As the Christina school board remains embroiled in controversy, Christina's longtime lawyer is dropping the district as a client and issued a stark warning of legal peril if the board doesn't change course.
“Legally, if turmoil is not resolved in very, very short order, I see only peril, significant liability and other legal concerns,” attorney James H. McMackin III wrote in a July 17 email to the board. “I urge the board to cure internal differences in short order.”
The confidential email, one of several obtained by the Newark Post this week, describes a “public record of animus” by some board members toward Superintendent Dan Shelton and warns that continued efforts to fire him could result not only in legal liability for the district, but personal liability for those board members.
“I cannot tell you what to do, but I strongly suggest the Board of Education focus its efforts elsewhere besides expediting the administration's termination,” McMackin wrote. “The perseverative pursuit of termination....raises boundless concerns from myriad perspectives.”
McMackin's firm, Morris James LLP, has represented the district for nearly 40 years and also represents most other school districts in the state. In a July 12 memo, McMackin said it's time for that relationship to come to an end, though he promised to stay on until the board can find new representation.
“As times, people and boards change, it is important to evaluate relationships from time to time,” he wrote. “After much observation and deliberation, I sense the time is arriving when you should begin to look for my firm’s successor.”
Infighting has plagued the board for nearly a year, drawing strong criticism from the state legislature, which in June ordered the Delaware Department of Justice to start monitoring the board.
The sharply divided board prompted outcry from many employees and members of the public July 9 when it put Shelton on paid suspension with a 4-3 vote during a chaotic, eight-hour meeting. At the time, Board President Donald Patton and his allies steadfastly refused to explain their reasoning for the suspension, citing personnel rules, even after Shelton waived his right to privacy.
The emails from McMackin describe four different reasons that Patton's faction has put forth for terminating Shelton. McMackin, however, wrote that none rise to a level that would justify firing the superintendent.
“Through any lens, termination is certainly off the table for multiple reasons,” he said.
Complaint against Shelton unsubstantiated
During the July 9 meeting, board member Y.F. Lou revealed that a district employee filed a complaint against Shelton and argued that the suspension is necessary so the complaint can be investigated. However, when the board voted, it had already received a report that concluded the complaint could not be substantiated.
Documents obtained by the Newark Post show that the employee filed the complaint in early June, alleging that Shelton had made her uncomfortable by yelling at her and leaning over her desk in an intimidating way.
According to a report written by an outside law firm the district hired to investigate the matter, the incident stemmed from a dispute over what work responsibilities should take precedence. Shelton wanted to speak to the employee about Freedom of Information Act requests, but the employee declined to speak with him, saying she was too busy transcribing board meeting minutes. Shelton allegedly yelled that he's the boss, and the employee got uncomfortable and called a human resources representative.
The employee also alleged that Shelton cursed at her during a separate phone call about the FOIA issue. Shelton acknowledged to investigators that he said curse words, but claimed he was not cursing at the employee but rather was frustrated that he accidentally hung up on an unrelated phone call.
The investigation was unable to substantiate the complaint but did find that a witness had heard Shelton yell at the employee previously.
“We did not discover facts supporting [the employee's] allegations that Dr. Shelton had mistreated his prior secretary or more broadly engaged in a pattern of mistreating employees,” the report read.
Because the complaint is uncorroborated, “termination is off the table,” McMackin wrote in a July 16 email to board members.
Furthermore, he wrote, because the investigation is complete, the board should lift the suspension and return Shelton to duty.
“If we continue his leave after Thursday under the guise of an investigation, with a concluded and non-actionable report, it looks vindictive and capricious,” McMackin wrote, referring to a July 18 board meeting that was ultimately canceled.
He acknowledged, however, that the thought of him returning to duty “is unbearable to the board.”
McMackin also speculated that other factors are at play regarding the employee complaint.
“Between the allegations, evidence and the resulting perilous spot we are in, I wonder (I am speculating without evidence) whether the board was baited, by whom and to what end,” he wrote.
