There is an update on the lawsuit that stems from a dispute over competing appointments for a Greenwich school board vacancy created by the July 2024 resignation of Republican chair Karen Kowalski.
Back on October 21, 2024 when the BOE held an emergency meeting where 5 members in attendance voted 4 to 1 to elect former educator and PTA volunteer Jennifer Behette, a Republican, to fill the remaining year of Kowalski’s term.
The next day, the Selectmen voted 2-0-1 to appoint harbor master Paul Cappiali to the same slot.
On Oct 24, 2024 Mr. Cappiali shared Republican Wendy Vizzo Walsh’s log in link to participate by Zoom but was removed as a panelist.
The conflict over who is the legitimate appointee has pitted Democratic board members and Ms Behette against First Selectman Fred Camillo in both a FOIA complaint and a lawsuit initiated Dec 9, 2024.
After declining to expedite a decision, the FOI commission first issued a preliminary finding, then a final ruling in October 2025 that the school board’s emergency meeting violated FOIA regulations because it did not meet the standard of an emergency.
BOE chair Hirsh said in a statement to the press that the ruling failed to address the legality of any appointment.
The Republican BOE “caucus” which included Cappiali at the time, wrote a LTE saying the school board faced the possibility that an entire year of meetings and votes might be voided.
The FOI commission said the complainant would have to seek relief from the Superior Court for a judicial determination regarding who may appoint members to serve on the school board.
Since the start of the lawsuit, Mr. Cappiali was included on the Nov 2025 Republican election slate for school board and is now a member of the 8-person board.
Democratic defendants Kathleen Stowe and Laura Kostin are no longer on the school board. Ms Behette completed the remainder of Kowalski’s term and is no longer on the board. Karen Hirsh and Sophie Koven continue to serve.
Jurisdiction
That brings us to the defendants’ Feb 27, 2026 new motion to dismiss.
It asserts that the court lacks jurisdiction over them as individuals because they are only named in their official capacity.
They argue, “Indeed in opposing Defendants’ previously filed motion to dismiss (on other grounds) Plantiffs admitted that ‘the [G]BOE Member Defendants are not being sued in their ‘personal capacities’ [but] are being sued in their official capacities as members of the [G]BOE.’ (Emphasis added).”
Moot and Non-Justiciable
The new motion to dismiss asserts the matters are moot and non-justiciable.
Further they argue the FOI Commission did not award any relief to plaintiffs regarding future votes to be taken by Ms Behette and plaintiffs didn’t appeal the FOI commission’s decision not to nullify those future votes.
As for what is “justiciable,” they cite case law: Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569 (2004) and AvalonBay Communities, Inc v. Orange 256 Conn. 557, 585 (2001) to argue justiciability requires an actual controversy between or among parties capable of being adjudicated by judicial power, and that the court may not be used to obtain judicial opinions upon points of law where the question presented is purely academic.
They cite Taylor v Zoning Board of Appeals 71 Connecticut App. 43 46 (2002) which talks about mootness when circumstances have been resolved or lost significance and the controversy no longer exists.
Ms Benette’s term ended Nov 5, 2025 and Mr. Cappiali was elected to the board on Nov 5, 2025 and sworn in on Nov 20, 2025.
In their 65-page counterclaim, the defendants deny that they conspired to call an unlawful meeting and deny that Behette was unlawfully appointed. They deny that Conn. Gen Statute 7-107 provides authority for the Selectmen’s actions to attempt to fill a vacancy on the school board.
They deny Cappiali was legally appointed and certified as a board member. They deny that he was required to be allowed to participate as a board member prior to his election in Nov 2025 or that he was impeded from attending board meetings as a member of the public.
On page 8 they say the school board was faced with a legitimate emergency caused by the Selectmen’s 9:00am posting on on Oct 21, 2024 of a notice for special meeting at 9:00am on Oct 22, 2024 to discuss and vote on filling the school board vacancy.
Also they say the Selectmen had no authority to fill the slot and gave no advance notice to the school board of their anticipated actions.
On page 9 of the counterclaim, They deny the “sole” justification for the emergency meeting was to have someone on the board in time for an upcoming Oct 24, 2024 budget meeting.
On page 10, they deny the assertion that BOE “defendants continued unlawful conduct is putting the town’s public education system at risk.”
On page 13, they deny the assertion they didn’t have quorum when Behette was counted as the fifth vote to retain BOE counsel in the FOIC matter.
They deny the plaintiffs are entitled to relief and damages in the form of meetings that included Behette being deemed null and void.
On pages 26-27 they argue that Conn. Gen Statute 10-219 is the controlling statutory authority for the purposes of appointments to the school board, and the Selectmen don’t have that appointing authority under the town charter.
Page 28 refers to Gen Statute 10-219, which states: ‘If a vacancy occurs in the office of any member of the local board of education, unless otherwise provided by charter or special act, such vacancy shall be filled by the remaining members of said board until the next regular town election, at which election a successor shall be elected for the unexpired portion of the term, the official ballot specifying the vacancy to be filled.’
