Concord School District seeks to dismiss lawsuit seeking investigator’s report into Leung

  • Paulaczeck Lesmerises (right) stands with others before the Concord School Board meeting on Monday night, September 4, 2019 at the Mill Brook School. GEOFF FORESTER

Monitor staff
Published: 1/24/2020 4:02:58 PM

Nothing is stopping the Concord School District from giving the public a look at portions of a 100-plus page report into school officials’ handling of sexual misconduct allegations, a lawyer advocating for the disclosure of the report argued Friday.

School districts and municipalities commonly reveal information publicly that could be shielded by an exemption in New Hampshire’s right-to-know law, said Gilles Bissonnette of the American Civil Liberties Union of New Hampshire. The law does not mandate secrecy, it calls for maximum disclosure, he said.

But when it comes to the Concord School District’s handling of complaints against former teacher Howie Leung, school officials have incorrectly made the determination the public does not have the right to know what went wrong and why, the attorney said.

“The effect of the district’s decision here is to shut the public out and to protect individuals who have engaged in wrongdoing,” Bissonnette said.”I’m not saying that’s their motive, but it’s the effect of their decision.”

Bissonnette was speaking in front of Judge Brian Tucker at a hearing Friday in Merrimack County Superior Court to dismiss a lawsuit filed by the American Civil Liberties Union, the Concord Monitor and Concord parent Dellie Champagne.

The suit seeks to obtain a report completed in September by Massachusetts attorney Djuna Perkins, who was hired to investigate the district’s response to student reports of inappropriate behavior Leung in 2014 and 2018.

Leung, who was employed in the district for 13 years, was arrested in April and charged with sexually assaulting a former student. His inappropriate behavior with the female student allegedly began when she was in middle school.

The district’s lawyer, Dean Eggert, argued the entire report is “categorically exempt” from disclosure and no part of it should be made public.

“It is the position of the Concord School District that as tragic as these circumstances were, and in no way does the district wish to diminish the significant tragedy that unfolded within its district, that our Supreme Court, even our constitution, has recognized that there will be these harbors, when in order to allow public entities to engage in the repairs they need to foster the ability of public employees and students to speak openly and candidly to investigators without Channel 9 being here like they are today, photographing what they do,” Eggert said. “We need to create that environment.”

Since Leung’s arrest, members of the community said they came forward with concerns about Leung’s behavior before his arrest but nothing was done. Current Concord High School senior Ana Goble was suspended by Principal Tom Sica when she was a student at Rundlett Middle School in 2014 for saying Leung’s behavior with some female students made her feel uncomfortable. Sica accused her of spreading gossip.

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 unreliable.

It is not known if other complaints were made about Leung or if district officials had investigated his interaction with female students in the past. School officials have repeatedly refused to answer those questions and the contents of the report may prove revealing.

Two days after receiving Perkins’s report, the school board voted unanimously to terminate the contracts of Sica and Superintendent Terri Forsten without any public explanation.

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.

On Friday the board sought to dismiss the lawsuit filed by the Monitor, the ACLU, and Champagne to obtain the first 102-page report from Perkins.

“The report petitioners seek is the quintessential example of an internal personnel practice exempted from New Hampshire’s Right to Know Law by RSA 91-A:5, IV,” the district wrote in its motion to dismiss the case. “While Petitioners may not like the law as it currently exists, they, the District, and this Court are bound to adhere to that law unless and until it is changed by the New Hampshire Legislature or the New Hampshire Supreme Court.”

The suit against the school district is similar to two others the ACLU is 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 Portsmouth Herald took the city to court for access to a mediator’s report related to the dismissal of police Officer Aaron Goodwin, who was named the beneficiary of an elderly woman’s $2 million estate. The city of Portsmouth agreed to the release of the report, but the police union argued it was exempt, citing the Fenniman case.

The Union Leader is seeking unredacted copies of an investigation into the Salem Police Department’s handling of internal affairs investigations, citizen complaints and retention of internal investigations records. They have received a copy of the report with the names of employees who have been the subjects of the disciplinary process redacted.

In both of those cases, the newspapers have received some, but not all public records.

Concord chose to provide no records at all to the public.

Bissonnette argued there is information in the report that can be released that does not fall under the “personnel practices” exemption.

He asked Tucker to review the document himself to determine if there is information that can be released to the public that is not considered a “personnel practice.”

“This report already your honor is three, almost four months old. I have a concern that the longer we go from the creation of that report, that report is getting stale,” he said. “Members of the community want access at least to some portions of the report and I really fear long delays.”

“We think the public now is entitled to at least some portions of the report that under current law don’t fit the definition of internal personnel practices,” he added.

As long as the public has no knowledge of where the system failed, it has no ability to fix it without that knowledge, Bissonnette said.

Eggert argued that it was unnecessary for the judge to read the report to make his ruling.

“I want to concede very clearly that there is a public interest, but even our constitution and our legislature, when they adopted this exemption, waived that. You are being invited to second guess that,” he added, to Tucker. “He is inviting you to read an 102-page report with interviews from 37 educators and 10 students, only two of whom are represented, and begin to make those judgements in advance of, and bypassing a clear categorical exemption.”

Eggert said that although a lawyer has intervened in the case representing the interests of two students interviewed for the report, there are many others whose interests are not being represented.

Bissonnette said that the ACLU and others seeking the report are not interested in exposing the identities of students and would work hard to protect their interests.

“This report likely demonstrates – we don’t know because we don’t have it – but based on the subsequent report from the investigator, likely demonstrates serious failures on how the district responded to allegations that Mr. Leung was abusing children. Two high-level officials in the district were ultimately terminated as a result. Publicly, the district has said absolutely nothing about why those individuals were disciplined,” Bissonnette said.

“They are articulating this before the court as a justification of showing its good faith and all the work its done, but it hasn’t been transparent at all with the public about what the district did and what the district knew and why those particular individuals were actually terminated.”

(Leah Willingham can be reached at 369-3322, lwillingham@cmonitor.com or on Twitter @LeahMWillingham.)


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