Johnston's lawsuit against Duluth school district still pending

The federal lawsuit that Duluth School Board member Art Johnston filed in March against other members and the Duluth school district is still pending.

Art Johnston

The federal lawsuit that Duluth School Board member Art Johnston filed in March against other members and the Duluth school district is still pending.

Prior to the May 19 meeting held by the board to reverse a decision to remove Johnston, he had said the lawsuit would be "moot" if he wasn't removed. But other board members' alternative course of action - to censure Johnston - left him rethinking his position, he said following that meeting. The lawsuit sought to stop a legal hearing required for his removal, to declare a board code of ethics unconstitutional and to award him damages.

Last week Johnston wouldn't comment on the matter, and his Minneapolis attorney, Steven Aggergaard, would only confirm the lawsuit hadn't been dropped. Aggergaard said he did not want to comment further with the board set to vote next month on changes to its code of ethics. That code of ethics played prominently in Johnston's lawsuit.

The code - which has been in use since 1970, with the latest revision in 2000 - was cited as the board sought to remove Johnston from office. It was alleged that his actions - such as Johnston's "disparaging" comments made publicly about district officials - violated parts of the code.

Johnston's lawsuit said the code was unconstitutional, and that his right to free speech had been "chilled."


U.S. District Court Judge Michael J. Davis noted at an early May hearing that resulted from the lawsuit his agreement that Johnston had a right to speak his mind, but he said other allegations involved in the vote to remove him were ethical violations. The judge didn't rule, referring the sides back to mediation.

The School Board based its decision to remove Johnston on the results of a monthslong independent investigation it approved in June 2014, meant to look into several allegations against him by three of its members. Those included abuse of authority, assault or other improper conduct, conflict of interest as related to a district employee and violation of the ethics code. A majority of allegations were found by the investigator to have merit. The board voted in December to oust Johnston, but the lawsuit and unsuccessful mediation resulted in the decision to censure him instead.

"From the school district's perspective, we believe the lawsuit is moot since Mr. Johnston was not removed from the School Board," said Margaret Skelton, an attorney with Ratwik, Roszak and Maloney in Minneapolis, who is representing the district and the five board members named in the lawsuit.

She's learned from Johnston's attorneys, she said, that the lawsuit hasn't been dismissed, but hasn't been told why. The lawsuit as filed, Skelton said, still is seeking monetary damages.

District insurance as it relates to school leaders and claims for damages offers coverage after meeting a $5,000 deductible, said Kerry Leider, property and risk manager for the district.

But such payouts affect premiums, he said, and the amount of litigation involved in the long-range facilities plan, for example, has affected the district.

Board chairwoman Judy Seliga-Punyko said Davis and Aggergaard in court indicated the code should be changed, which is why there is a new version up for vote. Board members have in general agreed to move toward adopting model policies from the Minnesota School Boards Association.

The idea, she said, is to more clearly outline expectations for conduct, not speech. The four-page model MSBA and Minnesota Association of School Administrators policy has a few revisions made by Skelton's firm, Skelton said.


A clause that says to "make no disparaging remarks, in or out of school board meetings, about other members of the school board or their opinions" has been struck in the model policy and changed to "model civility to students, employees, and all elements of the community by behaving in a respectful, professional manner towards other school board members and district employees."

One addition to the clause that discusses guarding information protected under law says that violation of the policy could lead to censure and removal.

Aggergaard had argued in court that the Duluth school board's current one-page policy made no mention of consequences for any policy violation.

Both Harry Welty and Johnston voted against a first reading of the proposed policy changes at a recent meeting. Johnston - in board meetings - had objections to some revised and original portions of the proposed ethics code, including the piece that outlines what behavior could result in censure or removal.

His lawsuit names the Duluth school district and board members Mike Miernicki, Annie Harala, Bill Westholm, Seliga-Punyko and Rosie Loeffler-Kemp. Welty, who has supported Johnston, was not named.

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