** UPDATED ** Governor Carney Put Forth New Nomination For State Board of Education President

Last weekend, I reported Governor Carney nominated three new State Board of Education members and also nominated existing member Dr. Audrey Noble for President of the board.  Due to health reason, Noble asked to be withdrawn from consideration.  Instead, one of the three new State Board members Carney nominated was confirmed as the President yesterday.

Whitney Townsend Sweeney is the new President of the State Board of Education.  As I reported the other day, Sweeney is an Investment Director at Schroders.  She is a University of Delaware graduate and served on the Delaware Financial Literacy Institute.  I don’t see much in terms of education background with Sweeney based on her LinkedIn profile.  This will be interesting to see.

She will replace outgoing State Board President Dr. Dennis Loftus who resigned this month.  As well, the two other nominees were confirmed by the Delaware Senate yesterday.  They are former State Rep. Vincent Lofink and Candice Fifer.  I look forward to meeting all three.

The General Assembly website does not indicate when Noble’s nomination for State Board President was withdrawn but shows it was introduced on 6/22/2018.

Advertisements

Governor Carney’s Three Nominations For State Board of Education & Who Will Become President?

Governor Carney presented three nominations for the State Board of Education on Friday.  And another State Board member has been nominated to replace Dr. Dennis Loftus as the President of the board.  Who are the nominees?  One of them is a former legislator! Continue reading

Legislation Aims To Have Teacher Of The Year & A Delaware Student On The State Board of Education

How did I miss this one?  It was filed last week!  Not only would this add two new members to the State Board of Education but could also make the State Board of Education a wandering event!

House Bill #455, filed last week by State Rep. Stephanie Bolden and Senator Jack Walsh, comes from the Joint Legislative Oversight and Sunset Committee.  The two new members would be non-voting but it could certainly create lively conversation at these meetings!  It also gives clarity around who the Executive Director reports to and who their employer would be.  The legislation calls for the State Board of Ed to meet in the three different counties which would, by default, cause Delaware Dept. of Education employees to travel with them.  Very interesting bill.

This Act fulfills recommendations made by the Joint Legislative Oversight and Sunset Committee by doing the following: (1) Establishing 2 new, nonvoting members to serve on the State Board of Education (“Board”). The new members are a former Delaware Teacher of the Year and a Delaware 11th or 12th grade student. (2) Defining the duties of the Board’s Executive Director. (3) Clarifying that the Executive Director is selected by the Board; is an employee of the Department of Education, subject to all of the Department’s employment policies and procedures; but serves at the pleasure of the Board. (4) Requiring the Board to rotate its meetings among the 3 counties of this State in such a way to facilitate parents’, teachers’, and other community members’ attendance. (5) Establishing the circumstances under which a Board member may be removed, using language standard to boards and commissions in this State. (6) Requiring the Board to permit public comment on each agenda item prior to voting on the item and in proximity to the time at which the Board discusses the item. An exception is provided if, under Delaware law or Department or Board rules, the item has a formal comment period or a process for making a record in an administrative matter that has closed before the Board’s discussion of the agenda item. Examples of matters that qualify for the exception include charter school applications or formal reviews, amendments to Department of Education and Professional Standards Board regulations, and student appeals. The intent of the exception is to exclude Board actions that are quasi-judicial in nature and therefore not appropriate to open to public comment. This Act also corrects 2 internal references and makes other technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.   

To read the actual legal language of the bill, go here: House Bill 455

As I reported earlier today, Governor Carney will have three nominations for the Delaware Senate to confirm by June 30th which would restore the State Board of Education to their seven members after some unexpected resignations in the past couple of months.  I still think ALL members of the State Board of Education should be publicly elected.

**UPDATED**The Clock Is Ticking For The State Board Of Education

The State Board of Education still has four members.  Which is their quorum amount.  Governor Carney, with ten days left in the 149th General Assembly, has not put forth ANY nominations for replacements.  Delaware State Code mandates four members on the State Board.  If Carney does not put forth nominations until after the General Assembly goes into recess from July 1st until mid-January 2019, he could order the Delaware Senate back into session to confirm nominations.  That isn’t unusual but typically doesn’t happen until October when it does occur.  Which means our State Board of Education is operating at a bare minimum for the next four months.  Which means if just one member doesn’t attend a meeting they can not take action on any item, even approving their minutes.