Further they say on page 31 that when the Selectmen or First Selectman are authorized to make appointments to boards, commissions or committees, there are requirements including working with SNAC and RTM.
On page 37 they say the plaintiffs are not entitled to the equitable relief they seek “because of their unclean hands.”
“The plaintiffs have engaged in unethical and wrongful conduct regarding disputes at issue,” the defendants say.
On page 46 the defendants say the First Selectman orchestrated the abrupt departure of a member from an executive session on Oct 17, 2024, so the school board would not have quorum.
“On information and belief, the Board member left the GBOE meeting at the request of First Selectman Fred Camillo.” (page 47)
Republican members of the school board then made a motion to delay the vote to fill the vacancy due to the absence of the member who left.
Defendants say the board voted to delay the final vote on a candidate and publicly stated the vote would occur at an already scheduled special school board meeting on Oct 23, 2024. They said the Selectmen were made aware of the delay from Oct 17, 2024 to Oct 23, 2024.
But, they say, on October 21, 2024, at approximately 9:00am, the Selectmen posted a notice for a special meeting at 9:00am the following day, October 22, 2024, to fill the school board vacancy. Later the same day the special meeting notice was revised to start at 3:00pm on Oct 22, 2024.
“The revised agenda for the change of the start time from 9:00am to 3:00pm was posted by the BOS in the town clerk’s office at 2:45pm on the afternoon of Oct 21, 2024. At no time did the BOS advise the GBOE, nor the Acting chair Hirsh that they would be meeting to fill the vacancy the following day. The BOS also did not share with the GBOE the revised agenda noting the new 3:00pm start time.”
The counterclaim says that at about 9:30am on the morning of Oct 21, 2024, the school board became aware of the special Selectmen meeting scheduled to start at 9:00am the following day and that the newly scheduled meeting would prevent the school board from exercising its statutory right to vote on the vacancy, as planned on Oct 23, 2024.
They say that given that Selectmen meeting was scheduled for 9:00am the following day, there was no time to schedule a meeting within 24 hours.
“Therefore the Board was forced to convene an emergency meeting via Zoom for 11:30am on the morning of Oct 21, 2024. The emergency meeting was necessary to prevent the Selectmen from thwarting the GBOE’s statutory right to fill vacancies on the GBOE and to prevent the BOS from negating the many hours of board work seeking candidates and subsequently interviewing and evaluating the relative merits of the six candidates who had stepped forward to fill the GBOE vacancy.” (page 47)
The defendants note they had quorum at the Oct 21, 2024 emergency meeting where Ms Behette was nominated and voted onto the board, that minutes were filed with the town Clerk in a timely manner, and Behette was sworn in by Justice of the Peace Lin Lavery on Oct 23, 2024.
They say on the morning of Oct 22, 2024, attorney Michelle Laubin on their behalf, told the Selectmen that because the vacancy was filled, appointing another candidate would violate the town charter, but that afternoon at 3:00pm the Selectmen met and “purported to appoint Mr. Paul Cappiali to fill the then nonexistent vacancy,” which they said was “unlawful, without any legal effect, and outside the scope of authority of the BOS.”
Legal Fees
On page 53, defendants’ counterclaim says that by statute a school board can be sued and has the right to file suit, and therefore has the right to legal counsel, and in the 2024-25 school year, the approved budget had two line items totaling $250,000 for the school board to hire attorneys.
They say the Town of Greenwich has unlawfully refused to release the school board’s appropriated budgetary funds to pay for legal representation.
On page 54 of the counterclaim they say, “The town in effect seeks to force the GBOE to capitulate to its unlawful attempts to appoint a member of the GBOE and improperly influence the GBOE’s actions by depriving the GBOE of the financial means to defend itself…”
Page 56 says, while the Greenwich Town Attorney has refused to release the appropriated budgetary funds for the school board, she approved the payment of the legal fees of the law firm representing the Town of Greenwich.
The counterclaim goes on to say the Town Attorney has claimed she has lack authority to approve legal fees for the school board because of a conflict of interest, and refuses to delegate that authority to the Board of Estimate and Taxation to release the school board’s appropriated budgetary funds for legal services.
See also:
BOE Democrats, DTC Respond to Preliminary FOI Commission Ruling on 2024 “BOE Emergency Meeting”
Oct 14, 2025
Greenwich Sues Greenwich: First Selectman Camillo vs School Board Democrats Dec 9, 2024
Ongoing BOE Legal Matter Casts a Pall over Election of Officers Nov 22, 2024
BOE Vote to Ratify Earlier Vote on New Member, Jen Behette Oct 24, 2024
BOE Democratic Caucus: First Selectman’s Actions on BOE Vacancy Are a Power Grab Oct 24, 2024
Camillo Statement on Democratic BOE Members’ Actions Oct 24, 2024
Selectmen Vote 2-0-1 to Appoint Cappiali to BOE Vacancy; Town and BOE to Litigate Oct 23, 2024
Emergency Greenwich Board of Education Meeting Ushers in 8th Member Oct 21, 2024
Greenwich Board of Education Chair Resigns Citing Out-of-Town Move July 21, 2024