Winslow’s appeal of termination denied

By Neal A. Johnson, UD Editor
Posted 5/11/22

Former Linn Elementary Principal Lorie Winslow said this week she will not pursue further her case against Linn R-2 following a decision by the Western District Court of Appeals on April 26 to uphold …

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Winslow’s appeal of termination denied

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Former Linn Elementary Principal Lorie Winslow said this week she will not pursue further her case against Linn R-2 following a decision by the Western District Court of Appeals on April 26 to uphold a lower court’s ruling that her termination was within the purview of the school board and that she had not been denied due process.

“I was disappointed by the court’s decision,” said Winslow. “I have no regrets and feel I was acting in the best interests of the students in my care. I had 28 very rewarding years in public education and have retired and am glad to be working in my present position in Osage County.”  

In affirming the decision, the appellate court noted that the school board terminated Winslow’s employment contracts as a school principal and administrator for the 2019-20 and 2020-21 school years. 

“The board’s decision was based on its conclusions that Winslow willfully and persistently violated the board’s regulations,” the court wrote, noting that Winslow’s appeal argued that the board’s decision was not supported by competent and substantial evidence, was not authorized by law, was arbitrary and capricious, and was made upon unlawful procedure. “The board’s decision is affirmed.”

In January 2020, Superintendent Dena Smith completed an evaluation of Winslow and notified Winslow that her contract as a principal would not be renewed and that Winslow could transition to a different administrative position as Director of Student Services. In February 2020, Winslow entered into an administrator contract with the board for the 2020-21 school year.

Winslow’s 2019-20 contract as a principal and her 2020-21 contract as an administrator provided that “[Winslow] is subject to and agrees to comply at all times with all of the provisions, duties, and requirements applicable to his or her position as directed by the superintendent or [Winslow] ’s immediate supervisor, and as stated in any applicable written performance standards or criteria, policies, rules or regulations of the district, whether adopted or modified before or after the effective date of this contract. [Winslow] acknowledges access to complete copies of all such performance standards or criteria, policies, rules and regulations and will be furnished with such copies as well as interpretations or explanations regarding the same upon request.”

Both contracts contained a provision regarding termination as well: “This contract may be terminated during its term, following notice and a hearing, for any good cause, including but not limited to any material breach or any cause stated by law for the termination of permanent or probationary teachers.”

REASONS FOR APPEAL AND AFFIRMATION

Winslow raised six points on appeal. 

The court noted that she argued that the board erred in terminating her employment contracts because: (1) the board’s finding that Winslow willfully and persistently violated board Policy 4630 by failing to turn in a completed summative evaluation and for lying in the evaluation was not supported by competent and substantial evidence because Winslow did not materially breach her contracts and there was no evidence of lying or willful or persistent violation of board Policy 4630; (2) the board’s decision was not authorized by law because Winslow’s disclosures of information were entitled to the “whistleblower” protections of section 105.055 and board Policy 4865; (3) the board’s decision was arbitrary, capricious, and unreasonable in that the board irrationally based its decision on insignificant charges; (4) the board’s decision was made upon unlawful procedure as board Policy 4820 was not mentioned in the notice of charges; (5) the board’s decision was not authorized by law because Winslow’s disclosure of a teacher’s identity was protected by the free speech clause of the First Amendment of the federal Constitution; and (6) there was no competent and substantial evidence to support the board’s decision to terminate Winslow’s 2020-21 employment contract (which had yet to begin at the time of the hearing).

“We find that there was competent and substantial evidence to support the board’s finding that Winslow willfully violated board Policy 4630 by failing to turn in completed evaluations in accordance with administrative directives and by misrepresenting the completeness of the evaluations,” the court wrote. “Because the board could reasonably find that Winslow willfully violated the superintendent’s administrative directive to turn in completed evaluations prior to March 23, 2020, the board’s decision to terminate Winslow’s employment contracts is affirmed. Because this ground is sufficient to affirm the board’s decision to terminate Winslow’s employment contracts, it is unnecessary to address Winslow’s second, fourth, and fifth points on appeal, which challenge separate grounds for termination.”