I have an extreme issue with keeping this body at four members.  Any regulation or appeal the State Board hears would only have four members voting.  One no-show could shut something down very fast.  It is a recipe for disaster.  Simply put, they cannot operate the way they are supposed to.  As an example, what happens if Secretary of Education Susan Bunting decided to put a charter school on formal review for some reason?  The State Board would have to vote on that.  Is four members enough to give that conversation the full weight for a matter that serious?  There is a reason there are seven members.

I was told by Jon Sheehan, Governor Carney’s Education Policy Advisor, the State Board of Education would be restored by June 30th.  So where are the nominations?  Since there are none today, that leaves one last Senate Executive Committee meeting to do this, which would be next Wednesday.  At that point it is the last week of the General Assembly.  I would worry about the quality of the nominations if it is rushed at the last-minute.

Two weeks ago, the Joint Sunset Committee released the State Board of Education from Sunset review.  The only unanswered question is who the State Board’s Executive Director will report to- the State Board, the Delaware Department of Education, or a hybrid of both.  Meanwhile, the deadline for applicants to replace Donna Johnson expired June 9th.  Which means someone will most likely get that job soon.  But will there even be a functional State Board of Education for them to direct?

I still feel as though the State Board of Education should be elected by the people.  Having a Governor hand-pick who he wants on the State Board of Education all but ensures people will get picked who would follow his agendas.  It is something our legislators could change but nobody wants to tick off the Governor.  Many of them agree but lack the stones to actually do it.  I say have an elected State Board of Education and get rid of “Secretary-only Regulations”.  Those are the ones, like Regulation 225, that the State Board of Education does not vote on.  Which is preposterous in my opinion.

Updated, 3:37pm: I spoke with Jon Sheehan a short time ago who assured me that three nominations will be introduced next week and he anticipates a full State Board of Education by June 30th.

Breaking News: State Board of Education President Dr. Dennis Loftus Resigning After A Year Of Service

A year ago, Governor Carney nominated Dr. Dennis Loftus to take over as State Board of Education President.  Replacing Dr. Teri Quinn Gray, Loftus served in the role for a year.  At the end of this month, sources tell me Dr. Loftus is resigning from the position.

No nomination for his replacement has been announced at this point.  As well, even though Donna Johnson officially resigned a couple of weeks ago, no replacement has been announced for the Executive Director role for the State Board of Education.  The State Board is still going through sunset review with that committee at Legislative Hall.

The State Board underwent many changes in the past year with four new members (including Loftus) and a now vacant role of Executive Director.  It doesn’t look like that facelift is going to stop any time soon with the resignations of their Board President and their Executive Director.  The State Board of Education is a different entity than the Delaware Department of Education.  Any State Board members would be nominated by the Governor and then have to go through a confirmation process with the Delaware Senate.  The only exception to that rule is the President which is picked solely by the Governor but there is no designated term for that role and serves at the pleasure of the Governor.  In addition, the State Board themselves would pick a new Executive Director.

What is the reason for this massive amount of turnover?  In January long-time board member Pat Heffernan resigned unexpectedly after an explosive board meeting about the diploma bill.  Heffernan was deeply opposed to the legislation which would do away with certificates of performance or attendance for the most severe cognitively-challenged students.  Governor Carney signed the bill last month.  Other new members came about through prior board members ending their term.  But to have the President of the State Board resign after less than a year says something!

State Board of Education Has A New Member

Either I fell asleep at the wheel or this happened very fast, but the Delaware State Board of Education has a new board member.  This new person replaces State Board member Patrick Heffernan. Continue reading

Highlights From The January State Board of Education Meeting

Aside from the controversial Special Education Strategic Plan presentation and Delaware Academy of Public Safety & Security going under formal review, what else happened at the January State Board of Education meeting?  This is what goes out to legislators and all those important education folks in the state!

January State Board Meeting Highlights

The State Board of Education held its Regular Monthly Board Meeting on Thursday, January 18, 2018 at 5:00 p.m.

All materials and presentations from the meeting can be accessed on the online meeting platform posted within each month’s agenda as posted on our website (www.destateboarded.k12.de.us ).

