The Secret Lawsuit

COMPLAINT On June 25, 2003, a GreeneLand school janitor filed a lawsuit against his employer. The plaintiff, Stanley Dushane, accused the Catskill Central School District’s trustees of subjecting him to fraudulent, politically vindictive loss of position and of job-related benefits. Mr Dushane asked Supreme Court Judge Leslie Stein to compel the trustees to restore him to his previous office--Head Custodian--and to pay him various costs including “money illegally removed from his compensation package.” The school trustees, according to the terms of the complaint filed by attorney Mark Goichman of New Paltz, had “denied the plaintiff his rights of speech and assembly…by abolishing his position…. Abolishment…was done in retaliation for plaintiff’s involvement in the political activity between local fire hose companies” and in village elections. The plaintiff had “made good faith negotiation attempts with the defendant to resolve the matter” but had been treated only “harshly and indifferently.” RESPONSE Acting through another out-of-town attorney, Mark E. Rushfield of Highland NY, the trustees moved for dismissal of Mr Dushane’s civil action. No basis for treating this administrative shuffle as a free speech violation, they argued, had been laid by the plaintiff. The claim about fraudulent treatment was void of needed specificity. As for plaintiff’s contentions concerning loss of benefits, they do not fit under relevant State labor law (Article 6), because the post of Head Custodian(along with those of school lunch manager, business office manager and superintendent’s secretary), was administrative. CONTEXT Mr Dushane’s complaint came in the wake of furious quarreling among Catskill’s volunteer firefighters. At issue was consolidation of companies, and involved in that were questions about equipment ownership, leadership, headquarters and more. Mr Dushane took part in the conflict, not only as a veteran member of one hose company, but also as a member of the Village’s governing five-person board of trustees and, for part of his term (3/2000-3/2003) as Fire Commissioner. While the fire company controversy was raging, major changes, physical and managerial, were occurring in the school district. A new elementary school was constructed; when it opened, two old schools were closed. On the management side, the incumbent superintendent, Geraldine Wolfe, proposed a package of changes. One of them was that of establishing a Director of Facilities. This Civil Service-tested officer would absorb the Head Custodian's duties and much more. The educational and technical requirements exceeded whatMr Dushane could meet at the time. Mr Dushane was offered, and accepted, a rank-and-file janitorial job. AMENDED COMPLAINT On August 10th of last year, Judge Stein ruled against the defendant's motion for dismissal, holding that with acceptable amendments, the complaint could proceed to adjudication. Mr Dushane might have an enforceable contract right under State labor law. If that line of argument falls short, the plaintiff can try to sustain the claim for relief from loss due to fraud. Plaintiff could go ahead contending--as Judge Stein phrased it--that defendant “fraudulently induced him to take the position offered to him by promising certain wages and benefits, which it had no intention of providing.” The parties could now proceed to the discovery stage (seeing each other's evidence and reasoning) and then trial. RESOLUTION? Those steps were not taken. Instead, last month, the parties reached an out-of-court settlement. Consequently, there would be no airing in court of the Dushane charges (rephrased in a March 2004 filing) that the Catskill Central School District engaged in "intentionally misleading or deceiving the plaintiff for 13 years," in "failing to fulfill their contractual obligations," and in "retaliating against an employee for taking part in the political life of the town and village"--as well as "intimidation and spying." No word of this event, or of any part of the proceeding, appeared in the news media. Earlier this year, however, a tip about the case did come this way. It prompted recent attempts to elicit information from the new Superintendent of Schools, and from the school board’s president. Those attempts were met with stonewalling, accompanied by insinuations that the inquiry itself was illicit. It also led to a review of papers filed in the county Records office, papers containing the information cited above. REFUSALS In quest of confirmation of and comment on the settlement, we made another bid for information. We called the attorneys, Richman and Goichman; the School Board Chairman, James Garafalo; the office of Superintendent of Schools Kathleen P. Farrell; and the home of Mr Dushane. Mr Goichman confirmed that a settlement had indeed been reached, adding that he and his client are barred from disclosing the terms. Mr Richman said he would not talk about the case until authorized to do so by his client(s). Mr Garafalo refused to discuss the matter, and took umbrage at the inquiry: “You’ve called me at my place of business; I resent that. I never discuss school matters at my place of business” (namely, Catskill Florist Inc.). Dr Farrell did not return our call. Neither did Mr Dushane. We also called Morris Darling, who had been President of the school board when the actions complained of by Mr Dushane took place. While expressing uncertainty about the propriety of commenting on the case, he denied, emphatically, that any administrative changes that were adopted during his tenure were aimed at punishing Stanley Dushane. COSTS OF SILENCE Stonewalling does not seem to be required by law or by the public interest. Although litigation is a subject for executive sessions rather than for public School Board deliberations, the trustees are not precluded from acknowledging the existence of lawsuits. Neither are they barred from announcing or acknowledging settlements. In civil disputes between private parties, the terms of out-of-court settlements often are by mutual agreement kept confidential. But where one party is a public company, such arrangements cannot be sustained. The taxpayers are entitled to know, through court filings if not through voluntary announcements, whether a school board has agreed to pay money to a litigator. By its silence on the case and its agreement to settle, the present school board lends credence to the Vendetta thesis. It seems to be accepting Mr Dushane’s claim that the preceding board, chaired by Morris Darling, did take part in a deliberate scheme, masked by spurious administrative pretexts, to punish Mr Dushane for his fire company politics. But the settlement’s terms could be such that Mr Dushane withdrew his charges of fraud and political retaliation, while the Board recognized his monetary claims, or some portion thereof, as a contract employee. In that event, the Vendetta charge—a smear against the previous school board and Dr Wolfe—is nullified or moot. By settling the case in secret, moreover, the present school board lends credence to suspicions about cronyism. The settlement was reached after the school board elections of 2003. Those elections brought into office, among others, Mr Garafalo and Michael Battaglino, who are close friends indeed of Mr Dushane. That sequence, coupled with the aura of secrecy, can all too readily nourish doubts about whether the board treated the case on its merits. Skepticism could be dissipated, however, by assurances that Mr Dushane’s friends distanced themselves from deliberations on the case, and that the board's decision to settle was unanimous. To give such assurances, the board must first admit the existence of the case.