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| Board votes 4-0 to uphold removal of Powell |
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7/31/2015
By Brad Laux
Advocate contributing writer
After months of wrangling, in the end there was no change to the status of former Montgomery County Superintendent of Schools Josh Powell.
At the conclusion of last Thursday’s fourth and final day of testimony in the case of Joshua Powell vs. the Montgomery County Board of Education, the school board deliberated for 30 minutes in closed session in the circuit courtroom of the Montgomery County Courthouse and returned with a 4-0 verdict to uphold Powell’s termination.
Powell was suspended as superintendent in early January. The board of education previously voted in April to proceed with removing him as superintendent.
The board later received the green light from Terry Holliday, state commissioner of education, to proceed with the removal process. While Powell’s contract already expired and a new superintendent is in place, Powell was entitled to the due process hearing, which he requested.
Prior to the start of last week’s due process hearing, Powell parted ways with attorney C. Ed Massey, stating it wasn’t cost-efficient to keep him on retainer. For the first three days, Richard Hughes served as Powell’s adviser. Yet on Thursday, Powell apologized for Hughes’ absence stating he was unable to attend because he had to take his wife to a “medical appointment.”
Thursday’s proceedings began with Powell voicing that his testimony suffered a substantial disadvantage because he was prevented from bringing board members to the witness stand. Similarly, he was displeased that he was unable to call more than two witnesses due to their “fear of retribution.” He also stated that he preferred the hearing had been closed to the public and protested the inclusion into evidence documents he deemed as unverifiable.
Then without presenting any witnesses or testifying on his behalf, Powell rested his case just minutes after the beginning of Thursday’s proceedings.
The board of education’s attorneys, Ira Kilburn, Michelle “Shelly” Williams and Tim Crawford, followed by presenting evidence that included a redacted citation of Powell’s reported misdemeanor from the Chillicothe, Ohio, police department; minutes from the board’s October, November and December 2014 meetings; a letter from Kentucky Dept. of Education Commissioner Terry Holliday; and a redacted letter of Powell’s job performance from May 11, 2015, listing five reasons the board stated as its rationale for proceeding with Powell’s termination.
Hearing Judge Stuart Cobb did not admit the latter two documents into evidence and ordered the letter from Holliday be sealed. Cobb did accept a redacted email Hughes provided stating the individual who allegedly certified the misdemeanor for the EPSB (Educational Professional Standards Board) claimed she was unaware of that record and had never heard of the EPSB.
Josh Salsburey of the Lexington law firm Sturgill, Turner, Barker and Moloney, which handled the investigation and subsequent report that led to Powell’s removal, was the lone individual called to the stand on Wednesday. Powell grilled Salsburey in two segments totaling nearly two hours, primarily questioning the thoroughness of Salsburey’s efforts in compiling the report.
After an hour and 25 minutes of Powell’s initial interrogation, Kilburn asked Salsburey a pair of questions in his redirect, before Powell resumed his queries for approximately another 35 minutes.
After parties from both sides left the courtroom for 15 minutes to privately discuss issues related to the case, the four members of the school board who were present and their legal representatives broke into closed session and met for approximately 15 minutes.
Powell then asked Cobb for a four-hour hiatus to gather the “four or five” witnesses Powell intended to question by a conference call. After objections from the school board’s attorneys, Cobb granted the break on the condition that Powell would have from 3-7 p.m. to conclude his testimony for the day.
Upon reconvening at 3 p.m., Powell stated his witnesses were unavailable to testify that afternoon. Cobb then closed the session and established a timeline for Thursday’s proceedings outlining a conclusion to the hearings, which would allow for a verdict to be rendered by 6 p.m.
That timetable became moot at approximately 11:10 a.m. Thursday, after both sides presented their closing arguments and Cobb instructed the members of the school board come to a yes or no conclusion on nine factual findings.
If the board answered no to any of the statements, Powell would be reinstated. If it responded yes to all nine, a 10th question asked the board to determine whether or not there was cause to remove Powell from his position. If it answered yes, an 11th question asked whether or not the board should remove Powell ”for good cause.”
Cobb sat with the board to observe its discussions and certify the decision was based solely upon the testimony presented by both sides, and that the board operated under the criteria he put forth and the board’s decision was valid.
Board chair Alice Anderson read the results of the deliberations. Sharon Smith-Breiner made the motion to remove Powell, which was seconded by Bill Morgan. Donna Wilson also voted in favor of removal. Board member Dr. Kelly Johnson was not present for the hearings.
After the decision was read, Powell stated that he would pursue an appeal.
Kentucky Revised Statute 13B .140(1) provides that final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petitioner in the circuit court of venue, as provided in the agency’s enabling statutes, within 30 days after the final order of the agency is mailed or delivered by personal services If venue for appeal is not stated in the enabling statutes, a party may appeal to Franklin Circuit Court or the circuit court of the county in which the appealing p
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