  • Here is a direct link to the agenda complete with links and attached documents related to presentations and other items before the Board:  SBE Monthly Meeting Agenda

The audio recording from the meeting is now posted on the State Board website.  An index of the recording with live links by section is copied below.

 

·         Board President, Dr. Dennis Loftus,  discussed his attendance at the Governor’s State of the State address earlier in the day and provided a recap of the key points involving education.  The Executive Director presented her report which included discussion of the latest publication by NASBE which focuses on Early Learning. A link to the publication as well as a few other articles regarding accountability plans across all 50 states according to ESSA plans and an interesting approach to chronic absenteeism. Her posted report called “News Updates and Information” is provided monthly.  There will soon be a link added to the home page for easier access to these reports and local and national articles related to education issues which are provided for review by the Board and public. Ms. Johnson then updated the Board on the work related to the Literacy Campaign and highlighted the upcoming meetings for the steering committee and subcommittees of the Campaign for Grade Level Reading.

·         Secretary Bunting provided a comprehensive report to the Board which included details about several school visits and opportunities to engage with members of the business community and other policy leaders,  meetings with school administrators, educators, and students in which she had been involved throughout the month.  These visits included meeting with the School District Consolidation Task Force Academic and Student Needs Committee where they discussed the state’s EL Strategic Plan. She also had the opportunity to recognize the outstanding achievement of 4 schools for Continued Excellence and identified 15 as Recognition Schools. Recognition Schools receive a banner to display in their school as well as $8,000 to further advance learning at their schools. She highlighted her involvement at the P-20 Council, Governor’s Cabinet meeting, Family Service Council, and the G.E.A.R meeting.

·         The Board received a presentation from the 2018 DE State Teacher of the Year, Virginia Forcucci.  Following her presentation and discussion with the Board they honored her with the SBE Award of Excellence.

·         The Board received a presentation on the Special Education Strategic Plan from the co-chairs of the Special Education Strategic Plan Advisory Council, Dr. Michele Marinucci and Bill Doolittle. Board members discussed the development of the plan and asked questions regarding the goals and metrics within the plan. Additional information and resources from the presentation were provided on the agenda page for this item.

·         Department Regulations

o    Regulation 925: Children with Disabilities Subpart D, Evaluations, Eligibility Determination, Individualized Education Programs  was presented for final action.  There was discussion regarding the comments received from the GACEC and Statewide Disabilities Council as well as the fact that this change was only addressing one aspect of the regulation to align with federal requirements.  The Board was informed that a broader group of stakeholders are currently working on revisions to further update the rest of the regulation and that this regulation may be before them again with more comprehensive changes in the near future. A motion to approve the regulation as presented for final order was made by Mrs. Rutt and seconded by Dr. Whittaker. The motion passed unanimously by voice vote with one abstention (Mr. Rushdan, who was just confirmed to the Board the prior day and not a part of the prior month’s discussion of the regulation).

o   Regulation 501: State Content standards  was presented for final action. The amendments included the addition of statewide K-12 Financial Literacy and Computer Science standards.  The public comment received as well as feedback received through the community engagement sessions held by the Department was shared with the Board. There was discussion regarding the date in regulation for adoption and how that was different from the full implementation date of these standards to be integrated and aligned with curriculum.  It was explained that the date in regulation is the date that the standards would officially become the state content standards and that the implementation of those standards into professional development for teachers and integrated and aligned with curriculum would follow a similar timeline trajectory has was used for the Next Generation Science standards.  A motion to approve the regulation as presented for final order was made by Mr. Heffernan and seconded by Mrs. Rutt. The motion passed unanimously by voice vote with one abstention (Mr. Rushdan, who was just confirmed to the Board the prior day and not a part of the prior month’s discussion of the regulation).

o   Following the approval of Regulation 501, the Board took a moment to thank Mr. Michael Watson, Chief Academic Officer, for his many contributions to improving education for children in the state of Delaware.  It had been announced the prior month that this would be his final State Board meeting before leaving the department.  The Board recognized him for his service and awarded him the State Board’s Award of Excellence.

o   Regulation 1008 DIAA Junior High and Middle School Interscholastic Athletics and Regulation 1009 DIAA High School Interscholastic Athletics were presented to the Board for discussion.  These regulations are out for comment during the month of January and will be back before the Board in February for final action.  The DIAA Executive Director and legal counsel addressed questions from the Board members regarding the proposed changes which dealt with Officials organizations and Foreign Exchange and International Students’ eligibility.

