After years of contentious back and forth between the mother of two and the school, things came to a head in May as Fitzgibbon and the defendants — Head of School Josh Morgan and members of the school’s governing board — had their case heard in Haywood County Superior Court, where Fitzgibbon ultimately received the vindication she’d so ardently sought as late last month, when Judge Sherri Elliott issued a sweeping order in her favor. While Fitzgibbon, who was once a member of Shining Rock’s board, has celebrated the victory, on the other side, Morgan has expressed concern that Elliott’s order opens the door for any person who wishes to hurt him or the school to do so with impunity.

The suit that led to the trial, filed by Fitzgibbon in 2023, alleged that Morgan and board members violated state law by demanding excessive payments for fulfilment of public records requests tied to her attempts to learn more about the school’s disciplinary procedures and training requirements in light of the incident with her son. The school has consistently claimed that Fitzgibbon’s 23 records requests were intentionally cumbersome.

Since 2022 when Fitzgibbon began requesting records, she has also made a host of public allegations against Morgan and the board, including some that imply he and others acted immorally or even illegally. In response, the defendants countersued her for defamation, saying her scathing statements on social media and in news articles were knowingly false and meant to cause harm.

Defense attorney Andy Santaniello said during his opening statement to Elliott that Fitzgibbon had become “enraged” and went on a “crusade” to get Morgan fired, adding that she had previously become “so disruptive” that she was removed from the board. 

Elliott, who was visiting from the judicial district made up of Burke, Caldwell and Catawba counties, published an order on June 30 in favor of Fitzgibbon that dismissed the defamation claims while also requiring Shining Rock to provide the records she’d requested and change its public records policy.

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“When my attorney first told me the news, I felt very relieved,” Fitzgibbon said. “I was overwhelmed with emotion when I read the order, and I felt grateful that Judge Elliott saw the situation for what it was and ruled accordingly.”

BACKGROUND

Shining Rock opened its doors in Haywood County in the fall of 2015 and moved into its new building off Russ Avenue in the fall of 2021. While it’s a charter school, under state law, it still receives taxpayer dollars for all operations.

Morgan is a Haywood County native and Pisgah High School graduate. He earned his bachelor’s degree in middle school education from Appalachian State University, a master’s degree in elementary and middle school administration from Western Carolina University and a second advanced degree in secondary school administration also from WCU.

Josh Morgan (left) takes questions on the stand from defense attorney Andy Santaniello. Kyle Perrotti photo

Josh Morgan (left) takes questions on the stand from defense attorney Andy Santaniello. Kyle Perrotti photo

He began teaching 2000 and eventually became assistant principal at T.C. Roberson High School in Buncombe County before serving in the same role at Hazelwood and Clyde elementary schools in Haywood. He would go on to serve as a principal at schools in Haywood County and in South Carolina.

Morgan was hired at Shining Rock in August 2018 as assistant principal. In February 2019, former Head of School Nathan Duncan was fired  following sexual harassment allegations. Morgan was immediately named interim head of school and secured the permanent job in June 2019.

Before he was even named head of school, grievances were filed against Morgan  related to his conduct around children. Parents who filed the grievances told The Smoky Mountain News at the time that Morgan was a bully who intimidated the kids. Shining Rock’s board defended Morgan  and officially dismissed the grievances after an internal investigation was conducted by Shining Rock’s board-appointed attorney, David Hostetler. Likewise, after the parents filed a report with the Waynesville Police Department seeking criminal charges against Morgan, the district attorney’s office declined to prosecute.

Rebecca Fitzgibbon was a Shining Rock Board Member for a year and a half until just months after her son was placed in the police car, when her relationship with others on the board soured and she was voted off. After the incident with her son, she began bombarding the school administrators, board members and even teachers with emails. In March 2023, Shining Rock pressed cyberstalking charges against Fitzgibbon . According to the criminal summons, Fitzgibbon emailed Shining Rock staff “repeatedly for the purpose of harassing” Morgan and others.

