A revised lawsuit now asks Cole County Circuit Judge Pat Joyce to void the actions taken at the State Board of Education's Nov. 21 and Dec. 1 meetings - including the 5-3 vote to oust Education Commissioner Margie Vandeven from her job.
If the court agrees, Vandeven would have her job back and the board's Dec. 1 vote to fire her would be erased, along with the Nov. 21 vote to fire her that failed on a 4-4 vote.
The 33-page amended lawsuit was filed Tuesday, a week after Joyce denied the state's request to dismiss the original suit filed Nov. 28.
"I think this needs more discussion," Joyce said last week.
Duane Martin, the Columbia attorney representing Laurie Sullivan, a teacher in the Springfield Public Schools, argues in the revised suit that "the State Board knowingly and/or purposefully violated" the state's Open Meetings/Open Records law when it held the two closed meetings and, therefore, "all business conducted during the" two meetings is "void due to said violations."
The revised lawsuit says its arguments are based partly on statements board member Eddy Justice made during a deposition taken last week.
Justice, of Poplar Bluff, is one of the 10 people Gov. Eric Greitens named in his efforts to fill five board vacancies.
In the 7th Congressional District, where long-time board member Peter Herschend was serving on an expired term, Greitens ultimately named three members - Melissa Gelner of Springfield, first; then Dr. John Sumners, Joplin; then Jennifer Edwards, Springfield - in what many have said was part of Greitens' quest to oust Vandeven.
But Sullivan's lawsuit doesn't challenge Edwards' membership on the board.
That complaint is in a different lawsuit, also assigned to Joyce, where Dr. John Sumners of Joplin - who was Greitens' second appointee to the 7th District seat - argues he wasn't removed from the board legally and, therefore, Edwards' appointment wasn't valid.
Sullivan's revised lawsuit said Justice "admitted there was no discussion relating to the Commissioner of Education (Vandeven) or the Interim Commissioner of Education (Roger Dorson) individually as employees or their performance ratings during the closed meeting" on Dec. 1.
Martin argued the failure to discuss their personal information or their personnel records in a closed session violated the law, when the notice for the closed session included those items as reasons for the it.
The lawsuit also said Justice reported that the board discussed several issues during the Dec. 1 closed session that should have been discussed during an open session, including:
A threat to obstruct the state board in the future if the motion to remove Vandeven as commissioner prevailed.
Aggregate student test scores.
Deferring the decision regarding Vandeven's removal to a later time.
Questions about students with dyslexia.
Comments about the "Top 10 by 20" effort, which was a former strategic priority for the state board.
Fourth-graders' reading proficiency.
The "culture" within the Department of Elementary and Secondary Education and its employees.
And, the lawsuit says, the state board violated the Sunshine Law at both closed meetings "by discussing the recognition of the last appointed individual as the voting member from the 7th Congressional District, and voting as to the removal of the other two appointees from the meeting."
The attorney general's office has argued during court hearings that only the governor has the authority to decide who should be serving on the board before the state Senate has confirmed an appointment.
But, the lawsuit argues, a board member said during the Nov. 21 meeting that "he believed it would be appropriate for the State Board to seat or recognize the last appointed individual, (Jennifer) Edwards, as the Board member with voting rights from the 7th Congressional District," after which the board voted on a motion "to remove all non-legal persons from the meeting."
That motion and the discussion "violated Missouri Sunshine Law, in that it was required to occur in open session," Martin wrote in the revised lawsuit.
Since the court should rule the Nov. 21 vote "to remove all non-legal persons from the meeting" was an illegal vote to "recognize" Edwards as the rightful board member from southwest Missouri, Martin wrote, "all votes and/or actions following which required an affirmative vote from Ms. Edwards to pass are void."
None of Greitens' appointees have been confirmed by the state Senate yet - but state law allows members of boards and commissions to begin serving immediately if they're appointed while the Legislature isn't in session, then requires them to be confirmed within 30 days of the start of the General Assembly's next session.
When lawmakers began the 2018 session Jan. 3, Greitens withdrew all five appointees' names then re-submitted them to the Senate - a move that gives the Senate until mid-May to confirm the appointments.
However, that move also left the state board with only three active members, when at least five are required to conduct any official business - so it can't act on anything for the time being.