·         The Board received public comment from two individuals commending them on the decision to approve regulation 501 and adopt statewide Computer Science standards for Delaware.

·         John Carwell, from the Charter School Office, presented the Department’s request to place Delaware Academy of Public Safety and Security on formal review.

o   At the December 18, 2014 meeting of the State Board of Education, the charter for DAPSS was renewed with the following conditions:

§  1. The school shall attain a rating of “Meets Standard” on the Academic Framework for the 2014-15 school year; and

§  2. The school shall attain a rating of “Meets Standard” on the Financial Framework for the 2014-15 school year.

o   In SY 2014/2015 Delaware implemented a new system of accountability known as the Delaware School Success Framework (DSSF) and was permitted by the U.S. Department of Education to use this school year as the year from which to measure academic achievement and progress.  Due to this waiver, DAPSS was provided an additional year to satisfy its conditions.

o   In SY 2015/2016, Delaware changed the academic assessment for high schools from Smarter Balanced to SAT.  Due to this change in academic assessment, DAPSS was provided an additional year to satisfy its conditions.

o   In SY 2016/2017, DAPSS failed to meet academic standards in three of the four DSSF metrics and showed a decline in both academic achievement and academic growth.

o   As for financial standards, in SY 2014/2015, SY 2015/2016, and SY 2016/2017, DAPSS failed to meet financial standards.

o   In 2015-2016, DAPSS was approved for a modification to decrease enrollment.  Despite this decrease, the school did not meet the 80% requirement for enrollment by May 1st for SY 2017-2018 enrolling only 77% of its projected population.   As of September 30, 2017, DAPSS enrolled 228 of their projected 340 students or 67% of their approved enrollment.   Since September 30, 2017, DAPSS’s enrollment has again declined.  The school currently has 217 students enrolled.

o   This is the third year that the school has shown a decline in enrollment going from 303 students in SY 2015/2016 to 217 students SY2017/2018.  With a 2018 graduating class of 47 students, 49 choice applications, and one withdrawal at the time of this report, it is doubtful that DAPSS will meet the Financial Framework standard this school year.

o   After considering these potential violations of its charter, the Department as approving authority, has determined that DAPSS should be submitted to formal review to determine whether the school is violating its charter and whether there are grounds for remedial measures.  The Department is seeking the assent of the Secretary and the State Board for this action.

·         The Secretary of Education following this outline of performance and concerns regarding the compliance with their charter stated, “Delaware Academy of Public Safety and Security appears to have failed to meet the conditions of its charter renewal and should have the opportunity for a rigorous review of the school performance. Therefore, as Secretary of Education, I assent to placing Delaware Academy of Public Safety and Security on formal review.   In accordance with 14 Delaware Code Section 511(c), I seek the assent of the State Board of Education to the decision to place Delaware Academy of Public Safety and Security on formal review.”

·         Dr. Loftus asked for a motion to assent to the formal review of the charter for Delaware Academy of Public Safety and Security.  The motion was made by Mrs. Sorenson and seconded by Mr. Heffernan.  After discussion of the Board which involved discussing the process that is included during formal review the motion passed unanimously by voice vote.

·         The charter office also provided in its monthly update, which was posted on the SBE website for information a timeline for the review of the new application received to open a new charter school in Sussex county called Sussex Montessori as well as the major modification requested for Design Lab HS. The links to all of these were provided in the agenda item online.

·         The Professional Standards Board  had no items to bring before the SBE this month since their January meeting was cancelled due to snow.

·         The Board had no one signed up for general public comment

·         The Board received an update from its Deputy Attorney General  regarding two appeal requests that have had their hearing and are currently in the time window in which either party is able to submit responses to the hearing officer’s recommendation. Both of those appeals will come before the Board for action at the February meeting.

