1. INTRODUCTION & TESTIMONY OF DEBBIE JOHNSON

(This case came on for hearing before Honorable Thomas E. Humphrey, Justice, in Alfred, County of York, State of Maine, on August 20, 2004, at 1:00 p.m.)

THE COURT: Good afternoon. Please be seated, folks.
For the record, we are taking up Portland docket number CV-04-098, the matter of Gayle Fitzpatrick and Charles Rankowski, as individuals and parents of Jan, versus the Town of Falmouth and others. We are here in connection with the Plaintiffs' motion for a preliminary and permanent injunction. Before proceeding, Attorney Coles, is there anything that I need to be aware of before beginning the evidentiary portion?

MR. COLES: Only that our expert, Dr. Greg Yahr, is coming down from Portland, should be here around 3:30. If we could just take him out of turn?

THE COURT: I discussed that informally with counsel in chambers. In anticipation of there being no objection we will address that issue at the time when Dr. Yahr arrives. Anything preliminary for the Defense, Attorney Hewey?

MS. HEWEY: No, your Honor.

THE COURT: Thank you both very much. Attorney Coles, if you are ready to proceed?

MR. COLES: The Plaintiffs are ready to proceed.
Call Debbie Johnson.

(Whereupon, Deborah Johnson, being present in the courtroom, took the witness stand.)

MR. COLES: Your Honor, let the record reflect that every time I will hand a potential exhibit to the witness or witnesses, I will give a copy to Ms. Hewey.

THE COURT: Thank you.

THE CLERK: Raise-your right hand, state your name and spell your last name.

THE WITNESS: Deborah Johnson, J-O-H-N-S-O-N.

THE CLERK: Do you swear that the testimony you shall give in the case now in hearing shall be the truth, the whole truth and nothing but the truth, so help you God?

THE WITNESS: Yes, I do.

DEBORAH JOHNSON, called by the Plaintiffs, having been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. COLES:

Q. Ms. Johnson, you are the principal of the Lunt School in Falmouth?

A. Correct.

Q. How long have you been principal?

A. I have been in Falmouth as either an assistant principal or a principal for 13 years.

Q. Okay. When Jan Rankowski was in second grade, he was a student, correct?

A. Correct.

Q. He was a special education student?

A. Yes.

Q. Autistic student?

A. Yes.

Q. I want to show you what has been marked as Plaintiff's Exhibit 1 and ask you if those are fair representations of photographs of the child's world playground at the Plummer School?

A. Yes, these are accurate pictures of Kids' World. My understanding is the incidents that took place were at the Maze Craze.

Q. The Maze Craze is a playground on the other side?

A. The Maze Craze is the one nearest Lunt School, which is the primary school.

Q. Exhibit No. 1 does depict the Kids' World as of the year 2000 and shows the wood chips on the ground; is that correct?

A. Yes.

MR. COLES: Move to offer Exhibit 1.

MS. HEWEY: No objection.

THE COURT: Thank you. It is admitted.

BY MR. COLES:

Q. By the way, when does school start?

A. For kids, September 1st.

Q. That's 11 days from now, 12 days from now?

A. Correct.

Q. I presume that you have frequent contact with teachers in your school?

A. I do.

Q. You get in touch with them by leaving them notes in their boxes or talking to them or sending them e-mail; is that correct?

A. Yes.

Q. Okay. I want to show you what has been marked as Plaintiff's Exhibit 2 and ask you if this is a copy of an e-mail that you sent out to your teachers on or about September 30th of last year.

A. Yes, it is.

MS. HEWEY: Mr. Coles, may I have a copy, please?

MR. COLES: I apologize.

MS. HEWEY: Thank you.

MR. COLES: Move to offer Exhibit 2.

MS. HEWEY: No objection.

THE COURT: Thank you. It is admitted.

BY MR. COLES

Q. Amy Edwards, Jennifer McIntosh, Audrey Briggs, Donna Gibbs, Molly Gallivan, they are teachers at your school?

A. 1st grade teachers.

Q. 1st grade teachers.
The e-mail, Exhibit 2, which you sent out, was designed to alert them as to Jan Rankowski; is that fair to say?

A. About a child on the playground, yes.

Q. Well, a child on the playground who was a fourth grade home-schooled boy, is Jan Rankowski, correct?

A. This specific one was about Jan, yes.

Q. Okay. Presumably, before you sent out that September 30th e-mail you had a conversation with other people; is that correct?

A. Two teachers had come to me and said that there were concerns on the playground with an older child and --

Q. Okay, you have answered the question.
Did you have any conversations with Mora Katz, the special ed. teacher in your school, lust before you sent the September 30th e-mail?

A. I truly don't remember.

Q. Did you have a conversation with Barbara Powers, who is the principal of the Plummer School, prior to your sending out your September 30th e-mail?

A. Yes. Whenever I have a complaint or a concern about kids at Plummer-Motz, I always contact Barbara.

Q. You sent your e-mail based upon people telling you things about this 4th grade home-schooled boy; is that correct?

A. Correct, yes.

Q. Okay. Now, if you take a look at Exhibit 2, you're asking your teachers to document any inappropriate interaction between this boy and our kids; is that correct?

A. Appropriate or inappropriate, yes.

Q. Okay. This boy is Jan Rankowski and our kids are the kids in your school, right?

A. Correct.

Q. So this boy is different than the kids in your school?

A. He would not be in our school, he would be a 4th grader, correct.

Q. So this boy is different than our kids; is that correct?

A. He is not a child from Lunt School, yes.

Q. Okay. And the e-mail essentially says, follow this child around; if you see him doing anything either negatively or positively, jot it down and let me know. Is that the gist of your e-mail?

