By Richard Emmons
“You were fired but not for misconduct with work.” Thus read the Oct. 28, 2021, legal conclusion of the Oregon Employment Department in its ruling for Katie Medart’s unemployment claim against the Grants Pass School District 7.
Rachel Damiano’s unemployment claim against District 7 was denied on Aug. 9, 2021. However, on Oct. 8, that denial was overturned by the Administrative Law Judge, who concluded that “the claimant was discharged, but not for misconduct.”
This article addresses the allegations of misconduct by educators Damiano and Medart related to activities in March and April this year involving their “I Resolve Movement,” an effort to advocate for anatomy-based restroom policies in public schools. District 7 paid for an investigative report by former Grants Pass police chief Bill Landis. These allegations resulted in the terminations of the two educators by Superintendent Kirk Kolb. Following an appeal to the school board, Damiano and Medart were reinstated as employees of District 7.
The Eagle received the Landis Investigative Reports Part I (Medart) and Part II (Damiano), Medart’s and Damiano’s written appeals to the District 7 board and unemployment documents from their attorney, Ray Hacke, of Pacific Justice Institute.
Pre-Termination Hearings
The District 7 School Board held back-to-back pre-termination hearings on July 15 in the Grants Pass High School library. The room was packed, and the sound system emitted a strong echo making understanding the proceedings very difficult.
Damiano’s hearing began with the school district attorney Nancy Hungerford explaining the basis of the allegations, which were supported by the Landis report.
Next, Rachel delivered her response to the allegations. It was very eloquent and well thought out. She went through the allegations point-by-point. We heard how the Oregon Revised Statutes define political activity and how the “I Resolve” website and video did not constitute political activity as defined by state law.
She contended that a “Heckler’s Veto” should not inhibit her freedom of expression. The First Amendment Center explains: “A heckler’s veto occurs when the government accepts restrictions on speech because of the anticipated or actual reactions of opponents of the speech.”
In both hearings, the board voted 4-3 to support the superintendent’s recommendation for termination.
School board members Scott Nelson, Debbie Brownell, Brian DeLaGrange and Cliff Kuhlman voted in favor of terminating the women’s employment, while board members Gary Richardson, Cassie Wilkins and Todd Neville voted against termination.
When the first roll call vote was called, board member Kuhlman held up a document he wanted to discuss. Nelson pointed out to him that it was time to vote.
It appeared that Kuhlman was having trouble following the hearing. Could he hear what was going on? It didn’t appear so.
The district’s counsel, Bill Ransom, spoke to Kuhlman briefly away from the group. When he came back, Kuhlman cast the deciding “yes” vote.
Rachel Damiano had been officially fired.
For a full report on these hearings read the Eagle’s story here: https://myeagle.us/eagle-101
During Ms. Damiano’s hearing, board member Richardson pointed out errors in the private investigator’s report and concluded no violations of school policy occurred. Board member Brian DeLaGrange said, “It’s hard for me to see how allowing this administrator to stay will not make some group of our students feel less safe in our schools, whether that’s real or their feeling. Our top priority is to make sure all students are as safe as possible, so that’s why I am accepting the superintendent’s recommendation.” Board member Todd Neville noted, “I don’t feel that due process was handled on the lowest level before it came to this, where it is now.”
Following a 20-minute break, Ms. Medart’s hearing began. During the board’s deliberation, school board member Richardson read a prepared statement into the record. Richardson stated that any violations of school policy were too minor to warrant termination.
Board member Debbie Brownell stated, “I believe the investigator. He has at least five different reasons for termination, and any one of them would be adequate for termination in my view.”
Richardson then addressed Brownell: “Debbie, I find it disconcerting that essentially your position is that any information from the investigator is correct and true even though clearly some of those items are point blank just false.” Brownell responded, “I don’t think this should be a debate, so I will not respond to what I feel [are] misconceptions from your department.”
Richardson then reviewed district bathroom and locker room policies from 2008 through 2019. He concluded by saying, “What their speech was advocating for represents our policy back in 2008.” The district policy segregating bathrooms “by gender” or “male and female” changed in 2019 in accordance with state guidance changes.