POINT ONE

Winslow’s attorney, David Moen, argued that the board erred in terminating Winslow’s employment contracts for her alleged breach of contract based on its finding that Winslow willfully and persistently violated board Policy 4630 by failing to timely turn in a completed summative evaluation and for lying in the evaluation. He noted there was no substantial and competent evidence to support the board’s finding as required by law, in that there was no indication that turning in the summative evaluation on March 23, 2020, was a material breach of contract, nor was there evidence of lying, or any willful and persistent violation of board Policy 4630.

On Feb. 27, 2020, an email sent to administrators read, “Since the board meeting has been moved to March 23, you get a little more time to do your summatives too! Please get those to me prior to March 23, 2020.”

According to Moen’s appeal, when “Winslow read the email, she mistakenly thought it said the evaluations were to be turned in by March 23, the day of the board meeting, as had been done in the past.”

During the 2019-20 school year, Winslow’s job responsibilities by board policy included conducting evaluations of all teachers under her supervision every two years. When Superintendent Dena Smith arrived in 2019, her requirements were more stringent than board policy, with the new superintendent wanting teacher evaluations done every year. 

Typically, teacher evaluations were completed and turned in before the March board meeting. Moen noted it is important to get teacher evaluations turned in before the board meeting so the board can make a decision on whether the teacher gets rehired.

Winslow sent out her newsletter to teachers on Sunday, March 16, 2020, reminding them to come by and discuss their summative teacher evaluations. On the following Tuesday, in her staff meeting, Winslow reminded her teachers to come in Thursday or Friday to meet with her.

On Friday, March 20, 2020, Winslow realized that three of her teachers had not yet come in to have a conference with her. That Friday, a little after 2 p.m., Winslow sent a reminder email to the three teachers to come to her office to go over their evaluations. 

“She did not know in advance that some of her teachers were going to be unavailable that day because they were in interviews with the superintendent to select someone to take Winslow’s job,” Moen wrote.

One of those teachers, JB, was unavailable because she was in an interview for Winslow’s job. Also on Friday, March 20, 2020, the superintendent sent Winslow an email saying the board had already decided to rehire all of its teachers for the coming year. 

Winslow testified the fact that teachers, having already been hired, significantly reduced the importance of the March 23, 2020, deadline to turn in her teacher summative evaluations.

On that Friday, Winslow completed all the summative evaluations. “Once she hit the button completing the evaluation and sent it to the teacher, Winslow’s role in making the summative evaluation report was done,” Moen wrote.

At 8:15 p.m. on March 20, 2020, JB sent an email to Winslow saying she didn’t see the reminder email in time before she left school and asked if she could come in next week. 

Winslow responded by email: “If you read it just hit the button that you read it. We can meet when you come in.” 

JB read her summative evaluation that evening at home and was positive in all respects, with Winslow stating, “I am proud to have her on staff.” 

JB confirmed that she had reviewed and verified the contents of the summative report. On the evening of March 20, 2020, the “Complete for Teacher Review” button was clicked by JB, thus completing the data-collection cycle of the summative evaluation process.

“Winslow wrote on JB’s evaluation that they had gone over the evaluation virtually because there was no signature from JB on the paper copy of the report because she was not available to sign it,” Moen wrote in his appeal. “According to Winslow, they had gone over it by email because that was the best they could do under the circumstances and still submit the paper copy of the evaluation by Monday, March 23, 2020. Nothing in board policy or [Network for Educators Effectiveness (NEE)] training says a summative conference cannot be initiated and even completed electronically by email.”

According to Attorneys J. Drew Marriott and Matthew D. Wilson of the EdCounsel Law Firm, however, “there was evidence admitted into the record without objection that Appellant knowingly failed to complete a teacher evaluation and lied about it.”

EdCounsel attorneys argued, “Clearly, Appellant did not meet with [JB], virtually or in person, on March 20, 2020, much less go over the summative evaluation with [JB] in any respect. Respondent, as the trier-of-fact, was free to conclude from this evidence that appellant not only failed to meet the March 23, 2020 deadline but also lied about it. This, in combination with her other conduct before and after the deadline, was more than sufficient for respondent to find that appellant knew of Mrs. Smith’s directive and willfully violated it. While appellant gave a number of excuses for her failure to timely submit complete evaluations as directed, respondent was not required to accept these explanations.”

