. If there is a theft of services, you can’t recover those costs from those without money.
    The Board needs a reality check.

    Please never disregard the requirement to notify the client’s lawyer! Good grief!

    Yes the school should weigh risks and benefits. Get a calculator. Add legal cost, investigator cost, cost of never recovering the services.

    And Finally weigh the cost of denying a student free public education. I suggest revisiting policy and best practices.

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    Observer Reply:

    Good Points.

    I believe the Administration and The Solicitor knew they weren’t going to get the money back. Even if they prevailed, they knew they were creating a potential firestorm with their strong arm tactics.

    What was their real motivation? Were they trying to justify the newly created position? Were they just being vindictive? What was the real reason for the letter?

    They’re using our public monies to satisfy their appetite for control and domination.

    The father already has a law suit against the District. This will not only help that, it will further damage the reputation and good standing of our community.

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    Shining Light Reply:

    I agree with Liz.

    “”””””””However due to the emotional nature of the situation, TE jumped the gun.””””””””

    When fuel is added to fire, it makes angry people angrier, scared people more scared and it makes bad situations worse.

    What was the Administration thinking when they sent that letter? What was Ken Roos thinking when:

    the school district did not notify the father’s attorney EVEN THOUGH they had been told in writing to do so.

    …TESD not only did not notify Attorney McLaughlin of this hearing but made the pre-hearing notice period so short as to effectively cut Attorney McLaughlin out of the process,” court records state.

    This information is a cause for worry and concern. If not intentional by Roos, very disturbing that he would not notify the victim’s father about the hearing even though they had been notified in writing to do so.

    The credibility of the institution is further damaged by the actions of the Solicitor. The sad thing is that it’s not surprising. This is and has been the Districts modus operandi for as long as I have been paying attention and unless the Board steps up and stops stonewalling and protecting bad and/or incompetent acts by those paid alot of money with tax payer dollars to do it, nothing will change and our district will see more of the same.

    If past predicts future, Virginia Lastner, (up for reelection in a year)Chairman of the Facilities and Finance Committees will make a special point to say in the next meeting what a great job Ken does, and how he is irreplaceable and how the District couldn’t function without him.

    How does the Districts legal expert forget or not think it’s important or wrong that he with hold information to the father’s attorney? Even if it isn’t illegal, the lack of judgement is astounding.

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  5. If the Spoke article is correct the hearing officer was A Kyle Berman from Fox Rothschild. The definition of a hearing examiner is: Hearing examiners are employees of federal, state, and local administrative agencies who act as judges to resolve conflicts that are within the jurisdiction of their particular agency.
    .
    You might find a hearing officer for expulsions, to hear labor grievances, paroles, to determine special education awards and to adjudicate right to know requests. It keeps disputes from going directly to the Court of Common Pleas where the costs for everyone is higher.
    .
    My guess is that every hearing examiner dealing with expulsions and residency would be paid by the district so I don’t understand why the judge was surprised.

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  6. During my 40 years in business, I often heard the refrain, those that can do, those that can’t teach.

    Take note citizens.

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    John Reply:

    Frankly, that is an idiotic statement that has nothing to do with any of this.

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  7. The article doesn’t give the impression the judge was surprised that the hearing examiner was paid by the district.

    The judge was stating that since the District paid for the hearing officer, the credibility of the hearing office comes into question because it creates a direct conflict of interest that bias’s the hearing officer toward ruling unfairly in the District’s favor because he was being paid by the District.

    The judge said that the hearing officer ‘WILLFULLY AND DELIBERATELY” disregarded competent portions of (the father’s) testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result, thus making his credibility determination arbitrary and capricious,” Sommer wrote.

    Since the hearing officer was employed by TESD, he was an employee of the TESD and so therefore investigating himself creating a direct conflict of interest disqualifying him from rendering an unbiased and fair ruling.

    Self investigation leads to one outcome and one outcome only

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  8. I attended the School Board Meeting this evening.

    The Board cannot tolerate this law firm anymore.