A. No, and that would not be the interpretation that the teachers would take of it, either.

Q. Well, I'm just reading exactly what your e-mail says. If you see him breaking any school rule or in any way negatively influencing or endangering other kids either physically or verbally, please remind him of the expected behavior. If he does not immediately comply, please ask his mother to intervene. Any time you have an interaction with him or his mother, please let me know at the and of that recess so it can be documented.
When you say documented, that is to be written down, right?

A. Yes. And let me clarify --

Q. Just answer my question. You have answered the question, thank you. You understand that there has been discovery taken in this case, depositions have been taken?

A. Yes.

Q. Okay. At the deposition of Timothy McCormack, who was the Superintendent of the School District, he agreed that the policy of the Falmouth School District was to treat all children without discrimination including hone-schooled children;
do you agree with that?

A. Yes.

Q. Superintendent McCormack also agreed with the following statement: A student with a disability shall be educated with nondisabled peers and be provided an opportunity to participate in nonacademic and extracurricular activities to the maximum extent appropriate.
Do you agree with that?

A. Absolutely.

Q. Superintendent McCormack also agreed with the following statement: That the suspension of a student for more than 10 days requires a PET meeting.
Do you agree with that?

A. Yes.

Q. Timothy McCormack also agreed that no other student in the Falmouth school system has been suspended from playground use during school hours for seven months.
Do you agree with that?

A. I don't know anything about that.

Q. At the deposition of Carolyn Crowell, also known as Polly Crowell, she agreed that mainstreaming of disabled children is important for their development and that the least restrictive alternative be provided to disabled and handicapped children.
Do you agree with that?

A. Yes.

Q. Let me ask you, as the principal of the 1st and 2nd grade in Falmouth, if you would agree that isolating a child to play alone for seven months is detrimental to that child?

A. Probably.

Q. By the way, what are the recess playground hours in Falmouth, at the Falmouth school that is both the Lunt and Plummer-Motz School?

A. Yeah, I don't have the Plummer-Motz one but I know that Lunt School, the 1st graders go out and 10:20 and the 2nd graders go out at 1:40, and there is also built into the schedule that teachers can take kids out whenever they need to go out.

Q. The recess time is normally how long?

A. Twenty minutes.

Q. Okay. Other than Jan Rankowski do you know of any other child, either at your school or the Plumper School. that has been followed around for six weeks and documented on everything he has done in the playground?

MS. HEWEY: Objection to the form of the question. That assumes that Jan Rankowski has been followed around and documented.

MR. COLES: I'm laying a foundation, your Honor.

THE COURT: Fine, I'll sustain the objection to that question.

BY MR. COLES:

Q. On you know any other child that has been followed around and documented?

MS. HEWEY: Objection. The same objection.

MR. COLES: I haven't mentioned the child's name.

THE COURT: Any other child.

BY MR. COLES:

Q. Do you know of any child that has been followed around for six or seven weeks and had their activities documented, written down, while they were playing in the playground?

A. Yes.

Q. How many other children?

A. I can't give you a number but I know that there a number of children, who we keep data on, to be able to help them with their social activity on the playground.

Q. As to those other children, have they been suspended from using the playground for seven months?

A. No.

Q. No

MR. COLES: No further questions.

THE COURT: Thank you. Attorney Hewey.

MS. HEWEY: Thank you.

CROSS-EXAMINATION

BY MS. HEWEY:

Q. Debbie, when Mr. Coles was asking you about this e-mail, you said that you had discussions with two teachers and that prompted you to write the e-mail, could you tell the Court what those discussions were?

MR. COLES: Objection, your Honor. That is hearsay.

THE COURT: Attorney Hewey.

MS. HEWEY: Your Honor, it is not hearsay. It is not submitted for the truth of the matter but why she wrote the e-mail.

THE COURT: The objection is overruled. You may answer that question.

THE WITNESS Thank you. I had a couple of 1st grade teachers, who came to me after they had their children out not at the scheduled recess time but after lunch, just their class, and reported to me some incidents with Jan on the -- mostly on the tire swing and with him talking back to them, and were really concerned. They were just reporting to me.
At that time I talked with Barbara. As I said, I always talk to her about the kids that aren't at my school. And then again as general practice if there is any kind of issues, I talk to the other teachers about it, just to be aware of it.

Q. Okay. And Mr. Coles read a portion of that e-mail about documentation, anytime you have interaction, so that it can be documented; he didn't read the next sentence, could you read that?

A. If he is reminded and does comply with your request, let me know that, too.

Q. So you were looking for the good and the bad; is that right?

A. Yes.

MS. HEWEY: I have no further questions.

MR. COLES: Redirect.

REDIRECT EXAMINATION

BY MR. COLES:

Q. Let's do almost the very last sentence: Hopefully, this will be resolved quickly. Did you write that?

A. Uh-hum.

Q. It was your anticipation that this would be resolved within a matter of a few weeks?

A. No, it's my anticipation with any child, when there is a behavior thing, it will be resolved immediately.

Q. Did you know that it was going to be unresolved for seven months?

A. Of course not.

MR. COLES: No further questions.

THE COURT: Thank you. Attorney Hewey?

MS. HEWEY: No, your Honor.

THE COURT: Thank you. Thank you, Ms. Johnson.

MR. COLES: Call Carolyn Crowell.

THE COURT: Thank you.

(Whereupon, Carolyn Crowell, being present in the courtroom, took the witness stand.)

 

Reported by: Timothy Thompson, RMR, CRR Official Court Reporter

(This transcript was scanned from a certified copy of the original and converted to text using OmniPage Pro 14.)

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