According to Moen, the NEE teacher evaluation system summative report helps teachers understand their progress within the current evaluation cycle. It also meets state statutes and local policies regarding teacher evaluation, which requires that each teacher be evaluated and a standardized summative report reviewed with each teacher at the end of each evaluation cycle.

“Other than the NEE training, there are no other policies or procedures governing the district’s teacher evaluation process,” Moen argued.

EdCounsel noted that to terminate her contracts, the board only needed to find that Winslow acted willfully or persistently, claiming in its response that both standards are met in this case. “Here, there was competent and substantial evidence that Winslow previously failed to comply with multiple administrative directives, resulting in her losing her principalship,” the school’s attorneys argued. “There was also competent and substantial evidence that appellant willfully disregarded another directive from Mrs. Smith (and board policy) prohibiting disclosure of confidential health information. Thus, there is ample probative and admissible evidence supporting the board’s finding that appellant’s violation of Policy 4630 was persistent. For all of the reasons set forth above, appellant’s categorical claim that there was no evidence at all supporting the board’s decision finding a willful or persistent violation of Mrs. Smith’s evaluation directive simply cannot be squared with the actual record on appeal.”

In its ruling, the appellate court noted that Winslow’s primary argument in her first point is that the board was required to find that Winslow materially breached her contracts in order to terminate them and that her conduct with respect to the summative teacher evaluations was not a material breach of her contracts. The court ruled that “this argument fails to recognize that her contracts stated that the contracts may be terminated during the term, following notice and a hearing, for any good cause, including but not limited to any material breach or any cause stated by law for the termination of permanent or probationary teachers.” 

Section 168.114.1(4) provides that a permanent teacher may be terminated for willful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him or her. 

“Accordingly, the willful or persistent violation of, or the failure to obey, the published regulations of the board of education could supply good cause for the termination of Winslow’s contracts,” the court ruled. 

In this context, a willful violation requires proof of (1) an intent to act and (2) an intent to violate or disobey a particular law or regulation, according to the ruling, which noted that “willfulness is rarely susceptible of direct proof. Generally, willfulness may be established by evidence of a single violation of a rule coupled with the teacher’s prior knowledge of the rule.”

Board Policy 4630 required Winslow to comply with administrative directives. In its ruling, the court found that the Linn R-2 school board found that Winslow was familiar with board Policy 4630. With respect to the summative teacher evaluations, the board found that:

— On or about February 27, 2020, Smith directed Winslow to turn in completed evaluations before March 23, 2020, which included a conference with the teacher.

— On or about Monday, March 23, 2020, Winslow turned in an evaluation for teacher J.B. On the evaluation, Winslow had written, “We went over this virtually due to the virus,” and dated the evaluation as having occurred on March 20, 2020.

— On or about  March 23, 2020, when Winslow turned in the late evaluation, she had not gone over the evaluation with JB, either in person or virtually. Winslow actually met with the teacher on March 25, 2020.

— Winslow violated Mrs. Smith’s administrative directive to turn in completed evaluations to Smith before March 23, 2020.

Later in its decision, the board concluded that Winslow willfully violated board Policy 4630 by violating the superintendent’s administrative directive when Winslow failed to turn in completed evaluations in a timely manner and included a false statement on the evaluations indicating that a virtual conference had occurred when in fact no virtual conference had occurred.

“In this matter, competent and substantial evidence supports the board’s finding that Winslow willfully violated board Policy 4630,” the court ruled. “Based on the record, the board could reasonably find that a teacher summative evaluation is not complete until a conference or meeting occurred between the teacher and the teacher’s supervisor. The evaluation form itself states that a meeting is required. Further, NEE guidelines indicate that an evaluation is not complete until a conference is held with the teacher. Based on the record, the board could reasonably find that Winslow did not meet with the teacher prior to March 23, 2020. JB testified that Winslow never went over the evaluation with her virtually or in person until March 25, 2020.” 

According to court documents, Winslow wrote on JB’s evaluation, “We went over this virtually due to the virus.” Winslow wrote this comment next to an instruction that stated: “A summative meeting with my principal/supervisor was held, and I verify we reviewed the contents of this Summative Report, and it has been verified by the teacher.” 

Based on the record, the appellate court found that the board could reasonably find that Winslow’s comment about going over the contents of the evaluation with JB virtually was false. 

