Motion claims Utica schools superintendent deleted key e-mails
Attorneys for a suspended Utica school administrator will be in court Wednesday seeking to find out whether Superintendent Marilyn Skermont might have deliberately deleted e-mails related to the administrator's performance.
In an interview Monday, Skermont denied this was the case.
"Nothing was altered and I have nothing to hide," Skermont said. "There's no credence to that document."
Suspended Superintendent of Buildings and Grounds Craig Fehlhaber is fighting to retain his job in an ongoing civil service hearing that's currently on hold because the hearing officer has been on vacation.
His attorneys have sought internal school records to make the case that the suspension was unwarranted.
Their review of Skermont's e-mail inbox during a critical time period raises questions about whether Skermont failed to retain key e-mails, according to a motion filed on
behalf of Fehlhaber.
Some of those e-mails had turned up in a search of other school officials' e-mail but not in Skermont's, according to state Supreme Court documents obtained Monday by the O-D.
"I was never given any reason to believe that massive gaps existing in Superintendent Skermont's inbox resulted from anything other than her deletion of those records," Steven Judge, one of Fehlhaber's attorneys, said in a court document.
The Fehlhaber motion says its purpose is to "document that the superintendent has deliberately deleted relevant and exculpatory e-0mail communications."
His attorneys are now calling for Skermont to turn over two years of e-mail records so that they can see if the lack of e-mails represents a pattern or an aberration.
They're also seeking e-mails from school board member D. Victor Pellegrino and a list of e-mail addresses, public or private, used by board members for public business.
In their response, the school district's attorneys accuse the district of going on a "fishing expedition," calling the request "harassing and libelous."
"We strongly oppose the motion they made," said Daniel Petrone, one of the district's attorneys. "We find the allegations that they have made toward Superintendent Skermont are without merit."
Attorneys will argue the motion Wednesday before state Supreme Court Justice Anthony F. Shaheen, documents state.
Other allegations contained in Fehlhaber's court filings include:
* Skermont tried to circumvent Open Meetings laws and communicated with the board members about Fehlhaber by e-mail.
* Skermont waited nearly two months after receiving an April 30 subpoena to tell staff to retain e-mails.
* The district could not provide any performance evaluations for Fehlhaber, since July 1, 2004.
For its part, the school district claims Fehlhaber's legal team is attempting to delay the disciplinary proceeding by continually requesting documents.
The district's attorneys state Skermont issued a verbal directive to staff members instructing them to retain e-mails, and issued written instructions to certain staff members at a later date, documents state.
Months-long process Fehlhaber has continued to collect his $76,859 yearly salary since being suspended in mid-April. The district has accused him of various acts of misconduct, including neglecting his duties.
Because he is a civil service employee, he is entitled to a disciplinary hearing after which an independent hearing officer will make a recommendation on his punishment, if any, to the school board.
Sessions of that hearing are scheduled into December, officials said. The proceeding was delayed in October because the hearing officer, Roger Kane, had a previously scheduled vacation to Myrtle Beach.
School officials have expressed frustration with the slow process.
"It's costing the taxpayers a fortune and I'd like to see this over in the fastest most judicious way possible," Pellegrino said.
Pellegrino would not comment on the allegations, citing the ongoing court battle.
Board President Barbara Klein also declined to comment on the allegations, but said she is willing to provide any e-mail correspondence to attorneys.
"They're welcome to it," she said.
Fehlhaber referred requests for comment to his attorneys, who did not wish to further comment on the motion.
Nearly empty inbox During an August search of some district e-mail accounts, Fehlhaber's attorneys state it became clear that Skermont frequently used email to communicate with staff and board members.
Yet, during a two- or three-month period, only a handful of e-mails could be found in Skermont's e-mail inbox, court papers state.
Meanwhile, Skermont's inbox contained many more e-mails during similar time periods before and after this those months, the Fehlhaber court filing states.
Those findings make "Superintendent Skermont's entire e-mail account for the period specified relevant," documents state.
During that search, attorneys also learned board members were using private e-mail accounts to communicate.
Skermont acknowledged she changed her e-mail retention procedures after receiving the subpoena, she states in a court document. Prior to that, she said, she printed out hard copies of e-mails and did not maintain all e-mails in electronic form.
"I am an infrequent user of the District email service," Skermont said in a court statement made last week. "Accordingly, my common practice is to have any emails which are sent or received printed by my administrative assistants so that I may review and work directly with the hard copies."