By Tom Marshall
Senior Advocate writer
A judge has dismissed a lawsuit filed by former Montgomery County Schools’ Superintendent Josh Powell against the local board of education.
Powell was fired by the board in 2015.
In an order filed in Montgomery County Circuit Court June 21, Special Judge Eddy Coleman of Pike County cited Powell’s repeated failure to comply with discovery as the reason for the dismissal.
Coleman wrote in the order that Powell had been given “multiple opportunities to comply with the court’s prior orders and specifically the court’s order that plaintiff produce any and all audio tapes, writings or recordings taken of the Montgomery County Board of Education members, employees of the board of education and the board of education’s counsel.”
Coleman ordered the items turned over, but found that Powell “made partial, but not substantial compliance, as ordered by the court.”
While Powell failed to turn over any recordings of meetings with board members and board employees, he did reportedly present the court with recordings from the Educational Professional Standards Board.
In a motion to dismiss Powell’s complaint, John McNeill, a Lexington attorney representing the board, noted that the court was already in possession of the tapes.
At a hearing April 26, 2016, Powell claimed that he had 50-60 JPEGS of records in his safe and eight to nine hours of recordings that were never produced.
McNeill claimed that “it is manifestly unfair to hold the Montgomery County Board of Education hostage to the whims of Powell and his flagrant disregard of the court’s rulings.
“Although the case law frowns upon dismissals in discovery actions, it is appropriate where the failure to comply with discovery constitutes bad faith or willfulness on the part of the disobedient party,” McNeill wrote. “Here, it is not a situation where counsel for the plaintiff is responsible for discovery abuses. Rather, in this case, Joshua Powell, himself is responsible for the discovery abuses and has perpetuated the discovery abuses himself and the court has given him multiple opportunities.
“This surely is such bad faith and willfulness given that the court placed Powell under oath and Powell misrepresented and was disingenuous with the trial court,” he claimed.
Coleman had requested the items because Powell had reportedly indicated under oath that he had additional audio information but “found that Powell has been disobedient with the court’s order despite multiple opportunities to comply and based on Powell’s own prior disingenuous statements under the oath the court hereby orders that the above-styled civil action be and hereby is dismissed with prejudice.”
By being dismissed with prejudice the case is essentially finished in Montgomery County Circuit Court.
Powell, however, has the right to appeal the dismissal within 30 days of its filing. To date, no such appeal has been filed.
Powell had previously been represented by two different attorneys, but they had withdrawn. Most recently he was representing himself.
A message left at the last known number for Powell in an attempt to reach him was not returned.
Court documents list two mailing addresses for Josh Powell—one on Howell Drennen Road in Montgomery County and another in Port Saint Lucie, Fla.
McNeill did not return a message seeking comment. Board attorney Shelly Williams said she cannot comment on the case.
The suit alleged breach of contract, violation of the Open Meetings law and claims of slander and defamation of Powell involving the board.
Powell claimed that negative comments and derogatory statements made by the board caused the community to lose faith in him and caused pecuniary and emotional damages.
Powell alleged in the suit that the school board acted beyond its authority in its decision to suspend and ultimately fire him and breached the terms of his contract.
Powell also asked state education commissioner Terry Holliday to investigate alleged misconduct in the district.
As for breach of contract, Powell’s suit claimed there had been no mutual agreement to terminate as referenced in his contract, and no “for cause” determination as referenced in his contract.
Prior to his official removal, the board hired a firm to investigate allegations involving Powell. Several charges were levied against Powell, including improper hiring of his wife as director of special projects, improper influence on site-based decision-making council decisions, poor management and failure to disclose a minor misdemeanor conviction on his application for employment.
In his suit, Powell also alleged defamation, saying the actions of the board had slandered and defamed him, causing the community to lose confidence in him.
“Members of the Montgomery County Board of Education have voiced negative comments and derogatory statements about the plaintiff, creating distrust in the community,” the suit claimed.
The suit further claimed that the board violated the Kentucky Open Meetings Law by exceeding the scope of a meeting agenda in which his suspension was ordered.
Powell’s suit claimed that written notice setting out the charges for removal “shall be spread on the minutes of the board and given to the superintendent,” according to state law.
The board failed to do so, the suit claimed.