The record indicates that Winslow contacted JB around 2 p.m. on Friday, March 20, 2020, to meet with her about the evaluation. JB responded by email later that evening that she did not see Winslow’s email until JB had already left for the day and asked if the two could meet the following week. Winslow responded to JB’s email by stating: “If you read it just hit the button that you have read it. We can meet when you come in.” 

Winslow then submitted the evaluations on March 23, 2020, with the note indicating that Winslow and JB had gone over the evaluation virtually. The board could reasonably conclude that Winslow’s request that JB indicate that she had read the evaluation did not constitute a virtual conference or meeting between Winslow and JB in which they went over the evaluation.

“After considering the board’s findings and the evidence in the record, we find that the board could reasonably conclude that Winslow was required to meet with JB as part of the evaluation process; that Winslow did not meet with JB as part of the evaluation process by March 23, 2020; and that Winslow falsely stated on the evaluation that such a meeting occurred,” the court ruled. “Based on these findings and the evidence in the record, the board could reasonably conclude that Winslow willfully violated the superintendent’s directive to turn in completed evaluations prior to March 23, 2020, in that Winslow submitted an incomplete evaluation yet conveyed that the evaluation was complete. To the extent that Winslow argues that submitting the summative evaluations a day late would not support a finding of willfulness, we note that the summative report was not merely late, but also included a false statement. Winslow’s misrepresentation of the completeness of the JB evaluation supports the board’s finding of willfulness. That is, the board could reasonably conclude that Winslow intended to submit the evaluation even though it was not complete and, by misrepresenting its completeness, even though Winslow knew it was in violation of the administrative directive. 

“There was competent and substantial evidence in the record that Winslow willfully violated board Policy 4630,” the ruling continued. “A single willful violation may justify termination. Thus, the board could reasonably decide to terminate Winslow’s employment contracts. Point one is denied.”

POINT THREE

The appellate court considered Winslow’s argument that the board’s decision to terminate her employment contracts was arbitrary, capricious, and unreasonable because of her assertion that the board irrationally based its decision on insignificant charges. Winslow argued that the most significant allegations in the notice of charges were those relating to Winslow’s disclosure of a teacher’s medical condition and identity to two members of the school board and a high school principal.

Winslow noted that the board’s findings stated that these disclosures were not made part of its decision and argued that the charges on which the board did base its decision were “insignificant” in comparison to the charges that the board did not address. 

“The burden of establishing that an administrative body acted arbitrarily or capriciously is high[,]” the court ruled. “Whether an action is arbitrary focuses on whether an agency had a rational basis for its decision. Capriciousness concerns whether the agency’s action was whimsical, impulsive, or unpredictable. As a general proposition, it is not the role of a reviewing court to second guess the board’s determinations as to the significance of its rules or the consequences of their violation. In determining whether agency action is arbitrary, our focus is on whether the agency had a rational basis for its decision. As discussed in our analysis of Winslow’s point one, supra, the board could reasonably find that Winslow willfully violated board Policy 4630, which would constitute reasonable grounds for termination. Accordingly, the board’s decision was based on competent and substantial evidence and was not made on an irrational basis. Notably, Winslow’s arguments in point three do not relate to the board’s findings and conclusions relating to the board’s decision to terminate Winslow for her conduct with respect to the summative evaluations, aside from asserting that the charge was ‘insignificant.’ As the board could reasonably determine that such conduct was sufficient grounds for termination, it is unnecessary to address Winslow’s remaining arguments, which are difficult to ascertain, and seem to relate only to the board’s actions with respect to charges that it did not address and which did not form the basis for Winslow’s termination.”

The court noted that “Winslow’s argument seems to be that the board did not address the charges regarding Winslow’s disclosure to the two board members or the high school principal; and therefore must have found such disclosures to be protected by either board Policy 4865 or section 105.055; and therefore could not rationally find Winslow’s disclosures to [SW] to be unprotected. That is, Winslow contends that the board’s decision was irrational due to charges that did not form the grounds for termination rather than the grounds that did. Although the board did not address the charges cited by Winslow, it was unnecessary for the board to do so upon the board’s conclusion that sufficient grounds for termination had been established based on other charges. 

