The Lakeland Times has filed an open records lawsuit against Lakeland Union High School, after the school district denied the newspaper access to two pages of purportedly negative comments about incoming LUHS boys’ basketball coach Rich Fortier, Times’ publisher Gregg Walker announced this week.
Top school officials compiled the comments earlier this year during the hiring process for the coaching position and distributed them to at least one school board member in August, as well as to an informal advisory citizens’ committee for the position.
Walker said it is in the public interest to release the records.
“The administration went to great lengths to gather two sheets of negative comments, supposedly by calling Mr. Fortier’s former employers, and thought them important enough to give them to selected members of the public, specifically the informal and advisory citizens’ committee,” Walker said. “Every member of that committee subsequently recommended another coaching candidate. The public has a right to know what was said about the new coach and who made the remarks.”
What’s more, Walker said, Fortier should have the right to defend himself against the comments.
“While the general public does not know what was specifically said, the public does know that supposedly negative comments exist,” Walker said. “The school district should not be allowed to force the public to imagine what the comments were, or to leave Mr. Fortier defenseless against phantom perceptions.”
Finally, Walker said, the newspaper called all of Fortier’s listed references, as well as four other former supervisors, and found that none of the references and only one of the former supervisors had been called; none said they had made any negative comments.
“This causes us to wonder who the administration called,” Walker said. “It goes to the veracity of the administration’s conduct and to the honesty of the process. This is unquestionably in the public interest.”
The lawsuit was filed in Vilas County circuit court Wednesday by the newspaper’s attorney, Robert Dreps of Godfrey & Kahn, S.C. The complaint lays out the factual background leading to the newspaper’s request and the school district’s denial.
“During the summer of 2012, LUHS was considering two candidates, Rich Fortier and Levi Massey, to fill the vacant position of head boys’ basketball coach,” the complaint states. “LUHS formed a five-member committee of citizens to interview the two candidates and express their opinions on which should be hired. The committee met and interviewed the candidates on August 23, 2012. The minutes from that meeting state that ‘[a]ll members of the committee had the opinion that Mr. Levi Massey was the best choice for the position.’”
After the interviews took place, but before the members’ recommendations, the LUHS administration provided the committee members with the two pages of negative comments about Fortier, which, the complaint points out, the administration later said were “notes drafted by Athletic Director Justin Szews and Principal James Bouché regarding their telephone conversations with prior employers of Mr. Fortier.”
LUHS district administrator Todd Kleinhans made that assertion in his Sept. 10 denial letter to Walker.
According to the complaint, LUHS did not provide the citizen committee members with any comments about Massey, while the negative comments about Fortier were attached to an email dated Aug. 27 from Kleinhans to LUHS school board member Joe Fahrenbach.
As The Times has reported and the complaint reiterates, board member Tami Schroeder asked LUHS administrators at the board’s meeting on Aug. 27 why the interview committee had been provided with negative comments about one of the candidates, but no comments about the other candidates. School officials did not answer her during the open portion of the meeting.
Because Schroeder possessed the comment sheets at the meeting, and because they were twice mentioned at the meeting, Walker made his open records request for them.
The newspaper’s complaint asserts that, under the open records law, the denial of public access to records can only be justified in extraordinary situations.
“Under the Open Records Law, Wis. Stat. § 19.31, it is the declared public policy of this state that every citizen is entitled to the greatest possible information regarding the affairs of government,” the complaint states. “(The statute) affirms the presumption of complete public access to government records, consistent with the conduct of governmental business. The statute provides that ‘[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.’”
This is not an exceptional case, the complaint asserts.
Neither can LUHS claim the comments’ sheets are statutorily exempt letters of reference, another contention made by LUHS officials, the complaint contends.
“The actual letters of reference submitted to LUHS by Mr. Fortier’s former employer were not provided to the citizen committee,” the complaint states.
What’s more, the complaint continues, “(o)n information and belief,” the comments LUHS officials provided to the citizen committee and to at least one school board member did not represent a true and fair report of the comments of Fortier’s prior employers.
“To the contrary, those comments were either selectively edited to negatively portray Mr. Fortier or they were not made by anyone who could fairly be described as his prior employer,” the complaint states.
Then, too, the complaint adds, the two pages of negative comments concerning Fortier are not exempt from disclosure under the common law balancing test, as LUHS contends. Such a test weighs whether the public interest in disclosure is outweighed by a public interest in nondisclosure. The school has argued that releasing such information could have a chilling effect on its ability to attract and hire staff.
In fact, the complaint asserts, just the opposite is true.
“Contrary to the defendant’s position, a biased hiring process structured to unfairly favor one candidate over another is more likely to ‘have a chilling effect on those who might otherwise seek public employment’ than would public disclosure of the record at issue,” the complaint states. “Shielding LUHS administrators from accountability for their conduct of this hiring process by concealing the record at issue is contrary to the public interest and to the Open Records Law’s presumption of complete public access.”
The complaint asks the court to compel the defendant to permit the newspaper to inspect and copy the requested records, and to award The Times reasonable attorneys’ fees, actual costs and damages.
Richard Moore may be reached at firstname.lastname@example.org