Those charges were dismissed  a few months later, but Fitzgibbon was banned from campus except for dropping off or picking up her children.

The conflict between Fitzgibbon and the school began in earnest a couple of months before she was kicked off the board. 

On Jan. 14, 2022, Fitzgibbon’s son was disrupting Jody Thornton’s class. Thornton, who appeared in front of Elliott under subpoena, said the child had been causing trouble all week. She threatened to get Morgan, and she said that when the boy kept going, she made good on that threat.

“It didn’t matter at that point what I did; he wasn’t going to listen to me,” she said.

According to the teacher, Morgan said to the child that she could decide whether to give him a chance or if he should “take a ride” with the Student Resource Officer, Bryan Reeves. Thornton thought perhaps Reeves would drive him around the school to conjure up enough fear to teach him a lesson.

At that time, Reeves, who is employed by the Waynesville Police Department, was in his patrol vehicle typing up a report. Morgan put the child in the backseat. According to Reeves’ testimony, the principal said that the child had perhaps “earned a trip to DJJ” — DJJ meaning Department of Juvenile Justice.

Reeves claimed it began raining lightly — lightning was apparently a concern — and the kid needed somewhere to sit, so they put him in the car. Fitzgibbon’s attorney, Clifton Williams, asked Reeves if he thought it was appropriate to put a child in the backseat of a police car.

“It was the best option we had at the time,” he said.

Although Reeves said the decision was made because of the weather, Williams asked if the move was also a sort of “scared straight” tactic to give him a dose of hard reality without having to affect an arrest.

Shining Rock’s Student Resource Officer, Bryan Reeves, took the stand at the trial. Kyle Perrotti photo

“I don’t think so, no,” Reeves said, adding that he would do the same thing if he was in the exact same position again.  

While Fitzgibbon’s son being placed in the police car feels egregious and was in some ways an inciting incident, she said she didn’t begin proactively seeking answers until after she was removed from the board a couple of months later. Around that time, as she dug more into Morgan and the school, she heard stories from other parents that together painted Morgan as a bully with a pattern of troublesome behavior. She claimed that he would make high-pitched noises in the presence of autistic students with the knowledge that it made them uncomfortable, withheld lunch from children and even ate in front of kids whose lunches were withheld.

A MATTER OF RECORDS

Williams, who before entering private practice worked for the University of North Carolina system and through that has extensive experience in public records law, introduced into evidence relevant policies from several institutions and entities, including UNC-Asheville, the Town of Waynesville and Haywood County Schools. They all said the same thing: a person requesting records can be charged $18 per hour for excessive requests over four hours, based on the average pay for the clerk who handles records requests. They can also charge for the actual cost of paper copies, which is 5 cents per page.

Morgan told Williams during questioning that Shining Rock’s current public records policy, approved in 2022, was adopted to deter “troublesome public records requests.”

Along with Fitzgibbon, SMN Politics Editor Cory Vaillancourt has made several public requests since the paper hired him in May 2016. Vaillancourt testified that for a while the requests were answered promptly and without fee.

“But after that, something changed,” he said.

When Vaillancourt requested documents related to the construction of the new school along Russ Avenue near Lake Junaluska — including correspondence between board members, meeting minutes, the school’s communications policy and Hostetler’s contract, after a week, the school said the records would be available upon payment under the newly launched fee schedule. For the next month or so, Vaillancourt said he didn’t hear from the school, despite several attempts to receive an update. Then, a letter was sent to him from the school requesting over $1,500 for the records. SMN didn’t pay the fee, and Vaillancourt never received those records.

The key witness for the public records portion of the trial was Katy Ridenour, who joined the court remotely from her home in Virginia. Ridenour is a consultant who works with charter schools. Shining Rock pays Ridenour $195 dollars per hour, and she is contracted to work 10 hours per month with the school. One of her duties is to facilitate public records requests. Santaniello asked Ridenour what happens if all her time is spent on such requests.

