Suit to get job back as school board president moved to federal court

A suit by a member of the Jim Thorpe school board to get his job back as board president has been moved out of the county court and into federal court.

Paul Montemuro, of Penn Forest Township, through his attorney William E. Vinsko Jr., of Wilkes-Barre, of Wilkes-Barre, filed notice in the county court that the action to get his job back has been moved to the U.S. District Court of the Middle District of Pennsylvania.

Montemuro, a newly elected member of the board in last year’s general election, was elected board president at the Dec. 4 reorganization meeting on a 5-4 vote. On Dec. 11, the board voted to elect Gerald Strubinger as president, by the same 5-4 vote. On Dec. 4, Strubinger voted for Montemuro but voted for himself at the Dec. 11 meeting. Montemuro claims in his suit his removal as president was against the school code and the written policy of the school district itself.

Named defendants in the suit are the five members who voted to elect a new president, specifically Glenn Confer, Dennis McGinley, Raniero Marciante, Pearl Downs-Sheckler and Strubinger. The suit notes the remaining board members are Scott Pompa, Cindy Lesisko-Henning and Thomas J. Garritano.

Michael Levin, attorney for the defendants, filed a “notice of removal of civil action” with the county court Feb. 5. In that filing Levin states:

“This action is a civil action over which this Court has original jurisdiction under 28 U.S.C. 1331, as it involved alleged deprivation of the Plaintiff’s rights under the U.S. Constitution. Any civil action in a state court for which the district court of the United States have original jurisdiction may be removed to the appropriate district court where such action is pending, which in this case in the United States District Court for the Middle District of Pennsylvania.”

The filing indicates the case will now be heard by federal judge Robert D. Mariani.

The suit states Montemuro was elected for one year and should be allowed to serve the term he was elected to at the Dec. 4 meeting.

The suit quotes from a section of the state school code concerning the election of officers and claims the state constitution provides for the proper removal of an elected officer and that was not done in this case.

The suit states, in part, “the school board policy clearly and specifically calls “president of the (school board) an ‘election’ not an ‘appointment.’ ”

The suit adds, “Further, under the School Board Policy, if the board intended to reorganize, there was and remains an obligation to provide five days’ notice to all board members by mail from the board secretary.” The suit said no such notice was ever made.

The suit adds that state law as outlined by the Legislature “governs the presumptions that are to be followed in ascertaining legislative intent and states clearly ‘The General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.’ ”

The suit charges:

• Montemuro never engaged in any misconduct nor violated any provisions of the school code or school district policy since being elected president.

• The five who voted to remove him never provided Montemuro with any notice, evidence against him, or an opportunity to rebut whatever grounds the defendants had for removing him.

• The defendants “unilaterally and without legal authority” removed him as president.

• The defendants “cannot show that political affiliation with the majority of the school board or doing as they politically wanted was necessary to perform the functions of the school board president.”

• That Montemuro was “advised by certain members of the existing board that they did not want him to have access to the banks and the financial records as president of the board.”

The suit asks the court to order Montemuro reinstated as school board president for “one year; a public apology; equitable and declaratory relief; punitive damages against the individual defendants.”

The five-count suit alleges: politically motivated removal; violation of due process; improper state ouster; declaratory judgment; and action in mandamus.

The suit concludes by asking the court to “issue a writ of mandamus to automatically reinstate Montemuro as president for one year in accordance with the Pennsylvania School Code and the Pennsylvania Constitution, together with attorney’s fees and costs, pre and post-judgment interest and any other relief this Honorable Court deems appropriate.”

After the board’s action to remove Montemuro, the top attorney for the organization representing the state’s school boards was asked his opinion on the action taken in removing Montemuro.

Stuart L. Knade, senior director of legal services for Pennsylvania School Boards Association, said, “Should a majority of the board conclude that a change should be made, the board has that ability.”

His opinion supported the opinion of attorney Carl Beard, board solicitor, who said district policy states that officers serve at the pleasure of the board, meaning they can vote to remove them during any public meeting. The only requirement is that they give the public a chance to comment.

Knade also said that in the past, Pennsylvania courts have ruled that a school board can replace an officer whenever it chooses by a simple majority vote.

The county court has marked the action as “case disposed.”