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ACLU and Monitor file suit against Concord School District for investigator’s report

  • Residents hold up signs at Monday night's Concord School Board meeting at Mill Brook School. GEOFF FORESTER

Monitor staff
Published: 11/19/2019 12:45:08 PM

The Concord Monitor has filed suit with the American Civil Liberties Union to obtain a 100-plus page report by an independent investigator into Concord School District officials’ handling of misconduct allegations against a former teacher charged with sexual assault.

The suit, filed Monday night in Merrimack County Superior Court against the school district, mirrors two others that the ACLU is in the midst of litigating at the state Supreme Court regarding a growing exemption in the right-to-know law around “internal personnel practices,” which is being used by government entities to shield information about employees’ work history, including records that would be evidence of misconduct.

The report sought by the Monitor, the ACLU and Concord parent Dellie Champagne was completed on Sept. 23 by Massachusetts attorney Djuna Perkins, who was hired to investigate the district’s response to student reports of inappropriate behavior by former special education teacher Howie Leung in 2014 and 2018.

“To withhold this information in the report – which was funded by Concord taxpayers at a rate of $245 per hour – is deeply damaging to government accountability, undermines the public’s confidence in the District as a whole, and creates the impression that the District is attempting to protect itself by withholding evidence of improper conduct or a failure to act,” the suit states.

Leung, who was employed in the district for 13 years, was arrested in April on charges of sexually assaulting a former student.

Since Leung’s arrest, members of the community have said they shared concerns about Leung’s behavior. Current Concord High School senior Ana Goble said she was suspended by Principal Tom Sica for spreading gossip when she was a student at Rundlett Middle School in 2014 for saying Leung’s behavior with some female students made her feel uncomfortable.

In December 2018, several female students reported seeing Leung kiss a female classmate in a car outside the high school. As school administrators investigated, Concord High School guidance counselor Karen Slick and art teacher Jeff Fullam – in their roles as union representatives – tried to discredit and disprove the student accounts, saying the girls likely didn’t see what they reported and argued eyewitness testimony is often unreliable.

Two days after receiving Perkins’s report, the school board voted unanimously to terminate the contracts of Sica and Superintendent Terri Forsten, but the board has not disclosed the reasons for Sica and Forsten’s removal or the contents of the report, citing that it falls under the personnel exemption, even after multiple requests from the Monitor, the ACLU, Goble’s family and other community members.

The board released a second 10-page report from Perkins on Oct. 30 proposing “recommendations” for the district going forward, but that report sheds no light on what administrators did or did not do following students’ reports of misconduct against Leung.

“The public … has had no ability to meaningfully vet the adequacy of the recommendations proposed in the October 30, 2019 report without knowing how the district responded to allegations that Leung was abusing students,” according to the suit, filed by ACLU-NH Legal Director Gilles Bissonnette.

Board members have indicated in interviews and by their termination of Sica and Forsten there was evidence of wrongdoing.

School board president Jennifer Patterson said she understood the community wanted more information and pledged openness after the discipline phase was complete.

“I think once we’ve gotten through the part of our process, where we figure out what happened and what we do about it, as a board running a school district, then we want to be as transparent as possible, both about what we’re doing, and what went wrong,” Patterson said in an interview with the Monitor on Sept. 26. “I mean, we really do want to talk to the community about what went wrong.”

Weeks later, at a candidate forum held at Concord High School on Oct. 29, school board member Pam Wicks similarly acknowledged the community’s desire for more information.

“I understand that people are confused and hurt and angry, and they should be,” Wicks said. “Mistakes were made.”

Bissonnette cited some of those remarks in the lawsuit.

“Despite these ‘mistakes’ and the strong suspicion of possible negligence by district administrators, the district has kept its citizens in the dark as to what the district knew and did,” the suit states.

The suit stipulates that no information is sought from the district that would lead to the identification of victims and their families, as well as witnesses who are/were not employed by the Concord School District. The ACLU and the Monitor request that a redacted version of the report be released to the public that does not include identifying student information and notes the report, as written, does not contain student names.

“Even assuming significant portions of the September 23, 2019 report would reasonably identify students, their families, or non-governmental witness, it would be implausible to believe the District’s position that every sentence in every page of the report’s 100 pages contains such identifying information,” the suit reads. “Non-identifying information in the report, including its conclusions, must be disclosed so the public will know ‘what the District was up to.’ ”

Monitor editor Steve Leone said in a statement Tuesday that it’s vital to the future of the school district that members of the community understand how the district responded to allegations of sexual assault by one of its teachers.

“Our quest for information has never been about compromising the privacy of anyone who came forward. It’s been about the safety of children and the accountability of the school district,” Leone said. “We have heard from many members of the community, and we have attended all public hearings on this issue. The public needs to know how its leaders responded, and the Monitor will keep fighting to ensure transparency.”

As the ACLU filed its suit against the school district, Bissonnette will appear in the New Hampshire Supreme Court on Wednesday for two arguments on separate lawsuits regarding the personnel exemption in the state’s right-to-know law.

One of the lawsuits, Seacoast Newspapers, Inc. v. City of Portsmouth, challenges a trial court’s decision to keep private an arbitrator’s report in an employment action filed by a former Portsmouth police officer who was terminated after receiving an inheritance in excess of $2 million from an elderly woman with dementia.

Union Leader Corp. and ACLU-NH v. Town of Salem requests complete, unredacted copies of reports investigating the Salem Police Department, which have been redacted and shielded from public view. Specifically, the documents are a 120-page audit focusing on internal affairs complaint investigations, a 15-page document on the department’s culture, a 42-page audit focusing on time and attendance practices, a 14-page response to the audit, and a two-page memorandum discussing the findings.

“These cases dealing with how to interpret the ‘internal personnel practices’ exemption are incredibly important for government accountability in New Hampshire,” Bissonnette said in a statement. “How this exemption is currently interpreted has enabled government agencies like Salem, Portsmouth, the Concord School District and others to hide volumes of information concerning government employees, including potential misconduct, that would allow the public to hold the government accountable.

“Indeed, there have been numerous recent examples of agencies withholding valuable information under this exemption. But the right-to-know law is designed to be a critical check against a government entity’s instinct to insulate its officials from public scrutiny for their official actions. The Supreme Court has suggested that it may be open to reconsidering the scope of this exemption, and we hope the Supreme Court does so in these important cases,” he continued.

Champagne is a Concord parent of two, whose son attended Rundlett Middle School while Leung worked there. She was the head of the school’s parent-teacher organization for a time.

Champagne said she wants the report to be made public so the community can learn from the mistakes that were made to ensure student safety in the future.

“As families, we put our trust in our schools, and the people who run them. Unfortunately, this trust has been deeply undermined by a small number of Concord School District administrators,” Champagne said. “This lawsuit allows us to better understand what went wrong so that it may never happen again. It also allows us to hold accountable those who betrayed our trust. Reviewing this report is the first step in allowing this community to heal.”

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