“Then I don’t have time to support Mr. Morgan and his concerns in leading the school or work sessions or retreats or anything else,” she said.

Ridenour recalled fielding Fitzgibbon’s public records requests, which she said numbered 23 between May 26, 2022, and Nov. 29, 2023. She worked with Hostetler, whom the school pays $300 per hour, whenever there were questions regarding whether something in a record is confidential or not, and she consulted with an outside IT expert to determine how to obtain the voluminous correspondences to or from any school email address that mentions Fitzgibbon’s name, which was included in one of her requests.

“His words were that would require me to go into every past and current staff and board members’ addresses individually and search for Rebecca Fitzgibbon and her son, and that would take days upon days, probably weeks,” Ridenour said.

Ridenour recalled Vaillancourt’s requests, as well, noting that once a backlog developed, the board revisited the school’s policies.

“Mr. Vaillancourt’s requests were where that model started,” she said.

During his testimony, Morgan said that he believed Vaillancourt was abusing the right to request public records.

“I’ve acted in good faith to fulfill his requests and I’m not really sure what more he’s wanting other than to simply use the public records law as a nuisance,” he said.
The new policy stated that any request that would take longer than 30 minutes to answer is “extensive” and would require an additional fee.

During his cross-examination of Ridenour, Williams waded into a discussion about the specific phrasing of public records laws, citing relevant statute that says, “no public agency shall charge a fee for an uncertified copy of a public record that exceeds the actual cost to the public agency of making the copy.” Williams questioned why it is that the cost of determining whether confidential material is comingled with nonconfidential material, when turned over to Hostetler for $300 per hour, is passed along to the person or entity requesting the documents.

“Was it your understanding that because protocol was adopted that it was OK from legal standpoint?” Williams asked.

“I assumed the lawyer’s advice was legal,” Ridenour said.

“Is needing to consult with counsel a reason to charge someone to obtain public records?” Williams fired back.

“It seems someone has to bear that cost,” Ridenour replied. “And it’s not like public charter schools have a lot of money.”

THE DEFAMATION CLAIM

Williams introduced several pieces of evidence he used to argue against the defamation countersuit, including emails from Fitzgibbon to the North Carolina Department of Public Instruction complaining about Shining Rock and Morgan .

“I believe this man abuses children,” one email read.

Testimony and evidence also laid out Shining Rock’s grievance process, which begins with an “informal” meeting with Morgan. If a parent wishes to continue, they can file a formal grievance. Fitzgibbon did this and met with former board member Frank Lay — who was both a defendant and a witness in this case — for an interview, then subsequently rescinded her grievance. On March 25, 2022, she was removed from the board in what she claims was an illegal closed meeting. Over the next couple of years, she continued to bash Morgan on social media and, as mentioned during the trial, even in an SMN story.

Even after her removal from the board, Fitzgibbon kept her kids in school for over a year, something that Santaniello found curious — if she had such an issue with Shining Rock, why keep the kids there?

Williams countered by referring to the exhibits, noting that while Santaniello was painting Ftizgibbon as a vindictive, litigious woman who’d made defamatory statements, her correspondences and formal grievances filed with the school and DPI proved that she wished to handle things at the lowest level possible throughout the process. In addition, Williams went through statements Fitzgibbon had made that accused Morgan of being abusive and asked her if she believed she’d communicated anything that was false.

“Was your belief that these complaints were true?” he asked.

“Yes,” she replied.

Several former Shining Rock teachers and staff testified to Fitzgibbon’s claim that Morgan is a bully, telling stories of children being traumatized by Morgan and Reeves.

One of the most compelling witnesses was Sharon Breedlove, a teacher with 27 years of experience, who worked at Shining Rock from 2022 through 2024. While much of the testimony surrounded Morgan’s behavior with students, Breedlove also talked about how the principal treated his staff, noting that if a person isn’t a member of Morgan’s “clique,” they’re likely to receive hostile treatment.