Unemployment Claims Upheld
On Oct. 28, the Oregon Employment Department granted Ms. Medart’s unemployment claim. The OED found, “You were employed by Grants Pass School District #7 until July 15, 2021 when you were fired for allegedly violating board policies. This was not a willful or wantonly negligent violation of the standards of behavior an employer has the right to expect because the policy violations are alleged.”
The ruling defines “wantonly negligent” as “indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have known that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.”
Because Rachel Damiano’s unemployment claim was denied, her appeal offered the opportunity to support her claims in an administrative court hearing. District 7 carried the burden of proof for its allegations of misconduct. Administrative Law Judge Charles Smith ruled against District 7 and in favor of Damiano.
In his opinion, he states, “The record did not include persuasive evidence that claimant used the employer’s network for transmission of materials and information regarding a campaign under the employer’s policies. The employer also failed to establish that claimant used paid district time to engage in efforts to promote … a political campaign. … The evidence in the record indicates no claim or statement made by the claimant to indicate that she did or meant to imply that any statement that she made was representative of the district as a whole.”
In his opinion, Judge Smith states the following:
Based upon the evidence adduced at hearing, I was not persuaded that the employer established that more likely than not claimant engaged in the misconduct that it alleged. Claimant’s credible testimony refuted the employer’s second hand testimony and the inferences that the employer made with regard to the use of the employer’s facilities, equipment, and supplies. The record did not include persuasive evidence that claimant used the employer’s network for transmission of materials and information regarding a campaign effort under the employer’s policies. The employer also failed to establish that claimant in fact used paid district time to engage in efforts to promote what it regarded to be a political campaign. While there was evidence that claimant was contacted using her work email by a third-party interested in some sort of activity that could be considered of a political nature, and that she responded once, she then transferred further communications to her personal email and equipment. I am not persuaded that that behavior constituted more than an incidental use, which the employer’s policies allowed for. In any event, I am persuaded the action that claimant took in responding to the email would have been excusable as either an isolated incident of poor judgment or a good faith error given that the employer’s policies regarding what it considered to be political activity did not necessarily cover the issue that the video concerned itself with.
With respect to the allegation that claimant failed to identify in the video that her political viewpoints were hers personally and not representative of the district, the evidence in the record indicates no claim or statement made by the claimant to indicate that she did or meant to imply that any statement that she made was representative of the district as a whole. Finally, with respect to the allegation that claimant’s personal use of social media created a substantial disruption to the school environment, I am not persuaded that given the nature of the laws that were being considered and the substantial changes in society in terms of its acceptance/tolerance and its willingness to make changes to in of support marginalized communities including transgendered persons, that claimant’s action, in and of itself, was likely to create a substantial disruption to the school environment.
District 7 lost its final appeal to this ruling on Nov. 16, 2021.
These unemployment insurance claims allowed Medart and Damiano to collect unemployment benefits. The decisions also supported their claim they had been fired for reasons other than misconduct.
Landis Investigative Reports
Former Grants Pass police chief and now private investigator Bill Landis prepared a series of four reports for District 7. The reports were the basis of the termination recommendation by Superintendent Kirk Kolb. They were cited as the basis for termination votes by certain school board members.
Each of the allegations in the Landis reports will be listed and analyzed here. Allegation 1 had six allegations, which were the same for Damiano and Medart. The Landis report for Medart had two additional allegations, which will be looked at after Allegation 1.
Allegation 1A. Used District facilities, equipment or supplies in connection with the political campaign.
This allegation was sustained in the Landis’ report. However, Landis bases his conclusion on violations of the district policy “Staff Participation in Political Activities,” which goes beyond Oregon ORS 260.432, a statute that prohibits “campaigning” but allows “lobbying” by state employees, in section 2.
During the July 15 termination hearings, school board member Gary Richardson pointed out that “of 11 emails in question, five were inbound emails.”
However, Landis sustained this allegation on the basis that the educators violated the district policy “Staff Participation in Political Activities,” which states that “No employee will use district facilities, equipment or supplies in connection with political campaigning, nor will any employee use any time during the working day for campaign purposes.” Grants Pass School District 7 policy IIBGA-AR “Electronic Communications System Acceptable Use Regulation” (Exhibit 7E) states that “Attempts to use the District network for Transmission of any materials regarding political campaigns is strictly prohibited.”