“To the extent that Winslow argues that the board’s exclusion of charges relating to Winslow’s disclosure of a teacher’s identity to board members results in an implicit finding that such disclosures were protected, we disagree,” the ruling continued. “The board made no such finding. Moreover, the circumstances of the disclosure to [DW] differed from the disclosures (to board members and a principal) not addressed in the board’s decision, in that

Winslow’s disclosure to [DW] was not a disclosure aimed at informing an authority figure but instead more closely resembled common gossip. We do not find the board’s decision to be arbitrary and capricious for the reasons asserted by Winslow. Moreover, as indicated above, Winslow’s arguments in this regard do not relate to the board’s finding that Winslow willfully violated board Policy 4630 as discussed in our analysis of point one, supra.

Winslow does not explicitly assert in point three that the board’s decision to terminate her employment contracts with respect to her conduct regarding the summative evaluations was a pretext for the violation of her rights. "However, for purposes of determining whether the board’s decision was arbitrary or capricious, we have examined Winslow’s arguments that her disclosure of AM’s identity to [DW] was a protected disclosure or protected speech (as she asserts in points two and five), but find that Winslow fails in those points to provide legal analysis or arguments sufficient to establish that such disclosure was protected under board Policy 4865 or section 105.055 (as Winslow asserts in her second point) or the First Amendment (as Winslow asserts in her fifth point)," the court ruled. "In her second point, which argued that the board’s decision was unauthorized by law due to Winslow’s disclosure to [DW] being protected 'whistleblowing,' Winslow completely neglected to address language in the ‘whistleblower’ protections of board Policy 4865 and section 105.055 which excluded from protection the disclosure of information that is confidential under any law. 

“Winslow makes arguments in point three that seek to challenge the board’s conclusion that Winslow violated board Policy 4630 by disclosing confidential information to [DW] on the basis that the board committed legal error in concluding that the information Winslow disclosed was confidential," the ruling continued. "However, Winslow fails to provide any legal reasons why this conclusion was erroneous and instead argues that ‘AM’s identity was basically public information’ without providing any legal citations or reasons as to why that would be the case. Moreover, Winslow does not assert error with respect to this finding in any of her points relied on. [A]rguments not contained in the point relied on and raised for the first time in the argument section of a brief are not reviewable. We do not find the board’s decision to terminate Winslow’s contracts to be arbitrary, capricious, or unreasonable. Accordingly, point three is denied.”

Moen argued that on Monday, March 16, 2020, despite fear of COVID-19, the school was still open. AM was in Winslow’s building and had also been in the cafeteria. 

AM told staff her fiancé was sent home from work due to possibly having the coronavirus. In the appeal brief, Moen noted that had been a lot of talk at school, mostly from AM, that she and her fiancé had recently traveled to Tennessee, which was under a state of emergency at that time due to COVID-19. AM told coworkers she probably should be home, too, and added, “But I’m here.” 

“AM was laughing about it,” Moen wrote. “Many staff were angry and upset over AM being at work.”

Later in the week, AM told coworkers how she and her fiancé drove up to a white tent for him to be tested for the coronavirus, and they didn’t even have to get out of the car to get tested.

On Tuesday of that week, AM had lunch in the classroom of a fellow teacher, along with three others. One reminded AM that she had been warned not to go to Tennessee because of the risk of COVID-19.

On Wednesday, March 18, 2020, AM informed Winslow and Emma Williams that her fiancé was showing COVID-19 symptoms and needed to be tested, according to Moen.

On Thursday, March 19, 2020, AM emailed Superintendent Smith and told her she was out for the day and explained that she and her fiancé were in quarantine and were trying to get tested after her fiancé showed symptoms.

Moen noted that after receiving the email from AM, Smith told five staff that were interviewing for Winslow’s job, which included JB, that AM was not in the interview because she had been out of state and was self-quarantining.

“According to the superintendent, disclosing to staff that AM had been out of state and was quarantined was not confidential because it did not relate to anyone’s health information,” Moen argued. “Apparently, it was public information.”

Also on Thursday, March 19, 2020, DW overheard Winslow reading a text message, saying that AM’s fiancé had just been tested for the coronavirus, and they would both be in quarantine for 14 days.