Breedlove recalled occasions where she saw Morgan “intimidating” students. After one incident when Reeves led an unruly student to the office, he used a “come along” hold and broke the child’s wrist. Around that time, Breedlove said she’d heard that a girl was touched inappropriately by a male student during an afterschool program and that the incident was never addressed by the school administration.

After that, Breedlove filed reports with the Department of Social Services and the Waynesville Police Department to make her concerns about Morgan and Reeves known. Breedlove said that the next day, she went to use an app that connects teachers with parents but had been locked out.

“That’s how I knew he was aware I had filed a DSS report,” Breedlove said.

Morgan called Breedlove to his office, and when she figured the school was going to let her go, she quit. He told her she could come back over the weekend and retrieve the personal items left in the classroom.

“He refused to even let me get my purse out of the classroom,” she said, adding that when she did come by to pick up her items, some were “intentionally broken,” something Morgan denied when he took the stand.

Shining Rock’s Founding Board Chair Tara Keilberg also took the stand. After her time on the board, Keilberg also had a stint as the director of admissions and finance. She worked only briefly with Morgan after he was hired. She said she found him to be cynical and that he had a negative view of “higher-needs” families. She also thought he took enjoyment in making fun of others and claimed that one day when Fitzgibbon’s son was in Morgan’s office, he called the child a “level-five turd.” 

“About two months working with Mr. Morgan was enough,” Keilberg said.

Shining Rock Head of School Josh Morgan testified on two separate days during the trial. Kyle Perrotti photo

During his cross-examination of Breedlove, Keilberg and the other teachers who spoke negatively on Morgan, Santaniello pushed the witnesses, casting each one as a person with an ax to grind because their work was unsatisfactory and Morgan had either disciplined or fired them. Morgan also took the stand a second time before the attorneys’ closing statements to provide direct testimony contradicting what they had said.

“She was an incredibly poor teammate,” Morgan said of Breedlove. “She was not always the most stable in terms of how some of her interactions and things would be.”

A couple of times during his testimony, Morgan lamented the “mess” he said he’d inherited when he became head of school after Duncan. One of those “messes,” he said, was Keilberg’s job performance.

In addition, the current teachers who testified said Morgan is a good head of school who never crosses that line.

“Mr. Morgan is hands-down one of the best bosses I’ve ever had,” teacher Ashley Price, whom the defense called as a witness, told Elliott.

Thornton, Fitzgibbon’s son’s former teacher, said that while she was surprised that Morgan put Fitzgibbon’s son in the back of a police car, she didn’t think it was wrong.

“If the child learns a lesson from it, I don’t think what Mr. morgan did was wrong,” she said.

ELLIOTT’S ORDER

During his closing statement, Santaniello said that for Fitzgibbon to “survive” the defamation counterclaim, she would have to prove that every statement she made was true. She didn’t even come close, he said, before reiterating that the witnesses who made claims against Morgan that supported Fitzgibbon’s allegations of abuse and bullying were either biased or basing their accusations on hearsay.

Santaniello said that while the statute Williams referenced during his cross-examination of Ridenour does stipulate that an additional fee can’t be imposed for determining what’s confidential and what’s not, there is a part that says a fee can be imposed if the request is “such as to require the extensive use of information technology resources or extensive clerical or supervisory systems by personnel of the agency involved or producing the record that media requests results in greater use of information technology resources.”

“There’s nothing prohibited in statute for what my client was doing,” he said.

Williams, who offered his closing statement after Santaniello, rebutted Santaniello’s claims regarding defamation. Because Morgan is a public figure, the bar for defamation is higher. Williams cited the landmark 1964 Supreme Court Case New York Times v. Sullivan that established the “actual malice” standard, which means a defendant’s statements must be made either with knowledge of their falsity or extreme recklessness. Along with noting that Fitzgibbon made an honest effort to find answers and accountability through the proper channels, Williams highlighted the fact that the court could know based on testimony that “for certain” some people have had a problem with how Morgan does his job. Williams argued that this lends credence to the claim that Fitzgibbon believed her claims to be true.

