TCAPS board could release 'Kelly document' Monday

·5 min read

Jun. 11—TRAVERSE CITY — A letter at the center of the controversy surrounding the departure of a superintendent at northern Michigan's largest school district may soon be released, after a nearly two-year-long legal battle.

Traverse City Area Public Schools Board of Education trustees will enter a closed session Monday to hear at least two legal opinions regarding release of a six-page complaint letter penned against former Superintendent Ann Cardon in October 2019. A motion to release the letter is expected after the closed session concludes.

Current TCAPS board President Scott Newman-Bale and Superintendent John VanWagoner both said Wednesday that there is no question of whether the letter will be released, only the procedures for its disclosure.

"I think we thought it would be easier than it was," Newman-Bale said. "It's kind of a weird, complicated thing that isn't a huge deal, but we just ran into some procedural issues at the last minute. No one is trying to suggest that it shouldn't be released. We're just trying to go through the steps."

The Record-Eagle, in January 2020, filed a lawsuit against TCAPS and then-Board President Sue Kelly, who authored the letter against Cardon, alleging violations of the Open Meetings Act and the Freedom of Information Act. Thirteenth Circuit Court Judge Kevin Elsenheimer ordered the release of the letter in July 2020. TCAPS legal counsel later appealed the decision, but the Michigan Court of Appeals upheld Elsenheimer's ruling last month.

The three-judge panel ruled TCAPS inappropriately claimed an Open Meetings Act exemption allowed them to shield the letter from the Freedom of Information Act without a court order to release it. TCAPS argued the letter was part of the closed-session meeting minutes, which are exempt from FOIA. The Appeals Court decision set a binding state precedent and closed a loophole that would have given cover to public governing bodies statewide to conceal records that otherwise would be subject to FOIA.

TCAPS has the option to appeal the court's ruling, but Newman-Bale and others suggested that is not a route they want to take. Newman-Bale has been vocal about wanting to resolve the lawsuit and move on from past wounds.

The Record-Eagle submitted several FOIA requests in the days prior to Cardon's controversial brokered departure on Oct. 17, 2019. One request was for a copy of "the letter distributed to Traverse City Area Public Schools Board of Education members on Oct. 7, 2019, regarding a complaint against TCAPS Superintendent Ann Cardon."

TCAPS officials denied the request, stating the "documentation that was specifically and exclusively prepared for use in a closed session of the Board. Such notes/documentation are exempt from disclosure under Section 13(1)(d) of the FOIA and Section 7(2) of the Open Meetings Act." TCAPS also denied a subsequent appeal from the Record-Eagle in November, prompting the newspaper to file lawsuit seeking the record.

The board's actions also drew heavy criticism parents and community memnbers and resulted in the formation of TCAPS Transparency, a group demanding accountability from the district and its elected representatives. Justin Van Rheenen, a co-founder of TCAPS Transparency, said the court rulings and eventual release of the letter is affirmation to the Record-Eagle and the public that they were on the right side of the fight.

"Why was it worth hiding for this long and through this many appeals and lawyers and legal fees? It just seemed like a waste of time and energy and money for the district when they could be focused on other things," Van Rheenen said.

Newman-Bale said he has reviewed the letter and that there won't be any revelations about why Cardon resigned aside from what has already been made public.

"There's no smoking guns. It's relatively — maybe not terribly — but relatively mundane," Newman-Bale said.

The Oct. 7 closed session was the point of no return for Cardon, but tensions between the former superintendent and others in the district were building for at least six weeks before the meeting. There were rumblings that Cardon had not yet met with the teachers union, and emails provided to the Record-Eagle through a FOIA request showed problems between former trustees Jane Klegman, Jeff Leonhardt and Pam Forton regarding Cardon's communication skills.

There was also the widely publicized difference of opinion on the School Finance Research Collaborative.

Trustees drew a battle line in the fight for equitable state funding in May 2019, unanimously approving a resolution that called for all districts to be funded at the same per-pupil figure and disavowed the conclusions from a Michigan SFRC study. Kelly previously confirmed the differences between Cardon and some board members about equitable funding and the SFRC was a cause of friction. Some believe Cardon's support of the SFRC ultimately made the relationship with the superintendent untenable.

Van Rheenen said they will just have to wait and see what is in the letter, but he added some in the community are ready to call for Kelly's resignation. TCAPS Transparency led a charge to recall Kelly in 2020, but the COVID-19 pandemic derailed that effort.

"Our position within TCAPS Transparency hasn't changed with that," Van Rheenen said. "We believe she should have been recalled or resigned when we went through this before."

Newman-Bale confirmed Kelly will not be at the meeting Monday, having previously planned a vacation. Newman-Bale said Kelly's absence is not a concern because she has been "nothing but supportive of releasing the letter" since he began his tenure on the board in January.

"She's been productive, and there hasn't been any conflict," Newman-Bale said. "It's unfortunate for herself, but it isn't a problem for me or the rest of board."

Kelly did not return a call for comment.

A status conference regarding the remaining claims of the Record-Eagle's lawsuit against TCAPS is slated for June 21.