The report pointed to the “I Resolve” video in which viewers were encouraged to contact their Oregon state senators to oppose Senate Bill 52 then under discussion in the state legislature as well as other legislation at the federal, state and local levels.
The Landis’ report confuses political “lobbying” with political “campaigning.”
The stated purpose of the “I Resolve” campaign was to address gender identity policies as was stated in their video and message. The “I Resolve” campaign stated in the video that it was specifically targeting the Equality Act, Oregon Senate Bill 52, and other legislation that was in the process of being voted on, developed, or proposed in legislative bodies at the Federal, State, and local levels as the “I Resolve” video explains. In the video, Ms. Damiano and Ms. Medart ask that viewers reach out to contact Senators where the next vote is scheduled and attend an ODE meeting that was scheduled for April 15th, 2021 in order to have their voices heard lobbying for support of the “I Resolve” resolutions that would modify or change the pending legislation as it had been written. [Landis’ report]
Under state law, campaigning is prohibited, while political lobbying by state employees is not. ORS 260.432 section 2 states, “However, this section does not restrict the right of a public employee to express personal political views.”
In the “I Resolve” video, Damiano and Medart encouraged viewers to sign a resolution and send in comments to the Oregon Department of Education and state senators. This constitutes lobbying, which is allowed under Oregon law.
Regarding the use of district email. Damiano’s Unemployment Appeal Final Order states, “Claimant was contacted by an outside organization who used her employer-provided school email address in order to reach claimant. Claimant did respond to the email from the outside organization but from that point forward continued contact using her personal email.”
Landis’ report on Medart included 12 email complaints in opposition to “I Resolve.” Her appeal to the school board states, “Timestamps shows email complaints came in AFTER Superintendent Kolb emailed all D7 staff and Community deeming I Resolve Movement in direct conflict with district values and soliciting concerns to be reported to himself and Human Resource Director Danny-Huber Kantola.”
The UI Final Order states, “The employer’ s policies with regard to personal use of its network and equipment did allow for incidental personal use of its network and equipment.”
Allegation 1A Conclusion: Although “sustained” in the Landis report, the activities in question were characterized by the unemployment appeals board as “incidental.”
Allegation 1B. Used time during her working day for political campaign purposes.
This allegation was sustained in the Landis’ report. However, the activities Landis lists to support this allegation do not fall under “political activities” as defined by Oregon law ORS 260.432.
The “I Resolve” website and video did not promote an initiative, referendum, recall petition, measure or candidate. Therefore, the alleged activities were not “political activities.” This was pointed out by Damiano at her pre-termination hearing and by Medart’s attorney at her pre-termination hearing.
District 7 Chief Financial and Operations Officer Sherry Ely testified under oath at Damiano’s unemployment hearing that what she did does not meet the legal definition of political activities.
Despite the District 7 policy prohibiting “political activities” by district employees during working hours, this policy may not be consistently enforced. State Rep. Duane Stark told the Eagle, “I receive hundreds of emails from teachers telling me to support or oppose bills under discussion in Salem. Nearly all use their school district email addresses and usually during working hours.”
Allegation 1B Conclusion: Although “sustained” in the Landis report, the activities in question were not “political activities” as defined in Oregon law.
Allegation 1C. Failed to designate that the viewpoints she represented on the issues involved in the political campaign, were her personal viewpoints and not that of District 7.
This allegation was sustained in the Landis report. However, school board member Richardson pointed out at the July 15 pre-termination hearing that:
- “Ms. Medart [and Damiano] was clearly not wearing any District insignia, clothing, or other identifying symbols from the District.”
- “No comment was made by Ms. Medart [or Ms. Damiano] verified the fact that she was a District employee.”
- “Only by using information outside the video and website is it possible to make the linkage between [Ms. Damiano or] Ms. Medart and District 7.”
Damiano’s UI Appeal Final Order states, “Claimant [Rachel Damiano] disclosed the content of video to the employer, specifically its superintendent, before it was posted online and did not initially receive any indication that the employer considered her actions to be in violation of its policies.”
