Attorneys for a private school suing the Andover School Committee accused district lawyers of “material failure” to comply with discovery rules and questioned why Andover Public Schools did not disclose an open meeting law complaint filed with the Massachusetts Attorney General’s office.
“Fusion had no knowledge that the OML complaint had been filed until Fusion’s counsel received an email from the complainant attaching the decision at about 4 pm on November 22, 2024,” lawyers for Fusion Academy wrote in a court filing Monday. “Given the defendants’ awareness of the OML complaint for many months, Fusion questions why the defendants waited until November 26 to make a disclosure considering their discovery supplementation obligation.”
Fusion also said the school committee had failed to turn over “two important documents” that were referenced in the AG’s ruling.
Fusion in seeking $4 million in lost revenue, interest and attorney fees in a lawsuit filed in U.S. District Court in Boston after having applications to open a private school in Andover twice denied by the school committee. The company, which runs schools for students in grades 6-12 who struggle in normal school settings, is seeking $2.6 million for the 10-year lease it signed at 3 Dundee Park Drive in September 2018 and $1.4 million for its build out of the site.
By policy, the Town and APS do not comment on active litigation.
Last month the Attorney General’s office ruled the school committee unintentionally violated the state Open Meeting Law when three members discussed by email the board’s response to a private school’s application to operate in Andover. Fusion’s brief was filed in response to the school committee’s brief arguing the open meeting law violation only pertained to the first of two times the board rejected Fusion’s application to open a private school in Andover and the AG’s ruling “changes nothing regarding the ASC’s argument that there is no cognizable procedural due process claim.”
“Solely for purposes of argument, however, should the Court determine that the ASC violated Fusion’s procedural due process rights, the ASC submits that the appropriate remedy would be for the Court to remand this matter back to the ASC,” the district said in its filing.
“Fusion objects to the effort of the defendants to advocate about ‘the appropriate remedy’ for their unconstitutional acts. Fusion has asked for, and is prepared to prove, money damages in the millions of dollars,” attorneys for Fusion wrote in their response. “There is no mechanism known to Fusion to ‘remand’ a civil action to a municipal agency in the absence of a request for some sort of equitable relief, never mind a mechanism to ‘remand’ a civil action for money damages to the very municipal entity from which the damages are sought.”
In his ruling, Assistant Attorney General Matthew Lindberg said former school committee members Joel Blumstein and Tracey Spruce did not violate the law when they discussed a memo outlining the school district’s arguments for denying Fusion Academy’s application to open a school in Andover in 2019. But the law was broken when Blumstein forwarded the documents to former Chair Shannon Scully, creating a quorum of the five-member school committee.
Fusion argued the AG’s decision negates the school committee’s argument in the federal lawsuit that it did not violate the open meeting law when Fusion’s first application was denied in April 2019.
“Had Fusion been asked to provide information in connection with the OML complaint, it would have pointed out that the ASC admitted in its answer to the operative complaint that Blumstein and Spruce edited and changed [the] draft report to better support the sham vote to be taken at the upcoming ASC public meeting,” Fusion said.