On Friday, March 20, just before noon, AM called Winslow on the phone and said her fiancé had tested positive for the coronavirus. AM said that she would now need to be tested. During that call, one of the teachers who had eaten lunch with AM said she knew it was her because of what AM had been telling staff Monday through Wednesday. Winslow confirmed that it was AM and then told high school principal Tim Bower that AM, who also worked in the high school building, had a fiancé that tested positive.

“There is no board policy that informs staff that information about a household member’s health condition should be kept confidential,” Moen wrote. “There is no reason why Winslow should know of any board policy making what she disclosed confidential.”

In a phone call, Winslow told Smith later that day that she had confirmed the identity of the caller as AM, at which time the superintendent told Winslow to keep the identity of AM confidential. 

“Rumors were spreading faster than the virus,” Moen wrote. “On that Friday afternoon, a lot of people at school (not including Winslow) were talking about AM’s fiancé testing positive.”

One teacher learned of the positive test from her sister-in-law. There were a couple of people at State Tech who knew of AM’s fiancé testing positive because they had been quarantined due to possible exposure to him. The school secretary knew about AM because one of those quarantined due to AM’s fiancé was the secretary’s daughter.

After learning of her fiancé’s positive test, AM told one teacher and later texted Emma Williams and confirmed the positive test.

“After learning of the positive test, Winslow was very upset that AM had been at school and around children and other staff Monday through Wednesday,” Moen noted. “Winslow wanted the superintendent to provide some kind of notice to all staff in the district, and to the public, about AM’s possible contact with and exposure to others at school. Superintendent Smith disagreed. She believed all the district could do was tell staff to wash their hands and follow universal precautions. Nonetheless, even

AM believed that those who had direct contact with her Monday through Wednesday needed to know she was the person whose fiancé tested positive.”

On March 20, 2020, a staff member approached Winslow with her concern about being exposed to the virus. “She told Winslow that she knew AM was in quarantine,” Moen wrote. “The staff member told Winslow that her husband has only one lung, and she was very worried about taking the virus home to him. Winslow was really bothered that she could not give that staff member more information. However, the superintendent believed that AM’s presence at the school Monday through Wednesday posed no risk to others.”

Later that night, on Friday, March 20, 2020, Winslow texted school former board member Neil Loethen and explained to him that AM had been at school all week and that AM’s fiancé tested positive that day. 

Board member Loethen was asked by Moen:

Q. Did she talk to you about something she felt was a specific danger to the public health or safety?

A. Yes.

Q. Did she come to you with an eye towards hoping that you would help her address that?

A. Yes.

Q. And is it your feeling that the school board is the entity that has oversight over the superintendent?

A. Yes.

Q. And is it your belief, based upon board policy, that it could possibly be the school board that investigated whether there was any misconduct on the part of the superintendent?

A. Yes.

Q. And it might also be true that the school board might want to look into whether there was a danger to public health or safety that had been described by Ms. Winslow?

A. Yes.

Loethen then contacted Smith and told her the district should make some kind of announcement that a staff member was exposed to the virus. 

“Superintendent Smith disagreed,” Moen noted. “She said she was only going to follow the advice of the county health department. Board member Loethen understood that a person could be contagious even if they are not showing symptoms. The superintendent believed at the time that it would violate the Health Insurance Portability and Accountability Act (HIPAA) to reveal anything about AM. The superintendent later learned that HIPAA did not apply to the decision by a school district to disclose the identity of an infected person.”

At Loethen’s request, on March 20, 2020, the superintendent issued a statement to the public via the district’s Facebook page and to staff through email. The Facebook page stated: “A family member of a staff member of the Osage County R-2 School District has tested positive for COVID-19. At this time, the family is following health department and CDC guidelines and is in self-quarantine at home. Those who test positive for COVID-19 will be required to isolate at home until they are able to test negative for COVID-19 twice, according to health officials. As you are aware, we are currently out of school, and the staff member will not be back in district buildings until after the period of quarantine has elapsed. Though we know you will have many questions and concerns, in order to protect the privacy of the individuals involved, the district is incredibly limited as to the information it can share with the public. However, the district is working directly with health officials regarding next steps, and the Missouri Department of Health and Senior Services (DHSS) and the CDC will identify and contact people who may have come into contact with the individual while they were infectious and will monitor them for fever and respiratory symptoms. Unless you are contacted by health officials, it is unlikely that you were exposed to COVID-19 by the current positive case. We continue to thank our community for your support and patience during these unprecedented times. We are continuing our work to ensure staff, students, and the community are safe and informed.”

