Dispute with school will head to court

Thu, 05/30/2019 - 7:30pm

A 2-0 vote by the New Shoreham School Committee will apparently end Marsha Gutierrez’s career at the Block Island School without health benefits in her retirement package, and, according to her attorney, Gutierrez is expected to file suit against the town of New Shoreham in R.I. Superior Court.

On Tuesday, May 28, the School Committee passed a motion recommended by Supt. Michael Convery to resolve the dispute on the employment contract between the school and Gutierrez. At the meeting, Convery recommended a motion declaring that Gutierrez’s contract had expired on June 30, 2018, indicating she does not currently have a contract and is therefore effectively without health benefits moving forward in her retirement. Committee Chair Bill Padien put the motion on the table.

The vote was two in favor — Padien and member Annie Hall — none opposed, and two abstentions — Kara Stinnett and Persephone Brown. Brown and Stinnett are the newest members of the School Committee, first elected in 2018.

With a quorum present, the motion passed. Member Jessica Willi would have been the fifth vote, but she was not present. (Padien said Willi was at the State House on Tourism Council business. Willi is the Tourism Council director.)

There was little audience reaction when Convery read the proposed motion on the contract termination date, but some gasped when the vote was taken.

During the meeting at which her contract was being discussed, Gutierrez remained as the School Committee clerk and recorded the minutes of the meeting.

Convery was also authorized by the School Committee to advertise for an Administrative Assistant who would begin on July 1, 2019. Gutierrez’s employment will cease on June 30, 2019. 

Another matter was Gutierrez’s retirement letter, which was not acted on. Her May 21 letter to the Superintendent began, “Pursuant to Section 9 of my employment contract, I am officially giving you notice of my intention to retire.” Convery said: “I’m in possession of a letter of resignation from Marsha; however, I’m advised by counsel not to accept the letter as it’s written, as it contains language of a contract which we believe has expired.” There was no formal action. “Okay,” said Padien, “so we’ll take it under advisement, and duly noted, and we’ll take it from there.” However, as noted earlier, the School Committee approved the posting of an advertisement for the two positions Gutierrez has held: the School Committee Clerk and the Administrative Assistant to the Superintendent, both to start on July 1, 2019.

Those in attendance at the school library were quiet as the items concerning Gutierrez were considered. At least two dozen teachers and other residents wore name tags: “Hello, my name is Marsha.” Or, “I’m with Marsha,” or “I’m with her.”

The Committee went into executive session after disposing of two routine agenda items. The agenda cited the Open Meetings Act provisions allowing private discussion of “Collective Bargaining, Personnel, and Litigation.” Gutierrez remained in the meeting as clerk while the audience of about 35 left the room.

Few left the building after the open session discussion ended. Attendees waited (loudly) in the hallway outside the library, expecting or hoping, as one attendee said, that the Committee would announce a decision on Gutierrez’s contract after the closed session, perhaps at her insistence.

Instead, when the executive session ended and the audience returned to the library, Padien said only that no motions were made and no actions taken in the closed part of the meeting. The minutes of the executive session were sealed, as is customary under the Open Meetings Act.

Contract not acted on

Gutierrez and her attorney, Mary Ann Carroll, had argued at the May 16 School Committee meeting that the three-year contract, originally set to end on June 30, 2017, was extended for one year and then “rolled over” on the same terms to end on June 30, 2019. The rollover took effect, they say, because the Committee did not properly notify Gutierrez of its intention to renew her contract or not by a specified date. The Committee and its attorney, Denise Lombardo Myers, contend that the contract expired on June 30, 2018 – the end of the last school year – with no rollover year. Neither Carroll nor Myers were present on May 28.

On the agenda item “Non-renewal of Contract” between the School Committee and Gutierrez, Superintendent Michael Convery read from a prepared text:

“I have a statement I’d like to make to the School Committee on the advice of counsel,” Convery began. “This is a non-renewal of contract. The School Committee learned from the prior superintendent” — Judith Lundsten, who retired last year — “that the Administrative Assistant contract expired on June 30, 2018. The contract was for three years and in 2017 it was extended for one year. I’m recommending a motion that the contract expired without any rollover on June 30, 2018; and if any other court were to determine that it expired on any other date, it is hereby not renewed as of today.”

“So moved,” said Padien. Member Annie Hall seconded the proposed motion. There was minimal discussion.

Three votes were needed for approval. Padien and Hall voted in favor.

“I abstain,” said member Persephone Brown.

“Yeah, well...” said member Kara Stinnett. There was an uncomfortable silence as she considered her vote. She decided to abstain.

“OK, so two abstained, so it’s not a quorum. Is that correct?” Padien asked Convery.

“That is correct,” Convery replied.

On Thursday, however, Padien clarified the result for The Times. “An abstention is a non-vote according to Robert’s Rules of Order,” he said. Since four of the five members were present, there was a quorum, and with two not voting, two yea votes were enough for the motion to pass.

Nothing happened”

Reached for comment by The Block Island Times Wednesday morning, Gutierrez said only, “I’m disappointed that they don’t agree that my contract is still in force.”

Mary Ann Carroll, Gutierrez’s attorney, told The Times Wednesday that after talking to her client “It appears to me that nothing happened last night. Quite frankly, my opinion is that they did absolutely nothing.”

Carroll said she had wanted the Committee to have a discussion about the contract and come to a decision.

“Marsha and I will have to get together now and determine how fast we’re going to file legal action,” Carroll continued. She said she sent a letter to First Warden Ken Lacoste on May 21, formally notifying the town (as required by Rhode Island law) of her intention to file a lawsuit on Gutierrez’s case.

“I just can’t believe they did nothing,” said Carroll.

(As of press time, Carrol had not responded to The Times on Padien’s re-characterization of the vote.)