17 April 2023

Kevin Sutton Interviewed for Detroit News Article on School Boards

***On April 15, 2023, Kevin Sutton was interviewed for a Detroit News article authored by Jennifer Chambers.***

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Board caused Rochester schools chief’s medical leave, lawyer claims

A letter obtained by The News shows an escalation in rhetoric from Superintendent Shaner’s lawyers to the board.

The Rochester superintendent is on medical leave because his board of education failed to protect him from “personal attacks” causing “intense emotional distress” by one of its trustees, according to a letter obtained by The Detroit News. Rochester Community Schools Superintendent Robert Shaner hired legal counsel to review the conduct of the elected board and specifically that of Andrew Weaver, an outspoken trustee who began his term Jan. 1 and who the superintendent claims has no free speech protections.

According to a letter obtained by The News, Shaner’s lawyers are asking for negotiations with the board and say their client will not be forced to resign from his post. Attorney Sue Ellen Eisenberg wrote in the March 29 letter that Weaver’s attacks violate board bylaws and codes of cooperation, significantly disrupt board functions and have caused Shaner irreparable injury.

Weaver, who has children in the district, had been highly critical of the district’s decisions over masking and keeping schools closed during the COVID-19 pandemic. He has created a trustee Facebook page for discussions on the district and a blog on the district.

“These publications enjoy no First Amendment protections, yet the board —Dr. Shaner’s employer —has done nothing to stop them, despite repeated requests for Board intervention,” Eisenberg wrote. “Indeed these malignant publications have metastasized with the Board’s knowledge and acquiescence.”

The letter listed examples of comments Weaver allegedly made that Shaner considered harassment, including calling Shaner an “absentee leader” and an employee “who shirks his responsibilities” and when Weaver characterized the district’s strategic plan, carried out by Shaner, as a “failure.”

In another matter, Weaver posted a story and photos on Facebook about a school field trip that resulted in other people calling Shaner a “pedophile, a groomer and a pervert.”

Shaner, who earns $307,125 a year, a took a leave of absence from the Oakland County school district earlier this month, but did not publicly disclose any reason. He alleges Weaver has a personal vendetta against him.

In recent years, Shaner has become a controversial figure in the district, especially after he admitted under deposition last year the district followed parents’ social media posts; created dossiers on those critical of the district’s decisions and who called for reopening of schools amid the pandemic; and then contacted their employers or alerted police.

One of those parents was fired shortly after the district contacted her employer about a posting. She sued the district and won an $188,750 settlement.

Shaner did not respond to several requests for comment. Eisenberg did not respond to repeated requests to discuss the letter, her client and the allegations. Board President Michelle Bueltel did not respond to multiple requests for comment.

Asked how the district has responded to Shaner’s letter, district spokesperson Lori Grein declined comment, only providing this response to all questions: “Rochester Community Schools is committed to providing a quality education in a caring atmosphere for students to attain the necessary skills and knowledge to become lifelong learners and contribute to a diverse, interdependent
and changing world.”

Weaver, who says he is speaking as a citizen and not as a member of the board, told The News on Friday that his views are not a personal attack on Shaner. He said he is asking questions about board policies and wants to see more accountability on whether current systems are working, such as the district’s strategic plan.

“Our board has failed to provide oversight to our superintendent and district,” Weaver said. “The superintendent works for the school board. Our board feels it goes the other way around. We don’t ask questions.”

What the letter says
Eisenberg wrote that Shaner formally reported Weaver’s conduct to the board, imploring them to bring Weaver into compliance with policies and protocol before he began his term on Jan. 1. Shaner on Dec. 15 told then-board President Kristin Bull and incoming president Bueltel that he felt harassed by Weaver, the letter says. On Dec. 19, Bull acknowledged that Shaner was
being harassed by Weaver.

In a Dec. 21 letter to the board, Shaner threatened legal action if the board does not take action against Weaver to get him to comply with board protocols. Weaver told The News the board has not responded to the Dec. 21 letter.

Asked if the board has responded to Shaner’s March 29 letter, Weaver declined to comment and referred the question to Bueltel, who did not respond.

The Eisenberg letter states the board acknowledged Weaver’s conduct and Bull set up a telephone meeting on Dec. 22 with Bueltel and Weaver. During that meeting, Weaver was told that board members are “required to show respect” for the administration and that the board speaks through its president only.

In January, the board voted to censure Weaver through a disclaiming motion for allegedly sharing communications between public officials with the public.

On Feb. 6, Shaner told Bueltel “the adverse impact” Weaver is having on him and members of his team and the environment had caused him “intense emotional distress and damaged his professional reputation,” according to the letter.

Bueltel told Shaner there was nothing that could be done to stop Weaver, Eisenberg wrote in the letter, which forced Shaner to take a short-term medical leave.

“No amount of money can sufficiently compensate Dr. Shaner for being subjected to constant unlawful personal attacks,” Eisenberg wrote. “Dr. Shaner’s physical health has suffered, his emotional health has suffered and his professional reputation has suffered.”

Attorney: There’s no panacea
At a Feb. 2 school board work session, attorney Kevin Sutton gave the Rochester school board a presentation that included a response to a common question he said he has been receiving from other superintendents and school boards about the behavior of school board members.

“I will tell you in full disclosure and candor, in the last couple of years I’ve gotten more questions from superintendents, more questions from boards of education, about the manner in which people are acting,” Sutton said. “And they don’t like it. And it’s not dignified. And it’s not respectful. And Kevin, give us a panacea. Point to the thing that says we can stop it. Point to the thing
that says they can’t do it. Point to the thing that will shut it down. There is no thing. There is no thing.”

Brad Banasik, legal counsel for the Michigan Association of School Boards, said harassment is not protected speech. Harassment is defined in Michigan’s Elliott-Larsen Civil Rights Act, which bans discrimination in Michigan against anyone on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status.”

A July Michigan Supreme Court ruling found Elliott-Larsen included protections for gay and transgender individuals under the definition of sex.

“Now what about bullying speech? That is something that falls outside Elliott-Larsen. It may be speech that is attacking somebody, but it’s attacking them not based a on a protected class under” the state law, Banasik said.

The speech needs to be addressed if its creating a negative or adverse working environment, Banasik said. While the board has no authority to remove an elected member, its president can speak to the member in question and the board can approve a censure or a disclaiming motion when comments cross a line or become discriminatory, he said.

“There is only so much a board can do,” Banasik said.

Sutton, the attorney who said he gets monthly calls from board leaders seeking advice over the “perceived misbehavior” of another board member, said boards have the option of petitioning the governor to remove a board member but he in the last 20 years is not aware of that being done.

“Boards of education, we operate on norms of professionalism and civility. Many boards, and I think Rochester Community Schools falls into this, have a board where they agree to operational norms such as ‘We speak as a board, not as individuals,'” Sutton said. “You hope for civility. That doesn’t mean suppression of opposing viewpoints. But there is a way to do it that is
respectful and civil.”