In the first lawsuit (but not the last) filed the against Douglas County School District due to actions taken by then-board majority members, both the district and individual trustees were found liable for attorney’s fees and costs.
The board majority included Trustees Susan Jansen, David Burns, Doug Englekirk, and Katherine Dickerson and reigned from Jan. 2023 until the recent election unseated Englekirk and shifted the scales.
After being found to have unlawfully withheld public records, DCSD and each of these trustees are ordered to pay petitioners a total of $166,081.16, $70,000 of which trustees are liable to pay themselves.
What this means is, the district could propose to pay the full debt, or one trustee could pay $70,000 on behalf of the others. However, until the full amount is paid, each party is liable for the entirety of their portion.
If trustees each agree to pay their fair share of the $70,000, each will need to pony up $17,500.
The lawsuit
Issues began on the first day the 2023 board assembled. Community members noticed the four trustees, three of which were newly elected, appeared to have coordinated elections of officers prior to the meeting against state law.
At the beginning of each year, board elections are held to determine who should hold the positions of president, vice president, clerk, etc.
Suspicions were correct: the four trustees already knew who would fill each position because they had been conversing via text message, email and in-person meetings outside of official meetings to conduct unlawful board business.
Burns even brought a clerk’s bell to the meeting in anticipation of his appointment, according to the lawsuit.
Community members, who eventually would become petitioners in the lawsuit, put in a record’s request seeking public records contained within DCSD’s servers as well as trustees personal cell phones and electronic devices, since they were conducting official board business using these devices instead of district-provided ones.
DCSD, through its newly hired counsel Joey Gilbert, produced some responsive documents after the second request in July 2023 request, but denied the existence of additional records.
Unconvinced, petitioners ultimately chose to sue.
For over a year, Gilbert, trustees and the district continued to deny the existence of any additional public records pertaining to these requests, according to the ruling. Trustees signed affidavits and swore under oath that they had personally searched their devices and found nothing.
However, during the course of the lawsuit, they admitted they hadn’t actually read the affidavit Gilbert asked them to sign, and that Gilbert’s law firm was meant to conduct the searches. A former employee of the firm confirmed to the court she’d searched the devices based on a list of terms Gilbert provided.
After finally agreeing to conduct another search using DCSD IT Director Michael Roth, who in turn is now also suing the district, the searches proved petitioners’ were correct in their suspicions all documents hadn’t been produced.
Records recovered after year of denials
In fact, the court said “reams” of records were discovered of records, including 500 pages on DCSD’s servers, as well as 6,136 pages on trustee devices.
These records were produced in July 2024, a full year after the lawsuit began.
Prior to finally producing the records, trustees had recently learned they could be held personally liable for court fees, and quickly proposed a settlement — which would have been paid for by the district.
The terms of the proposed settlement merely required DCSD and Trustees to do that which the law requires; conduct adequate searches, produce responsive records, and pay Petitioners’ then-accrued attorney’s fees of $70,000, the ruling stated.
Since the proposal would need DCSD funds to settle the case, a vote was required to approve it. During a March 2024 school board meeting, the settlement was brought forward, but the named trustees had to abstain from voting due to their conflicts. The remaining three trustees voted it down stating they did not believe the district should be held financially liable for the conduct of the named trustees.
Four months later, the district finally produced the records.
Douglas County District Judge Thomas Gregory said:
To be clear, [Trustees and DCSD] do not need a court order or a settlement agreement to search servers and cell phones in response to public records requests, and nothing that this Court or Petitioners have done during the scope of this litigation has prevented Respondents from previously conducting the very search that they now desire to perform.
In the recent ruling, he said blame for the “unacceptable and unreasonable delay” to produce the documents falls solely and equally on both DCSD and the named trustees.
Despite a multitude of claims against the request for attorney’s fees and costs, the petitioners were found to be entitled to recover fees and costs by the court.
After the failed settlement, DCSD returned to court with a new attorney representing them in the case. Similarly, trustees also retained outside counsel separate from Gilbert who represented them together.