    Judge Sommers disclosure that Ken Roos failed to notify the alleged victims father about the hearing even though he had been told to in writing and the fact that the hearing officer ‘WILLFULLY AND DELIBERATELY” disregarded competent portions of (the father’s) testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching a result, thus making his credibility determination arbitrary and capricious,———–was not mentioned by the Board and only briefly mentioned at the very end of the meeting when a citizen talked about it in the last comment section.

    No matter what our feelings are about this case, we have to have confidence that our counsel will follow the rules and act in a professional competent manner at all times. This shows that our feelings are not always the best guide to good decisions. Our big mess just got bigger. We have to show that this behavior will not be tolerated and that this is not the way we want our District to be represented. It sends an awful message to the world.

    The Board directed his questions to the Solicitor’s stand in (because Ken wasn’t there), who immediately stated he would not talk about it or answer any questions due to attorney client privilege. The information discussed is public information disclosed by Judge Sommers. Ken Roos’s stand in would not have been violating any one’s rights to answer the questions.

    The brave citizen continued when all of a sudden, Ken Ross’s stand in slammed his fist on a buzzer that emitted the loudest and most obnoxious sound I’ve ever heard. For a moment, I thought the Russians were coming or that a tornado was imminent or that we would surely be swept away by a flood at any moment. When I realized it was sounded intentionally, by Roos’s stand in, I was hoping it would serve to wake the Board and cause them to begin thinking sensibly and work in the best interests of the citizen asking the questions and we in the audience who wanted to hear what he had to say about how his law firm handled this case and others that also went against the District. When the buzzer failed to silence the citizen, the stand in held up a sign in front of his face indicating he would not answer questions. This is unacceptable and inappropriate behavior.

    It’s even more unacceptable and inappropriate behavior by the Board. Each one sat silently by and let him do it, without so much as a word, an admonishment, or heaven forbid a rebuke. It was clearly planned and sanctioned by the Board.

    Another example of how this District is run by the Solicitor, the Architect, the Business Manager and the Administration.

    They can do and say whatever they want to with NO fear of consequence. And they do.

    There is an election in just over a year. There are 4 seats open. We need to elect people who will stand up to stand in’s, protect citizen’s rights to ask questions and hire competent Counsel and Administration.

    [Reply]

    Pattye Reply:

    SL,
    Thank you for your comment and observations from last night’s school board meeting. I too was troubled by the total lack of response from the school board on the residency/non-residency issue. The lawyer jumped right in claiming attorney-client privilege — the process and handling (or mishandling) of the situation is clearly public information. There are three lawyers currently sitting on the board who must know that the District’s process is public information. The Board has a right to protect the way our tax dollars are spent and a fiduciary responsibility to us.

    Prior to the Board meeting I sent an email to two Board members and asked the following questions:
    1. Did the District hire the hearing officer, attorney Kyle Berman for this case?
    2. Does the District hire a private investigator in each suspected non-residency student case?
    3. Do our tax dollars pay $12K+ each time a private investigator is used? And is this the cost per investigation?
    4. Where does this expenditure appear on the District’s budget?

    I purposely sent these questions to the 2 Board members in advance of last night’s meeting to encourage an open discussion. These questions are not protected by attorney-client privilege — they are process questions. Yet, there was absolutely NO discussion or comment from ANY board member last night and no response to my email.

    Accountability … transparency … public information — all great buzz words for political campaigns but where’s the delivery?

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    Keith Knauss Reply:

    Can’t wait to see the video of the meeting. I’ve heard of boards remaining silent in the face of unwanted criticism; I’ve heard of boards adjourning for a period of time, but it’s a first to sound an obnoxious buzzer.

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    Pattye Reply:

    What’s the saying, “hear no evil, speak no evil, see no evil” … Keith, this is TE :)

    Shining Light Reply:

    The video of the meeting will not give an accurate accounting. Imagine being in the room when a fog horn is blasted out over an entire golf course to warn players of thunder and lightening. That’s what it was like and thats how I knew the Board was in on it. They didn’t bat an eyelash. I was about to take cover when I asked Pattye what it was and she told me the lawyer pushed a button to sound the alarm.

    The brave citizen was not criticizing the Board. Quite the opposite. He could not have been more polite and respectful.

    I would be interested in your comment after you view the video.

    Keith Knauss Reply:

    OK. I viewed the video where the buzzer sounded. First, I didn’t find it all that loud or obnoxious. It didn’t interrupt the flow of conversation of either the citizen or the solicitor. For those who are interested it occurred at 1:33 of the video that can be found here.
    http://www.schooltube.com/video/59618febcd8f4e43beb0/August%2022,%202016%20Tredyffrin/Easttown%20School%20Board%20Meeting
    Second, let’s realize that this was the standard notification that a resident’s allotted 5 minute comment period has ended. As such, I can understand why board members were not surprised. This was not an attempt by the solicitor to “duck” a difficult question.

    Pattye Reply:

    The 5-min buzzer was only used when resident questioned legal representation and process. Other unrelated topics were allowed to exceed time allocation without question.

    Keith Knauss Reply:

    Pattye,
    I disagree. I timed each speaker and only one discussion exceeded the 5 minute period and had the buzzer sound. Thus, we can’t conclude that topics other than legal representation and process were allowed to exceed the time limit.

    Pattye Reply:

    OK, thank you for timing each speaker.

    Shining Light Reply:

    Spoken like a true ex-Board Member. LOL

    That’s why I said the video will not give a full accounting. You had to be there to experience the loud and obnoxious fog horn blast. It filled every one of my senses. There is no way video could duplicate the sensations of the actual experience.

    I believe it was an attempt by the Solicitor to not only duck responsibility from answering the question, but I believe it was an attempt to confuse the process, and end the meeting quickly. Even if the brave citizens 5 minutes were up, as I recall Virginia adjourned the meeting as quickly as she possible could.

    I have never in my 5 years of attending meetings heard a buzzer like that one. It was very loud, very harsh and sounded nothing like an indicator of time allotment as you say. I also got the impression it was connected to a sound system in the building. It did not sound like a stand alone buzzer like ones I have heard in the past.

    I remember wondering where he ordered that fog horn buzzer from. It must have been from a golf magazine.

    Ray Clarke Reply:

    What did the School Board know, when did they know it, and did they apply any critical thinking?

    The Board’s counsel directed us to District Regulation 5116 which lays out the process for identifying and dealing with non-resident students.

    This process ends with “the action of the Board of School Directors at a regularly scheduled Board meeting”.
    http://www.tesd.net/cms/lib/PA01001259/Centricity/Domain/14/r5116.pdf
    Thanks to Judge Sommer, we know that many of the interim steps in the Regulation were not followed. Did the District Administration and lawyers skip the last step, too?

    Even if the Board knew, history shows a pattern of following bad advice: the RTK ruling, the VFMS fence saga from beginning to end, and now this. When your legal arguments attract the same level of judicial derision as the over-turned North Carolina Voter ID laws. it’s time for a change.

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    Shining Light Reply:

    Ray,

    What we know now matters. Judge Sommers’ disclosure makes it crystal clear they know now and what’s revealing is what they are doing now……..nothing. This could mean that they knew all along but hard to prove and no need to because Judge Sommers’ statement revealed the truth to everyone.

    I agree with Ray that the actions of our Counsel drew judicial derision. Unlike Keith, I don’t think that Judge Sommers was surprised that the hearing officer was paid by the District and surprised that the hearing officer disregarded important portions and relevant testimony of the father. I think he was angry.

    I don’t think he was surprised when he determined that the alleged victim and his father were denied their right to counsel by Ken and his law firm. I think he was angry.

    School Board, the entire country is looking at us and every move we make. The last thing we need are angry judges and angry reporters watching and reporting on every bad move we make. Stop the bad moves and do the right thing.

    [Reply]

    Keith Knauss Reply:

    Ray,
    The board did fulfill the last step (action at a board meeting). It was in the consent agenda. You, and most other people didn’t recognize it.
    .
    Here it is:
    Consent VIII, F, 2: Hearing Adjudication

    VIA: Richard Gusick, Superintendent
    Action Under Consideration: That the Board of School Directors adopts those findings of fact and conclusion of law in the matter of a student as contained in the appointed hearing officer’s proposed adjudication as presented to the Board.
    After familiarizing itself with the findings of fact and conclusions of law as contained in the appointed hearing officer’s proposed adjudication, the Board hereby adopts those findings and conclusions as its own. Based upon those facts and conclusions, the Board finds the proposed remedy contained in the proposed adjudication appropriate and imposes that remedy in the manner set forth in the adjudication. (page 103)
    http://www.tesd.net/cms/lib/PA01001259/Centricity/Domain/56/January%2025%202016%20eAgenda%20-Web.pdf

    [Reply]

    Ray Clarke Reply:

    Hats off to you, Keith, for the sleuthing! We now know that the Board took upon itself the “findings and conclusions” that were so severely censured. Whether they were properly advised, or negligent, or both, remains open to speculation, of course.