“Your Honor, the legal graveyard, that landscape is littered with defamation lawsuits filed by public officials who were unhappy with criticism,” he said.

Elliott requested that both Williams and Santaniello send her drafts of potential orders based on what they were seeking — basically the equivalent of what would be an ideally favorable jury verdict. Taking those into consideration, Elliott published her order, which found in Fitzgibbon’s favor across the board.

“The information that Fitzgibbon developed came from sources in the community that Fitzgibbon found reputable, including herself, her own children, current and former Shining Rock employees and officials (including some of the named Defendants), and the parents or guardians of current and former Shining Rock students,” the order reads, noting also that throughout her inquiry, Fitzgibbon reported her concerns to “numerous local and state officials.”

According to the order, while prior to 2018, Vaillancourt’s requests were answered promptly and without charge, once Morgan became head of school, it began assessing fees, including one for over $1,500 that SMN refused to pay.

“As a result, Vaillancourt’s and his employer’s reporting on Shining Rock was significantly reduced because they could not obtain public records from Shining Rock to support their reporting,” the order reads.

Elliott concluded that public records must be provided upon request for free or at “minimal cost,” meaning the actual cost of reproducing the record, contrary to the practices Shining Rock had implemented.

“Shining Rock may not charge a fee for an uncertified copy of a public record that exceeds the actual cost to Shining Rock of making the copy,” the order reads. “‘Actual cost’ is limited to Shining Rock’s direct, chargeable costs related to the reproduction of a public record as determined by generally accepted accounting principles and does not include costs that would have been incurred by Shining Rock if a request to reproduce a public record had not been made.”

“If it was necessary for Shining Rock to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records in response to public records requests, then Shining Rock had to bear the cost of such separation,” the order later reads.

Elliott determined that the school had no legal justification for failing to disclose at least some of the public records it withheld from Fitzgibbon. Similarly, there was no justification to charge Fitzgibbon for the cost of separating confidential and nonconfidential information.

“Shining Rock’s approach to charging for public records, and, later its formalized public records procedure, either on its face or as applied to Fitzgibbon and Vaillancourt, was an improper use of governmental authority to stop or inhibit the public from accessing public records and government information,” the order reads.

The public records order wasn’t Fitzgibbon’s only win. Elliott ruled that Santaniello failed to prove that the information published or shared by Fitzgibbon that served as the basis for the defamation suit was false and therefore ruled in her favor.

Elliott ordered Shining Rock to produce the public records Fitzgibbon requested on multiple dates. She also filed an injunction enjoining the defendants from using or applying any public records procedures in the future that violate the law as determined in her ruling, including pending requests such as Fitzgibbon’s and Vaillancourt’s.

There is one more item for Elliott to consider before this case can be closed. On July 2, Williams filed a motion for the defendants to cover the plaintiff’s attorney fees, which total about $113,000, and court costs, which total about $3,200. Elliott has yet to rule on that motion.

LOOKING BACK, LOOKING FORWARD

Like Fitzgibbon, Morgan told SMN after Elliott’s order that this experience, from the grievances filed while he was the interim head of school up through the recent trial, have been exhausting for him and his family. Much of the scrutiny from members of the public and witnesses during the trial was a direct result of Shining Rock’s defamation countersuit. Morgan said pursuing that suit was the board’s decision, and it was made largely in part as a response to the voluminous claims Fitzgibbon laid out in her original suit attempting to obtain the records, including allegations that Morgan had forcibly dragged children out of classes and even directing Reeves to put some in handcuffs.

“That should be a three-page filing, right?” Morgan said. “But she made a point to include all of her discontents in the initial filing, and that’s what triggered the board’s action on filing the defamation piece.”

“To marginalize me was always her intent,” he added.

