Silver Creek man fights to "un-resign"

A temporary court injunction sought by Michael Cave, of Silver Creek, to force the Board of Education of Nance County District 30 to reinstate his seat on the Twin River School Board has been denied.

The school board is comprised of six board members. Cave is suing The Board of Education of Nance County School District 30, and individual school board members including Lawrence Stec, Marc Swantek, John Rice, Daniel Preister and David Baxa.

Cave resigned from the Twin River school board at the urging of fellow board members during the district’s regular meeting in May .

Cave said he believes the board’s suggestion that he resign, came as a result of his opposition to the idea of consolidating the Silver Creek, Monroe and Genoa schools into one campus, which he claims, would be located in Genoa.

“Some people in Silver Creek have voiced their disagreement with consolidation and moving everything to the Genoa schools,” Cave said. “In the course of these discussions, which have gone on for a few years now; I changed my mind and decided it was important to represent the people in this matter.

“If consolidation of the schools comes it usually means building new buildings and in fact a letter to our district parents sent out in January suggested the possibility that a bond issue would be needed to make it happen.

“I think it comes down to a playground argument. The rest of the board wants what they want and they want everyone to be on-board with it. I went against that and they decided to try to find a way to get me off the board.”

None of the board members were available for comment on Cave’s charges.

The minutes of the May meeting show the board went into executive session at 8:12 p.m. for “discussion of personnel.” The board returned to open session at 9:20 p.m. and no action was taken with regard to the discussions held during the closed session.

Cave said, once in executive session, the board presented him with a memo suggesting it was in the best interest of the district that he resign from the board. The memo, signed by all the board members but presented to Cave in May is dated March 28.

The memo included a list of nine specific behaviors the board considered “as being disruptive and destructive to Board function.”

Included in the list were allegations of emotional outbursts by Cave that resulted in other board members being cautious in subsequent conversations for fear of evoking Cave’s anger; allegedly invoking his board status to give directives to staff members and coaches; breaching the trust of the board by disclosing matters considered in lawful closed sessions and impugning the trustworthiness of fellow board members and the administration.

“We are requesting that you consider this memorandum, the best interests of the school district, and of this board, and that you make your decision accordingly,” the memo reads.

Cave said that in the stress of the moment he agreed to tender his resignation, but he reconsidered when district patrons later encouraged him to continue on the board.

“I have no proof, but it seems to me that a memo signed by all the board members shows there had to be an illegal meeting of the board where they got together to agree to the language of the memo and signed it,” Cave said.

It is Cave’s contention, that since the board did not formally accept his resignation following the executive session in May and he had submitted a written withdrawal of his resignation prior to any action in the June meeting, that he is entitled to remain an active member of the board until the courts rule.

Cave formally sued the school district in Nance County District Court on June 20th following the regular meeting June 16 in an attempt to regain his seat on the board.

Cave’s amended complaint filed July 18 which included allegations that Cave had no prior notice of the purpose of the executive session in May; that the board has illegally declared a vacancy on the board; that the board is denying him his civil rights by prohibiting him from participation on the board and that the board acted outside its authority and in violation of open meeting laws.

The Twin River School District filed a counter suit in July arguing that Cave’s request for a temporary injunction be denied on the basis that he can not claim great or irreparable injury to himself if an injunction is not granted.

The district’s attorney, Jeanelle Lust further argues that under state law Cave is not entitled to “unresign” or be reinstated from a position he voluntarily vacated.

Court documents show Lust’s argument that Cave is misconstruing the function of state statutes, which she contends define the difference between creating a vacancy and accepting a resignation.

“Where the holding of an office in not compulsory, in the absence of legal provision, resignation upon delivery to the proper authorities takes effect without acceptance,” Lust wrote. “Thus, Cave fails to recognize the distinction between the creation of a vacancy and the effectiveness of his resignation.

“He simply cannot unresign. The Board of Education, however, is allowed to run its business in an orderly fashion and not declare a vacancy for the purposes of taking steps to fill it until the next conveniently and regularly scheduled public meeting.

“Nebraska case law has long recognized that a resignation is effective immediately when made, not later when acceptance is required to create a vacancy.”

Cave said the bottom line in his mind regarding the law suits filed by he and the district center around whether his resignation could be considered as having created a vacancy on the board when, he alleges, the board failed to take action on it right after the executive session in May.

“I just don’t know why the board would go to all the trouble of writing a memo, which is dated in March, and try to get me to resign, when all they have to do is vote me down on the issue,” Cave said.