Former Andover Public Schools Superintendent Sheldon Berman and former Assistant Superintendent Sandra Trach will have provide more information and the Town will have to do more than it has to date in the discovery phase of a $4 million lawsuit following a federal magistrate judge’s ruling Monday.

Fusion Academy filed its motion to compel last month, claiming the Town only provided answers to interrogatory questions from the select board, which had no direct role when the school committee denied two Fusion applications to open a school in Andover. The 2021 complaint names the school committee, Town of Andover d/b/a Andover School Department d/b/a Andover Public Schools, two former superintendents and a former assistant superintendent.

The town and Andover Public Schools do not comment on pending litigation. Andover News has asked Fusion Academy for comment and will update this story if they respond.

U.S. Magistrate Judge M. Page Kelley said Andover did not provide explanations or supporting evidence in its response to Fusion’s motion. The Town only provided answers from the select board, even though its response to Fusion’s amended complaint it said the select board had no role in reviewing Fusion’s applications.

“The court is not persuaded by the Town’s argument that it is under no obligation to do more than the exceedingly little that it appears to have done to answer Fusion’s interrogatories,” Kelley wrote in the five-page ruling. “Nor does the court accept the Town’s alternative argument that any order to furnish available information should be limited to information held by Trach and Berman, whom Fusion identifies as the former ASD employees with ‘the most knowledge’.”

In addition to ordering Berman and Trach, who have already been deposed, to answer Fusion’s integratory questions, Kelley ordered attorneys from both sides to “confer regarding individuals most likely to have relevant information.”

Fusion is accusing the school committee of violating the Massachusetts Open Meeting law, the Americans With Disabilities, and its First Amendment rights when it denied its applications in May 2018 and April 2019 to open a private school in Andover. 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.

Among the evidence Fusion cited about the school board’s open meeting law violations in its amended complaint was a draft press release in turned over by APS that announced the school committee’s rejection of Fusion’s second application before the board took its first vote on April 11, 2019. “Based on the tracked changes contained in email correspondence among the defendants, the draft started nearly a month before in March,” according to Fusion.

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