Fitzgibbon and Williams firmly disagree. Williams said this outcome serves as vindication for his client in her quest to access public records while also serving as an affirmation that there was no “actual malice” in her public statements regarding the school and Morgan.

Following Elliott’s ruling, Shining Rock issued a statement saying it respects the judicial process and will follow the order accordingly.

“The court’s decision clarifies important aspects of public records law that will benefit not only our school but other educational institutions throughout the state,” the statement reads. “We are committed to implementing the court’s directives within the specified timeframe and will work diligently to ensure full compliance with all public records requirements moving forward.”

Williams concurred with the school’s observation that Elliott’s order provides guidance that all public entities should consider, adding that he hopes positive change will come to Shining Rock.

But because charter schools aren’t beholden to county residents in the same way as public schools since they lack any elected leadership, it’s up to Morgan and the board to take the initiative. However, that very structure which enabled the school to create a heavy-handed records policy without oversight appeals to many parents who see charter schools as unburdened by the additional layers of bureaucracy.

For his part, Morgan isn’t even so sure Elliott’s ruling is a good thing. He believes the trial “established a high threshold” for what qualifies as slandering public officials. He also thinks it opens up the opportunity for people to abuse public records law, applying it punitively to overburden school administration, as he believes Fitzgibbon and Vaillancourt had.

Morgan also voiced frustration with the process he and the board went through while trying to create a public records policy when there hadn’t been much case law around which to shape it. During his closing arguments, Santaniello lamented the fact that he and his clients were likewise trying to craft a defense based on a subject with basically zero precedent.

“We don’t have any guidance from the Court of Appeals or the Supreme Court to tell us how to apply these public records, especially as it comes to the special service charges,” he told Elliott. “I think that is a major detriment to plaintiff in their case, because if we can’t even find with certainty what the law is, it’s going to be very difficult for them, if not impossible, to prove violation of that law.”

Santaniello told SMN that an appeal hasn’t been ruled out.

“We are still looking at it and evaluating it,” he said. “We don’t ever want to make a knee-jerk decision on an appeal.”

“Judge Elliott did a very thorough job and was attentive, so I think we got a very fair trial and a very fair hearing,” he said. “But there are issues of first impression, meaning the legislature didn’t write the law down clearly and the appeals court hasn’t decided on this yet.” 

However, Mike Tadych, a Raleigh attorney who specializes in First Amendment law told SMN in an email that he believed the statute was already clear and that it’s on Shining Rock to now follow the law as written.

“The statute is clear that the agency must bear the cost of separating confidential from non-confidential,” he said in the email.

Regardless of whether an appeal is filed, this whole ordeal provides an opportunity for Shining Rock to reconsider not only its public records procedures but also the student discipline policies that were at the root of Fitzgibbon’s grievances, public complaints and even the civil suit. Morgan claimed that the school has been reviewing behavioral plans and that corresponding drafts are with the school’s board for review, but that’s something he said was happening separate of the trial anyway. To him, the lawsuit was a public records case and nothing else.

When asked whether he’s re-evaluated how he personally deals with students’ discipline, he was reticent but ultimately said no.

“You always have to be seeking a path for redemption and also a way to guide people better,” he said. “I spend a fair amount of time trying to, when kids make bad decisions, get to the root cause of that bad choice, and I feel like what has changed most in my time in education is that it is representing a microcosm of our society.”

Morgan explained what he meant by that statement.

“We’ve become skewed toward individual grievances, and the responsibilities on educators have never been greater,” he said.

Meanwhile, Fitzgibbon said she expects to see change in the way Shining Rock handles public records and she hopes it will reconsider how it handles student discipline and address parents’ concerns. While she isn’t sure what her next step is regarding public records or even a future suit against the school, she said she is ready to take some time to breathe, and to consider the totality of what has transpired over the last several years.

“I maintain, as I always have, that Shining Rock has such great potential; the board just has not figured out how to hire good leadership,” she said. “What I hope is the outcome from this trial is that the board take seriously the grievances that are being sent to them.”