Report: Remarks Untrue, Not Illegal

Board of Education member Darnell Goldson did not necessarily harass New Haven Public Schools’ Chief Financial Officer Phillip Penn by implying that Penn was racist. He did violate board rules that promote efficient and respectful meetings.

This is the conclusion of a four-month investigation by Amita Patel Rossetti of the Waterbury-based law firm Tinley, Renehan & Dost.

Rossetti’s 44-page report looks into Penn’s harassment complaint against Goldson and what the Board of Education should do about it.

“Certain statements made by Mr. Goldson were defamatory in nature and when taken in context, are reasonably interpreted as raising an unfair inference that Mr. Penn acted out of racial animus,” Rossetti wrote.

Goldson’s response: the investigation of the harassment complaint is fine. Investigating whether a board member’s conduct violates bylaws is not fine without board approval.

“Goldson was selectively prosecuted for minor infractions that all board members at one time or another have made,” Goldson and his lawyer, John R. Williams, wrote in a statement released Monday.

The board is scheduled to discuss whether to release the report to the public during at Monday night’s Board of Education meeting. Board President Yesenia Rivera said that she expects to schedule a special meeting before the end of the year to discuss what to do about the report.

Read the full investigatory report here. Read the statement from Goldson and Williams on the report here.

“That Outrageous Accusation”

The investigation has been half-in and half-out of public view for months, with vague references to the investigation at Board of Education meetings and little information on what it was about.

NHPS Superintendent Iline Tracey hired Tinley, Renehan & Dost in late June to investigate Penn’s harassment complaint against Goldson.

Penn asked for the investigation after a particularly intense Board of Education meeting on March 23. At the meeting, Goldson objected to adding money to the district’s contract with a white law firm ​“by snatching it out of a contract with a local, African-American firm.”

Penn emailed Tracey immediately afterwards. He said that Goldson accused him and fellow NHPS administrator Michael Pinto of making race-based decisions about which law firms to hire.

“As a result of that outrageous accusation in a public meeting, my personal and professional reputation has been damaged by Mr. Goldson. Thus, I have no choice but to raise this formal harassment complaint against him,” Penn wrote.

Penn also asked for a copy of the meeting recording to review with his own attorney, because he was considering suing Goldson.

Tracey contacted Tinley, Renehan & Dost on June 10. This was two days after a board meeting when Goldson responded to Penn interrupting him by saying, ​“You’re not going to interrupt me again. I know you have privilege. You’re not going to use that privilege on me anymore.”

The law firm worked out the scope of the investigation in the weeks after and formally started working on the case on June 29. The firm emailed Goldson about the investigation the next day.

Goldson declined to participate in the investigation. Mayor Justin Elicker also declined. The board members who did talk with Rossetti were Edward Joyner, Larry Conaway, Matthew Wilcox and Yesenia Rivera. Rossetti was unable to connect with Tamiko Jackson-McArthur.

Rossetti’s Conclusions

The report found that those listening to Goldson’s statements would assume racism on Penn’s part. However, Penn was following generally-accepted accounting principles in being transparent about how the district expected to spend money and did not know the race of the contractor, Rossetti found.

At the time, there was no specific policy that asked the finance department to proactively hire non-white law firms or other contractors. (The board finalized and adopted that policy in June.)

Does the First Amendment protect Goldson’s criticisms? Not if the criticisms are defamation, or knowingly making untrue statements to harm someone’s reputation, Rossetti said.

Were the statements harassment? Not as defined in employment law, because Goldson by himself is not Penn’s employer. Penn’s actual employers, the city and the superintendent, could have been found guilty in court of allowing a hostile work environment by not investigating Penn’s claims, though.

Rossetti did find that Goldson violated several board bylaws intended to promote respectful and efficient meetings. To address this, Rossetti recommended that the board either distance itself from what individual board members say in general or denounce Goldson’s statements.

She also wrote that legal methods may not be the best way to settle the situation. Instead, she suggested the board undergo training ​“to promote cooperation and understanding among the members and to focus on the tasks required to serve the students of NHPS.”

Goldson’s Response

Board members received Rossetti’s report in late November. Goldson and his lawyer responded on Monday with an 8‑page document repudiating the report. The response focuses on the power of the superintendent to launch the investigation, a different reading of the board meetings in question and a question about why the investigation targets him as opposed to other board members.

Tinley, Renehan & Dost were asked to do more than investigate whether a particular incident counts as harassment but also whether it violates state, federal, local laws or board rules. This crosses over into territory that neither the superintendent nor individual board members have the right to ask a law firm to investigate, Goldson and Williams wrote.

“It was understandable that if the Superintendent received a valid complaint of harassment, it should be investigated. It was investigated and it was dismissed. That should have been the end. But it was not. Instead, Tinley went further to investigate whether Goldson’s behavior at BOE meetings had violated local, state or federal laws, policies, and/or bylaws. Now this investigation became a witch hunt – the goal became to find something to hang around Goldson’s neck,” they wrote.

Goldson and Williams cite Board of Education bylaws that require a full board vote to take action against a particular member for violating the bylaws. The superintendent does not have a role in that process, they wrote.

They wrote that the report did not provide evidence that any one of Goldson’s statements were false or that he accused Penn of being racist. They pointed to the central claim of the report that in context, Goldson implied racism.

“Translated, it says that if you stretched your imagination enough, it could be implied that a question raised could be considered racially accusatory,” they wrote.

Goldson’s response also questions why he is the one being investigated for violating board bylaws when others also violate the bylaws. Goldson and Williams attached evidence to their report of Goldson making a motion to censure Rivera and Wilcox in May that never went on an agenda. The response says that the timing of the investigation is fishy and that Goldson and Williams believe the investigation is a retaliation for that motion to censure.

Read Goldson’s motion to censure Wilcox here for pointing out in public what Rossetti would later conclude in her report. Read the response to that motion by the law firm Shipman & Goodwin here.