Upon request by District 7, a disclosure was added that this video represented their private opinions.
Allegation 1C Conclusion: Although “sustained” in the Landis report, the educators did not identify themselves as district employees, and did inform the superintendent of the video, as affirmed by the administrative law judge.
Allegation 1D. Used social media and public websites in such a manner that it disrupted the school environment.
This allegation was sustained in the Landis report.
Allegation 1D Conclusion: Although “sustained” in the Landis report, the “I Resolve” website and video did not substantially disrupt the school environment until after information was emailed to district staff and community by Superintendent Kolb.
Allegation 1E. Posted confidential information about a student on social media and a public website.
This allegation was “not sustained” in the Landis report.
Allegation 1F. Created a “bias incident” where her actions as a District employee with regards to the political campaign/movement involved behavior or language which was derogatory and directed at those persons and or students’ “sexual orientation.”
This allegation was “not sustained” in the Landis report.
There are two additional allegations against Ms. Medart in Landis’ Instigative Report Part I.
Allegation No. 2: Between October 2020 and March 2021, Katie Medart discriminated against SPED Teaching Assistant Lysander Selvig who is transgender.
This allegation was “Not Sustained” in the Landis’ report.
Allegation No. 33: On or about March 2021, Ms. Medart created a hostile work environment for North Middle School Librarian Tanika Cooks.
This allegation was deemed “Unfounded” in the Landis report. In the report “Unfounded” is defined as “no evidence existed to support the claim.”
Educators’ Appeal to District 7 Board
On Sept. 28, the District 7 School Board voted to allow written appeals by the educators. The board also sent questions to be answered in writing.
Ms. Medart submitted her appeal Oct. 20, and Ms. Damiano submitted her appeal Oct. 21.
Ms. Damiano’s appeal states she met with “Kirk Kolb, Danny Huber-Kantola, and Tommy Blanchard” prior to launching the “I Resolve” website and prior to posting the “I Resolve” video. She did this as a private citizen and as a professional courtesy. None indicated to her that launching “I Resolve” would violate any district policies.
Further, her appeal points to the issue of freedom of expression by district employees:
“[S]ince the Board’s July 15 decision to support Superintendent Kolb’s recommendation that he terminate my employment with the district was not based on the facts in record, nor was it based on a substandard performance review, it leaves me wondering what the grounds for my termination were based upon. It would appear that the decision was based on the content of our speech, not on any perceived, albeit unsubstantiated, violations of policies.”
Board Reverses Previous Termination
The appeal hearing was held in executive session on Nov. 9. The board members reviewed the allegations against the two educators, considered the written appeals and other on the record evidence, heard district legal opinions and deliberated on whether or not termination was warranted in these situations.
Following the executive session, member Cliff Kuhlman joined board members Gary Richardson, Cassie Wilkins and Todd Neville in approving the reinstatement of the previously terminated employees. School board members Scott Nelson, Debbie Brownell and Brian DeLaGrange voted against reinstating Damiano and Medart.
Damiano and edart issued a statement following their reinstatement:
It has been a very difficult seven months. We are grateful for the courage of the majority of board members that chose to reinstate us. Grants Pass School District needs to be a place where students, staff, parents and community members are safe to express themselves without fear of retaliation or cancellation.
We look forward to partnering with the District as we are reestablished in our positions. We believe we not only bring value to the District, but also bring back with us beneficial insights shared with us by our community throughout this ordeal.
Thank you to our community: parents, students, staff, grandparents, etc. for all the support and showing we are stronger when we stand together.
District 7 also issued a statement following the vote:
In a 4-3 vote, the Grants Pass School Board has reversed its decision to terminate two Grants Pass School District 7 employees for violating district policies. The board had previously voted 4-3 in support of the Superintendent’s recommendation to terminate, following an independent third-party investigation.
Personnel matters are confidential, and therefore, the details of reinstatement cannot be disclosed.
Grants Pass School District 7 will continue to follow all state and federal laws. We have school board policies in place to support safe environments for students and staff, and we will continue protecting the well-being of everyone in our schools.
