Judge rules against plaintiff’s lawsuit versus District 9-R Board of Education

Judge Shopshire ruled against the plaintiffs on January 30, 2023 that were suing the District 9-R Board of Education and its election official for failure to timely declare a board vacancy and hold a required election.

Board Member Andrea Parmenter.

The contention began when Board Member Andrea Parmenter vacated the district that she was living in while serving on the board for that district.

Then, while allegedly living in a different district (District E), Parmenter allegedly voted on board business at board meeting(s) (5/11/2021, 5/25/2021, 6/22/2021, 6/28/2021), according to Board of Education records.

Then, the board failed to hold a required election for District D to fill Parmenter’s vacancy, the plaintiff’s alleged.

What appeared to be a sucker punch to the democratic process was then litigated by Plaintiffs Christina McMunn, Cam Formby, and Formby’s parents.

In the end, the judge summarized the plaintiff’s complaint in stating:

“Plaintiffs filed a Verified Petition Under C.R.S. 1-1-113, alleging two claims; 1) the
Defendant illegally cancelled the November 2, 2021 election for school board and
denied the electors the right to vote for school board members, and 2) failed to declare
and fill a vacancy pursuant to C.R.S. 23-31-129(3). Plaintiffs alleged the Board had notice
of the vacancy prior to August 9, 2021. Accordingly the Board was required to fill the
vacancy within the timeframe set in C.R.S. 22-31-129(2) and (3). Plaintiffs allege the
vacancy occurred outside of 90 days prior to the next election, Plaintiffs argue an
election should have been held for the seat in District D.”

Judge issues Order for Summary Judgement

This was the Judge’s Order in response to the Defendant’s Motion for Summary Judgement:

In Judge Shopshire’s conclusion she wrote:

“The Court finds the Board properly declared the vacancy on September 7, 2021, well
within the ninety days prior to the election (90 days falling on August 4, 2021). The
vacancy was properly filled upon appointment of Katie Stewart within the sixty days as
required by C.R.S. 22-21-129(2), and her appointment lasts until the election in
November, 2023. An election was not required, nor triggered by the declaration of the
vacancy on September 7, 2021. By law, the Board could not hold an election pursuant to
C.R.S. 22-31-129(3); it could only make an appointment to the vacant seat for Board
Director; said appointment was statutorily required to continue through the election
until November 2023. The Defendant, therefore, did not illegally cancel the November
2, 2021 election for Board Director for District D.”

However, the judge’s citation of C.R.S. 22-21-129(2) was in err because that’s a non-existent statute.

Likely, what she was intending to reference was C.R.S. 22-31-129(2), which states:

“(2) At the next board of education meeting immediately following the occurrence of any condition specified in subsection (1) of this section, the board of education of the district shall adopt a resolution declaring a vacancy in the school director office, and the board of education of the school district in which the vacancy occurs shall appoint a person to fill the vacancy within sixty days after the vacancy has occurred. If the appointment is not made by the board within the sixty-day period, the president of the board shall forthwith appoint a person to fill the vacancy. The appointment shall be evidenced by an appropriate entry in the minutes of the meeting and the board shall cause a certificate of appointment to be delivered to the person so appointed. A duplicate of each certificate of appointment shall be forwarded to the department of education.”

Well just because a district could adopt a resolution declaring a vacancy or recognize that a vacancy occurred, it does not mean that their recognition of that vacancy is the equivalent of when the vacancy actually occurred.

What’s problematic about Judge Shopshire’s conclusion in stating that the vacancy was filled within sixty days of Parmenter becoming a non resident of District D, was that it wasn’t true. Since Parmenter left the district in May of 2021 that means that the appointment should have been made by August 1 or 2, 2021.

Instead, Katie Stewart’s appointment wasn’t made until Sept. 20, 2021. That’s at least 112 days following the vacancy.

As such, it appears that the District 9-R School Board and its president failed to fill Parmenter’s vacancy within sixty days of her leaving, in violation of C.R.S. 22-31-129(2).

C.R.S. 22-31-129 (1)(d) deemed Parmenter a nonresident of District D at the latest on June 1, 2021 with this language:

“A school director office shall be deemed to be vacant upon the occurrence of any one of the following events prior to the expiration of the term of office:  If the person who was duly elected or appointed is or becomes during the term of office a nonresident of the school district in which the person was elected or, in the event the district has a director district plan of representation or a combined director district and at-large plan of representation, if the director is or becomes during the term of office a nonresident of the director district which the director represents unless the director has been elected at the time of or prior to the adoption of a director district plan of representation or a combined director district and at-large plan of representation by the electors or prior to a revision and redesignation of director district boundaries;”

Plaintiff Cam Formby had this to say about the Judge’s Order:

“I’m disappointed to say Judge Shropshire ruled against our Summary Judgment on January 30th.

We lost even though the courts agreed Andrea moved out of her district in May of ‘21. This allowed her to represent a district she didn’t live in and vote on issues.
The board also knew Andrea was moving out of District D, but according to the judge the board has no legal, ethical obligation or accountability for their board members.
The judge has set a precedent that breaking statutes and letting board members claim negligence is acceptable conduct,” said Formby.

Judge says that an election for District D was not required on Nov. 2, 2021

In her conclusion Judge Shopshire said that District 9-R did not illegally cancel the Nov. 2, 2021 election for District D, because one was not statutorily required.

“An election was not required, nor triggered by the declaration of the
vacancy on September 7, 2021. By law, the Board could not hold an election pursuant to
C.R.S. 22-31-129(3); it could only make an appointment to the vacant seat for Board
Director; said appointment was statutorily required to continue through the election
until November 2023. The Defendant, therefore, did not illegally cancel the November
2, 2021 election for Board Director for District D,” said Shopshire.

Specifically, Parmenter’s May 2021 vacancy from District D fell outside of the ninety days prior to the November 2, 2021 election. In fact, Parmenter’s vacancy occurred 155 days before the Nov. 2, 2021 school election.

Colorado Revised Statute 22-31-129 (3) says ” If the vacancy occurs more than ninety days prior to the next regular biennial school election and the unexpired term is for more than two years, an appointee to the office of school director shall serve until the next regular biennial school election when the successor for the remainder of the term is elected and has qualified. If the vacancy occurs within the ninety-day period prior to a regular biennial school election and the unexpired term is for more than two years, an appointee to the office of school director shall serve until the next succeeding regular biennial school election when a successor for the remainder of the term is elected and has qualified. Except as otherwise provided in this subsection (3), an appointee to the office of school director shall serve for the remainder of the unexpired term.”

Plaintiff’s attorney Scott Gessler did not respond to a request for an interview for this story.

Lawsuit and website created to promote transparency, accountability

A website was created in conjunction with the lawsuit to promote a special election and raise awareness. The founders desire leaders with integrity who are committed to transparency and accountability.

Specifically, their website is called Durango School Watch and it can be found at https://www.durangoschoolwatch.com.

21.10.25 Civil Case Cover Sheet

21.10.25-Petition-1

21.11.16 Answer – Durango SD

Adam Howell is a writer who believes in free press and the importance of the constitution. He can be reached by clicking on this link to the contact page.