    Shining Light Reply:

    Yes Keith, thank-you!!!!

    Hats off to you.

    ————After familiarizing itself with the findings of fact and conclusions of law as contained in the appointed hearing officer’s proposed adjudication, the Board hereby adopts those findings and conclusions as its own. Based upon those facts and conclusions, the Board finds the proposed remedy contained in the proposed adjudication appropriate and imposes that remedy in the manner set forth in the adjudication.——–

    WOW!!!!!!!!!!!!!

    Good Work Keith!

    Ray Clarke Reply:

    Just a brief note on the buzzer. It may not sound loud on the video – which is set up to capture only sound from microphones that are turned on – but I agree with SL that in the room the sound was loud, startling and obnoxious. I think that is a new feature this year. Do we really need to limit community input in this way? Or indeed at all when there are only four or five residents making constructive comments?

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  9. self examinations….. you are exactly right! I can think of one of these examples on the Federal level, and every banana republic has “self examinations”..

    on a more direct note, I would like to know what the definition of a citizen of tredyffrin is, and what homeless is, strictly defined… I mean can a homeless family take up in TE and use the educational system? Can this become a problem where there is an influx of “homeless” that come here? Do we have a “homeless” shelter in TE? just asking questions…..

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  10. Attended the meeting the BUZZER is obnoxious ..you lose your train of thought. What’s with the lawyer waving a sign before..a 2 second warning ? Last year I think Ken Roos used a cell phone alarm ..whatever it was kinder than this new noise. RUDE

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    Pattye Reply:

    In addition to the sound of the buzzer, does anyone else find it ridiculous that taxpayers are paying $$$ for the District solicitor to be the time keeper? One would think that timing resident comments would be below his pay grade. With an audience of around 10 residents, you’d think that the few residents making comments could be allowed to speak w/o fear of interruption. The township supervisors meetings have never instituted such a policy and those meetings have higher attendance/participation than school board meetings.

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  11. Yes i agree with Pattye.

    A few more obsevations:

    I’d like for someone else to comment after viewing the video.

    President Doug Carlson seemed snippy and short with tax paying citizens, especially before they were about to speak. I noticed it because he is usually isn’t. He’s usually pretty fair and decent ,doesn’t say the opposite of what is true and is pretty neutral about his feelings on any topic.

    Why did Virginia adjourn? Shouldn’t Doug have adjourned the meeting? How about Scott? Isn’t he Vice President? Why did Virginia take it upon herself to adjourn the meeting so quickly after citizens were confused after the loud, rude, Fog Horn went off making those without prior knowledge of the sound going off lose their train of thought. Virginia did not lose her train of thought. She acted very quickly and efficiently, getting that meeting in the books as quickly as possible. As I recall, after the brave citizen was the only one allowed to speak, Virginia didn’t ask if anyone else had comment after the loud rude fog horn blasted. She adjourned the meeting.

    And I want to thank Supt. Gusick for approaching me with a big smile on his face immediately after Virginia adjourned the meeting. I was completely baffled and confused, had lost all train of thought when he had the presence of mind and poise in all the confusion to kindly thank me for my e-mail to him thanking him for giving all the credit to students for our number 1 state ranking. I’m sorry I didn’t have the same presence of mind as him, I mumbled something and continued on feeling like I had just been sucker punched. It took me awhile to regain my senses.

    It’s so uncommon for the Supt. to approach citizens, someone mentioned it to me in surprise on the way out so I explained the brief encounter.

    We were played………by the Board, the Supt. and the Administration. The sad thing is, it’s not surprising.

    [Reply]

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