Regardless of race, religion, gender, sex, sexual orientation, or ability, we all belong in Grants Pass School District 7.
Due to ongoing, pending litigation, we cannot comment on this matter further.
Attorney Ray Hacke told the Eagle following the board’s reversal, “The Grants Pass School District did the right thing by reversing its very unwise decision to fire Ms. Damiano and Ms. Medart. However, the two of them never should have been taken out of their school in the first place. First Amendment jurisprudence makes abundantly clear that teachers have the same right as any other private citizen to speak on matters of public concern. By placing them on leave and then firing them, the district sent a chilling message – basically, that any employee who dares anger the woke mob will be sacrificed on the altar of political correctness.”
Teacher Seeks Reconciliation
Damiano and Medart have made efforts to reconcile with district employees. The Eagle obtained the following email sent Nov. 12 by Medart to a District 7 employee who was named in the Landis report:
Hi Rachelle,
I noticed you were at my appeal with some students. We didn’t speak directly, but observing body language it appeared you and some students were upset with the decision to reinstate me.
Once I learned of the complaint you filed, I asked to speak with you. However, the district’s response was a directive that I could not speak to you.
Now that I can and with my reinstatement, I would like you to know that I care to understand your perspective and would like to meet and have a discussion with you. I would like to reconcile and move forward together serving the families of our community.
I believe you are also one of the club advisors at the high school for students in the LGBQT community. If so, I would also like to ask you to consider being an avenue for me to come and speak with any students interested in having dialogue. I want them to know I care about them and hopefully address concerns.
Please let me know if you would like to arrange a meeting.
Sincerely,
Katie Medart
Ms. Medart did not receive a response to her email.
District 7 Students Demonstrate at High School and Middle Schools
Some Grants Pass High School students planned a protest for the day after the school board voted to reinstate Damiano and Medart. This spontaneous demonstration by some students was canceled.
Instead, a student walkout was scheduled a week later during 5th period (1:45 to 2:12 p.m.) on Nov. 16. This delay allowed the student protest to morph into an adult protest at which one Medford adult was arrested along with two GPHS students.
Ironically, District 7 students used their freedom of expression to protest the freedom of expression of two District 7 educators.
Although not an official GPHS event, flyers promoting the event were distributed on campus, and school officials made no effort to prevent the student walkout. Discussions continue within District 7 on whether students walking out of class were tardy or whether the district would be liable for any physical harm done to students while attending any similar protests in the future.
Local Democrats promoted the “student walkout” on their website. “Join students at North Middle School and Grants Pass High School who are walking out on Tuesday, November 16 in protest of the District 7 School Board’s decision to reinstate transphobic educators whose I Resolve “movement” targeted and stigmatized transgender and nonbinary students. Community members – join us to show your support! Please gather on the sidewalk, be respectful, wear a mask, and socially distance.”
A video of the student walkout was posted on the Medford Mail-Tribune website. Grants Pass High School students can be seen pushing back on Grants Pass Police officers. Someone can be heard calling them “F***in fascist pigs.”
Back to School
Ms. Damiano now serves as the GPFLEX assistant principal and secondary attendance coordinator. About being back in school, she told the Eagle: “It has been a joy being back working with students and families and breaking down barriers for student success. But because the District still has revised policy [restricting ‘political activities’] in place, the reason for our lawsuit, my speech is restricted while on and off campus. Therefore, I am unable to comment further until the courts make a ruling on the constitutionality of the policy.”
Ms. Medart now serves as Edgenuity advisor/science teacher grades 6-12 for GPFLEX. Medart commented on her new position, “I am thankful to have another opportunity to continue encouraging students and help them develop tools for success.”
Looking Ahead to 2022
Let’s hope 2022 will give back these and other District 7 employees their freedom of expression. Educators are in the best position to know what’s happening in the classrooms and how students are impacted by wise and unwise school policies dictated by Salem.
The District 7 School Board will select a new superintendent in 2022 following Kolb’s resignation effective Jun. 30, 2022.
Richard Emmons is the publisher and editor of the Josephine County Eagle.
“For there is nothing hidden that will not be disclosed, and nothing concealed that will not be known or brought out into the open.” – Luke 8:17