A December bench trial has been scheduled to decide the $1.9 million lawsuit between West Bath and Regional School Unit 1 and the school district’s member towns.

Leading up to the trial, a schedule was outlined on Tuesday at a conference for the attorneys representing parties to the case being heard by Justice Andrew M. Horton at the Sagadahoc County Superior Court.

The official order has not been issued from the court yet, said West Bath’s attorney Sally Daggett of Jensen Baird Gardner & Henry, but a trial has been set for the week of Dec. 1-5, which will involve Bath, RSU 1 and West Bath.

Filed in October 2012, the suit claims that West Bath is owed $1.9 million that it was overcharged by the RSU during the span of four years, while member towns Arrowsic, Bath and Woolwich were undercharged.

Prior to Sept. 15, the parties are required to go to mediation, said Daggett, after which they may be sent to a judicial settlement conference in October.

“Bath wanted to continue discovery before mediation and the judge has allowed that,” said Daggett, noting that to date only one deposition — that of former RSU 1 superintendent William Shuttleworth — has been given.

“Now both parties may take up to five depositions each,” she said, “and we are in the process of trying to decide who to depose and when.”

Bath’s attorney, David Ray of Bernstein Shur, was not present at the Tuesday conference, which was attended by an associate.

“Mediation will be an effort to resolve these issues before they go to trial,” said Ray, “but I don’t think anyone is confident that that effort will be successful.”

Discovery will continue up to Nov. 1, said Daggett, during which time West Bath can take up to 12 depositions and RSU 1 and Bath can take a combined total of 15 depositions.

“We don’t have a definite list,” or persons who may be deposed, said Ray. “All of those who were involved in the underlying events are fair game so we can determine who knew what when,” he said, adding that generating the list of depositions will be “undertaken cooperatively between counsels” for RSU 1 and Bath.

RSU 1 attorney Melissa Hewey of Drummond Woodsum was not immediately available for comment.

Arrowsic and Woolwich have been excused from further proceedings, said Arrowsic selectman Bill Savedoff, though the municipalities have not been dismissed from the case.

In a partial summary judgment rendered in June, Justice Horton ruled in favor of West Bath on Count 1 of the case, finding that West Bath had been overcharged $1.9 million when the RSU used the wrong cost-sharing formula for town assessments from 2008 through 2011.

Woolwich and Arrowsic claimed that they had no knowledge that the approved cost-sharing formula was changed by the RSU, and therefore “neither of those towns was in a better position than West Bath to know of the mistake, or to rectify it,” the partial summary judgment stated.

“The judge agreed with the arguments made by Arrowsic and Woolwich that, as municipalities, we knew no more than West Bath about the cost allocation decisions,” said Savedoff in a public statement. “As a result, we cannot be held directly responsible for compensating West Bath.”

As no further discovery is required of Arrowsic or Woolwich at this point, Justice Horton offered to excuse the towns’ attorneys from appearing at future hearings, said Savedoff, however, “Arrowsic and Woolwich will technically remain in the case until it is over because he had declared that the wrong formula was used and that declaration was directed at all the parties to the case.”

To date, Arrowsic has used $25,000 of the $30,000 in legal fees the town was authorized to expend in two special town meetings.

“Just in terms of legal expenses it’s great,” said Savedoff, noting that the town will still retain an attorney to monitor the case throughout its duration, but he does not anticipate that cost exceeding the current appropriation.

“That task could be limited to participating in the deposition of Arrowsic residents,” said Savedoff, “and beyond that to reading and processing the filings that will continue.”

No determination has been made at this point if West Bath is entitled to restitution from RSU 1 or Bath.

While the partial summary judgment ruled that West Bath had not proven it was entitled to restitution from Arrowsic and Woolwich, Savedoff said that it is possible the towns could be “liable indirectly as members of RSU 1” to contribute to restitution as the RSU has no taxing authority.

“The only way (the RSU) has of allocating costs is through the current student assessment,” said Savedoff, and if the RSU has to pay that amount back, it may do so by dividing that cost between the assessments to the towns.

“We will only know for certain when the case is fully settled,” he said.

The RSU is a “conduit,” said Daggett. “They are members of the RSU and if the RSU has to pay money back, that could pass through to Woolwich and Arrowsic as well,” she said.

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The lawsuit

FILED IN OCTOBER 2012, the suit claims that West Bath is owed $1.9 million that it was overcharged by the RSU during the span of four years, while member towns Arrowsic, Bath and Woolwich were undercharged.

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