Conflict of interest
Another issue relates to conflict of interest by Shelton's second-in-command, Deputy Superintendent Deirdra Joyner, who helped steer no-bid contracts to a company for which she worked as a consultant.
At Patton's request, the Delaware Public Integrity Commission investigated and issued an advisory opinion stating that Joyner “had a true conflict of interest” when she advocated for the Koru Strategy Group while she was “actively working” for the company.
Over three years, the district paid Koru nearly $750,000 for staff development services. Joyner later resigned her role with the company after the board raised concerns last summer.
The commission found that Shelton was aware of Joyner's relationship with the company but he didn’t explain why he encouraged the board to vote on it.
“Dr. Joyner should have recused herself from the CSD's consideration of the Koru contract. In addition, her participation created an appearance of impropriety,” the commission wrote. “Moving forward, the commission recommends employees with a conflict of interest not be permitted to participate in discussions and votes regarding the matter creating the conflict.”
McMackin told the board that while the commission's report could cause reputational harm to the district, it is not cause to fire Shelton.
“A few logical leaps and assumptions would have to be made to claim he benefited personally,” he wrote.
McMackin added that he has “tremendous concern” that a board member has suggested firing Shelton based on the commission report.
“First, probing yet another angle of attack against the superintendent does nothing but support the witch hunt narrative,” he wrote. “Second, you would be reversed on appeal by the State Board.”
Termination requires due process and impartial decision makers, McMackin explained. Because board members have publicly stated their opposition to Shelton, firing him would require evidence that he did something so egregious that any reasonable person would find worthy of termination.
“No jury would conclude this is egregious when you are sued,” he wrote.
'The case must be built'
The board's desire to fire Shelton dates back to at least early this year, according to a Feb. 7 memo in which McMackin notes that he has been informed that four board members want the superintendent removed.
At that time, the board's displeasure was due to a disagreement with Shelton over the process used to hire a special education supervisor. The district posted the job three separate times as officials tried to find a suitable candidate.
During the third iteration of the hiring process, the district hired someone who was a finalist in the previous round. Some members of the board thought it was unfair that a portion of the interview process was different for the two finalists.
McMackin told the board there was no cause to fire Shelton over the incident.
“Superintendent terminations are very rare, but I have multiple successes and no failures,” he said. “The case must be built. It must be solid. We must not be reactionary or emotional. We must be judicious in our comments.”
He suggested the board consider buying out Shelton's contract, though he acknowledged “the financial consequences of doing so will present challenges in the eyes of the public.”
The fourth reason the board suggested for firing Shelton involved an accommodation request that was fulfilled too slowly, something McMackin chalked up to “a simple staff error” due to employee turnover.
“This would be like terminating the superintendent due to a bus accident,” he wrote.
'We are being watched'
In one of his emails, McMackin reminded the board that attorneys from the Delaware Department of Justice are watching the board, with the mandate to give a report to the legislature detailing any violations of the Freedom of Information Act as well as any recommendations for legislative changes needed to ensure the proper operation of the board.
He said he talked to a DOJ representative, who declined to say whether the monitor would come to meetings in person or watch them virtually.
“They do not want us to know when we are being watched or by whom,” McMackin wrote.
The DOJ wants to monitor closed-door executive sessions as well as the public portion of meetings. McMackin argued that case law allows the district to prohibit observers from executive sessions, but the DOJ responded by saying the department's mandate from the legislature trumps that case law.
McMackin told the board that he is concerned that the DOJ attending executive sessions will “destroy” attorney-client privilege when he provides legal advice to the board.
State Rep. Paul Baumbach, who spearheaded the effort to institute monitoring of the board, said previously that the legislature may need to look at ways to amend the law if Christina doesn’t change its ways.
“If they cannot get back on track, well, then you’ve got to have an intervention,” he said.
McMackin hinted that the DOJ might have other actions in mind, as well.
“They mentioned to me they are considering ways to take action against the district considering public turmoil, but they discussed nothing further,” he wrote.
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