Trustees, district fight proposed costs
According to the ruling, both DCSD and trustees, through their new attorneys, cited multiple grounds for reducing or rejecting the requested fees and costs.
- Trustees and DCSD alleged that the way petitioners’ counsel was billing could not accurately show the work they had performed.
However, the court ruled that a blocked billing method does not present a roadblock in apportioning liability amongst the respondents, and the court did not find it difficult to assess the “character of the work or the work actually performed” by counsel.
- They claimed issue with billing time prior to the second amended petition and the joinder of trustees.
The court found that at anytime prior to the filing of any portion of the lawsuit, “DCSD and Trustees could have simply produced the requested records. They did not.” The ruling continued that whether or not petitioners made procedural mistakes or “suffered adverse rulings in righteous pursuit of legal recourse” is not a reason to reduce attorney’s fees, and “the Court takes note of the efforts Petitioners were forced to employ just to get Trustees served.”
- Trustees and DCSD claimed they should not be held liable for fees accrued after the failed settlement in March 2024.
On this, the court agreed to some extent. DCSD and Trustees argued that producing the records in July 2024 put a “hard stop” on their liability for attorneys fees. On this, the court disagreed since the lawsuit continued after the production of the documents, which the district and trustees swore for over a year did not exist.
“Against this backdrop, Petitioners are not faulted for failing to accept Respondents’ representation to the effect of, “No other responsive documents exist, we really mean it this time, believe us,” the ruling states. “Particularly [because] DCSD and Trustees did not comply with this Court’s order requiring detailed affidavits/declarations of compliance in reference to the searches.”
However, the court did find a distinction between the district and trustee’s liabilities in responsibility for fees following the failed settlement.
DCSD and its counsel [Gilbert] initially took on and defended Trustees, proclaiming a unified defense decrying the existence of additional responsive documents on DCSD’s servers and Trustees’ personal devices. DCSD and Trustees held a united front with joint representation through the attempted settlement agreement.
However, because DCSD’s board — acting on behalf of the district — rejected the settlement, the court determined that their rejection of the settlement caused petitioners to continue to accrue legal fees.
Given this, DCSD was found to be accountable for any post-settlement attorneys fees and costs, whereas the trustees were not.
4. DCSD and Trustees ask court to reject fees associated with non-board majority retained counsel.
As the lawsuit stretched on between the board majority and petitioners, the board minority members also engaged their own counsel for legal advice on the proposed settlement, ultimately leading to their rejection of the proposal. Petitioners then made efforts to salvage the settlement, according to the ruling, which included correspondence with this additional attorney. Regardless if the attorney was hired on behalf of DCSD or not, “time spent by petitioners counsel corresponding with [this attorney] was work towards resolution” of the lawsuit, and is allowable to request compensation for.
Additional claims:
Five additional claims were lobbied, including:
- questioning work performed by counsel related to board meetings and agenda items;
- an objection to trustees being held responsible for attorney’s fees accrued for discussions between DCSD counsel and Petitioners’ counsel, which was the same counsel (Gilbert) until the settlement failed;
- a claim that because the court ruled against one of the petitioners’ motions, the work spent on it should not be billable; and,
- a claim that costs incurred by petitioners were not reasonably incurred.
The court ruled against each of them.
Final costs
Given these rulings, the court found that attorney’s fees of $162,290.00 and costs of $3,791.16 incurred by petitioners must be paid by DCSD and the trustees.
DCSD was found liable for the full combined amount of $166,081.16, while the trustees, jointly and severally, were found liable for $70,000 (the pre-settlement costs).
While this might seem a bit confusing, the ruling essentially means that together, the district and each individual trustee is held liable for certain portions of the full award.
Petitioners must be paid the full amount of $166,081.16. However, if $70,000 of that amount is paid by a trustee or a combination of trustees and the district fails to pay its portion of $166,081.16, the petitioners cannot come after trustees for the remainder of the award.
However, by comparison, if the district pays its portion of the cost and the trustees fail to pay their portion, the district is still required to pay the full amount of the award.
You can view the full ruling below:
