Sisney’s Response to District’s Motion to Strike (or, the Octopus Papers)

Note: This article was written by ROBIN READER (612) and was originally published on her website Broken Arrow Forum on March 15, 2011, and reappears here on this blog with her permission.

1) “When an octopus believes it is in danger, it squirts out an ink like substance which fills the water with darkness so the cephalopod can get away. Just like an octopus, the District is squirting its dark ink so it can hide the misdeeds perpetrated by the Board Defendants; cover their bias, bad faith, their arbitrary and capricious actions taken against the Plaintiff and consequently, the public the were entrusted to serve.”

Wow. Sisney would know all about using diversionary tactics to muddle the issues.

2) “Plaintiff has the right to seek redress from the courts for breach of contract and has the opportunity to show that the Defendants acted in bad faith, acted arbitrarily, capriciously and did not have just cause to terminate him.”

It would be interesting to see Sisney present actual evidence of this to a jury. I’m not getting my hopes up too high though. He said in his federal lawsuit that he did not have any evidence of bias, and he has not begun discovery in this lawsuit. Where and when is he going to get this evidence? From the 2/23 Response:

“Plaintiff has not yet started discovery on his contract causes of action. He intends to take, at a minimum, the following depositions: Maryann[e] Flippo, Shari Wilkins, Sharon Whelpley, Gary Gerber, Mark Miller [presumably Bill Miller], Trish Williams, Ann Wade, Doug Mann, Laura Holmes, Mark Erwin [Maj. Mark Irwin of BAPD], Mike Rampey, Michelle Day, Ricky Branch, Steve Burrage.”

Sisney explains that he has only had his current attorney since November 2010, and discovery cutoff is July 2011. So how does this explain his failure to even start in the two years between September 2008 and November 2010? Now the 7 months between November 2010 and July 2011 is not enough? And he still hasn’t even started? He has done nothing but stall for time since he filed his first lawsuit in September 2008. Where are all the documents he claimed to have in January 2009? Why doesn’t he use the compelling evidence he provided in his police report? Why has he deposed NOT ONE witness in over 2 1/2 years? His hopes were on Sherri Combs’ audit; now, even after it has been thoroughly discredited, he is still desperately trying to resurrect its relevance.

This promise to take these depositions just sounds like more bluster, intended to intimidate. Sisney apparently included only the cover page of Combs’ deposition with his filing; likely an attempt to make it look like there was a lot of substance behind his claims about the audit findings, without allowing the actual document to prove the opposite.

I notice that even though a 10/2/2008 Tulsa World article said that Richardson’s law firm was at that time in the discovery stage and investigating connections between the board members and Air Assurance, Sisney still had to admit over a year later that he had no evidence of any wrongdoing by Air Assurance or the board members. Whatever was turned up, if anything, was clearly not useful in proving Sisney’s claims.

3) “Most especially, District doesn’t want the Court to review the audit conducted by the State Auditor and presented to the Board. District wants all of the evidence of the competitive bidding violations expunged.”

Sisney argues that Sherri Combs’ audit work papers should be included as evidence, apparently based only upon his supposition that the District doesn’t want it. He implies that there is even more wrongdoing by the board members to be investigated, by mentioning the second audit. He does not mention the reason for the second audit: that Combs’ audit was never released due to concerns that she was influenced by Sisney and his group of supporters. These concerns came up when it was discovered that she did not interview many key individuals, met with Sisney supporters who provided her with documents, included irrelevant and unverified hearsay, secretly taped recorded the exit interviews with the Broken Arrow School Board, and provided the audio to individuals who had been attacking the District in the press. If allowed as evidence, it seems that the work papers and related activities by Sisney and his supporters would do him more harm than good.

4) “Now in its Motion to Strike, the District, sensing real danger, sprays ink all over the evidence to hide the facts in controversy…”

The points Sisney makes are:

1) The three were biased, and affidavits from Stover and Updike saying so should be allowed as evidence. “The District’s problem is that the Plaintiff has the right to present evidence to show the Defendants bad faith and biased actions.”
2) The board did not consider real evidence in executive session on the day they voted to fire him. “…the two non-defendant Board members present in the October 23rd meeting both testify that no evidence was presented to the Board and there was no discussion on the ‘reasons’ for termination.”
3) The board’s decision should not be final, Sisney calls this premise a “central flawed proposition that the firing of Plaintiff is a final unreviewable decision of the Board.”

The District’s “Motion to Strike” and “Reply”, both filed 2/7/2011, deal with these. The 3/14/2011 “Reply in Support” deals with them again. I sense more eye-rolling resignation than ink-squirting fear, but whatever.

1) Sisney waived his due process hearing, and with it,”…the plaintiff has waived any and all of his rights to contest the impartiality, motives and rationale of the members of the School District’s Board of Education…”
2) Oklahoma law does not list specific requirements for evidence at a dismissal hearing. Stover’s and Updike’s carefully worded lists of specific things that weren’t done don’t have any bearing on whether evidence was considered. Updike’s claim that there was not any presentation of any evidence against Sisney is contradicted not only by Stover’s previous affidavit stating that the board members received information supporting the reasons for possibly dismissal but also by her own statement that there was information presented in the meeting.
3) OKLA STAT. tit. 70, section 6-101.13 “The decision of the local board of education concerning the dismissal or nonreemployment…shall be final.”

Let’s also keep in mind that there was plenty of discussion of Sisney’s evaluation and contract extension, including:
– 4 hours in executive session on July 14
– 4 hours in executive session on July 22
– 6 hours in executive session on August 4
– 1 1/4 hours in executive session on October 6
– 1 1/2 hours in executive session on October 23

Bob Lewis even wrote an editorial about it in August 2008, asking what in the world could be taking so long, considering what a top performer Sisney was. After all this discussion of Sisney’s performance, and after reviewing the supporting information at the suspension meeting on October 6, it might not have taken long to present the required information on Oct. 23, considering how familiar everyone probably was with it by then.

Even so, the board was in executive session for an hour and a half on October 23, 2008. Updike claimed in her affidavit, “…there was not any debate, discussion or presentation of any evidence against Dr. Sisney. All that occurred was a reading of the allegations and some other documents.” I wonder what they were doing in there for an hour and a half, if there was no discussion. Ms. Updike’s attempt to imply that the three shut down debate seems to be a less than accurate representation of what went on. This is not surprising, seeing as another statement in her affidavit characterizes Shari Wilkins’ gentle and tactful encouragement to Sisney to do what he suggested he do – which Updike agreed to – as “repeated demands”.

I also wonder what “other documents” were presented that Ms. Updike did not consider to be evidence relevant to the reasons for possible dismissal. From seeing her often-displayed tendency to mischaracterize the facts to give a certain impression (most of which was probably scripted for her by Jim and Lee), I’m not inclined to take this statement seriously either.

5) “The District now appears to admit that the majority of the School Board was biased but so what – a biased board can decide the Plaintiffs fate under the rule of necessity and due process safeguards are thrown to the wind.”

The District has of course not admitted anywhere that the majority of the School Board was biased. Nevertheless – so what already. Sisney waived his due process hearing.

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