According to testimony offered by DW, she noted that she and Winslow communicated via text about the situation as it related to public concern for health and safety and not as it related to school business. Nor were they discussing the possibility of getting into trouble at school.

Former board member Tye DeCramer told Moen that he did not take a side when listening to Winslow’s complaint.

“I usually don’t give a, like I agree or I disagree,” DeCramer said. “I just kind of say, okay, I understand what you’re saying. I just listen to what the complaint is.”

Q. So, is it your testimony that her identification of [AM] was the communication to you that there was some sort of imminent safety risk at the school?

A. Yes. She was concerned about [AM] having COVID and not everybody knowing about it.

Q. Okay. Did she tell you that she had COVID?

A. No. She said there was a threat of it, apparently.

“The Superintendent felt Winslow should be terminated for disclosing an emergency to the board members and to the public,” Moen wrote in his appeal. “The Superintendent felt that Winslow telling Mr. Loethen, Mr. DeCramer, and DW about AM violated Superintendent Smith’s administrative directive not to say anything about AM. The superintendent testified it would have been grounds for termination had Winslow gone to the police and reported the information given to board members, even if what Winslow reported was an emergency. Nonetheless, the superintendent admitted there is no evidence that any of Winslow’s disclosures of AM’s identity caused any problem for the district.”

Bower, Loethen, and DeCramer did not participate in the termination hearing.

EdCounsel attorneys noted that Winslow conceded at the hearing that she knew A’Ms health information was confidential.

“Mrs. Smith expressly directed Appellant to refrain from disclosing this information prior to the disclosure to [DW],” EdCounsel wrote. “Appellant nevertheless contends (without any citation to the record) that she did not disclose confidential information to [DW] because the same information had already been disclosed to other staff by Mrs. Smith and [AM]. Beyond being entirely unsupported, this assertion is demonstrably false. Outside of the district’s statement regarding the situation (which did not identify [AM], Mrs. Smith’s only prior disclosure was informing (with [AM’s] permission) a group of staff members interviewing for appellant’s position (which included [AM]), that [AM] had been out-of-state and was self-quarantining. [AM] herself only revealed that her fiancé was exhibiting certain symptoms (fever, coughing, and a sore throat) and being tested to a trusted confidante.”

EdCounsel noted that despite all of the evidence to the contrary, Winslow maintained that there was no disclosure of confidential information because [DW] already knew the information that Winslow disclosed.

“However, if [DM] already knew, she would not have requested the information from appellant in the first place,” EdCounsel wrote. “Indeed, [DW] expressly indicated that she was “guessing” that [AM] was the unnamed employee in the text message exchange.”

According to EdCounsel, Winslow’s argument that the respondent’s decision narrowly focused on “insignificant” charges ignores the dispositive issue — that the appellant’s contracts could be terminated for any willful and/or persistent violation of board policy. 

“In other words, there were no ‘insignificant’ charges,” EdCounsel attorneys wrote. “Not every single charge against the Appellant was derived from her disclosures to Tim Bower, Tye DeCramer, and Neil Loethen, and so their exclusion from the board’s decision had no bearing on the validity of the other charges.”

POINT SIX

In her sixth point on appeal, Winslow argued that the termination of her 2020-21 administrator’s contract was not supported by competent and substantial evidence. 

At the time the statement of charges was issued to Winslow, she had a contract with the board as principal for the 2019-20 school year. Winslow had also entered into a contract with the board as an administrator for the 2020-21 year. 

“Essentially, Winslow argues that, because performance on the 2020-21 contract had not yet begun, there was no evidence that Winslow had breached the 2020-21 contract,” the court wrote in denying this point. “The board found that termination of Winslow’s upcoming contract was warranted based on her conduct prior to the commencement of performance on that contract. A willful violation of board regulations was sufficient to justify termination of both Winslow’s 2019-20 contract as principal and her 2020-21 contract as administrator. Simply because this conduct occurred prior to the commencement of the 2020-21 contract did not preclude the board from terminating Winslow’s employment with respect to the 2020-21 contract.”

Winslow appealed the board’s decision to the 19th District Circuit Court, where it was upheld by Judge Jon Beetem.

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