The next regular monthly meeting of the State Board is scheduled for

Thursday, February 15, 2018

The meeting will begin at 4:00 p.m. and the Board will enter Executive Session to discuss two disciplinary appeals and then will return to general session at 5:00pm 

January 18, 2018 – Delaware State Board of Education Audio Recordings

Gregory Coverdale Resigned From The State Board of Education & Other State Board News

The Delaware State Board of Education has a vacancy!  Board member Gregory Coverdale resigned before the November State Board meeting and it was announced by President Dennis Loftus at the meeting.  His term expired prior to that but he decided to continue his seat until a replacement was found.  Coverdale was unable to continue serving due to work commitments.  Chances are good Governor John Carney will wait until the new year to nominate Coverdale’s replacement.  The 149th General Assembly returns in mid-January.

The State Board of Ed has their next meeting on December 14th, at 5pm.  The big news will be the charter school renewal-palooza with five schools awaiting the big decision.  Public comment on those renewals ended today.  Academia Antonia Alonso, Early College High School, First State Montessori Academy, Sussex Academy, and Thomas Edison Charter School are all up for renewal.  Delaware Secretary of Education will announce her recommendation for each school and then the State Board will vote on each school.

Other items on the agenda for the State Board meeting include an update on the State Board’s Literacy Campaign, a presentation on the DPAS Annual Report, a Regulation dealing with matching Delaware state code with Federal Law concerning visually impaired students, a Regulation about Financial Literacy and Computer Science standards, a few Regulations from the Professional Standards Board on teacher licensure, and a couple of information items about appeals between students and the Smyrna School District.

What is NOT on the agenda is Regulation 225.  For those who don’t know, the Regulation received 11,000 comments which will take some time for Secretary Bunting to review.  She did thank all who submitted public comment.  This information appeared on the agenda for the meeting on Thursday concerning Regulation 225:

The public comment period for proposed 225 Prohibition of Discrimination Regulation closed on December 4, 2017. The Department received more than 11,000 comments, which deserve careful review before a decision is made. Secretary Bunting is asking the Development Team to reconvene in January to review the comments and make recommendations for changes to the regulation. If substantive changes are made, the regulation will be published in the Register again with another 30-day public comment period before any decision on a final regulation is made.

Secretary Bunting thanks, those who shared their feedback during the formal comment period. All comments received will be posted online so the public, as well as committee members, can review them prior to the January Development Team meeting.

I expect a full house with the charter renewals so if you plan on attending I would get there early!  Good luck to Greg Coverdale in his future endeavors!

Governor Carney’s Nomination For The Next State Board Of Education Member Is…

Yeah, the State Board of Education isn’t going anywhere.  Delaware Governor John Carney nominated the next person and this nomination is being considered by the Senate Executive Committee tomorrow.  Who is it? Continue reading

Delaware State Board Of Education May Survive After All…

Last month, I reported the Delaware State Board of Education was done.  The Delaware Joint Finance Committee took their funding away from them.  Many assumed they were toast.  We were wrong.  It appears the Delaware Department of Education will pick up the tab.  So there will be more State Board of Education meetings in the future.  And there is big news on that front as well.  Starting in July, their meetings will begin at 5pm.  Which means, you know, teachers and educators and working parents can actually go to these meetings.  As well, they will have public comment before each action item (except those which have a formal public comment period, such as charter school stuff and regulations).  Unless the Joint Finance Committee or the legislators deny the funding to DOE to do this.

So what happened?  The changes to Delaware Title 14 would be monstrous.  They would have to change up a lot of things.  While some thought things could change in the epilogue language of the state budget (which I oppose in and of itself), it is not an option.  New laws would have to come out granting the authority to the Delaware DOE.  While those could happen, it would be a headache and a half to get them in play between now and June 30th.

There was talk during the Joint Sunset Review meetings about the State Board taking on one or two new members.  With that being said, and probably because of all the confusion surrounding if they should even exist, Delaware Governor John Carney never nominated anyone to take Jorge Melendez’ place on the board.  So there could be changes to the membership.  I am hoping for some folks with more resistance to the Rodel way of thinking.  I haven’t heard anything about Donna Johnson going anywhere.  The Executive Director role is chosen by the State Board of Education President which is currently Dr. Teri Quinn Gray.  She was appointed by former Governor Jack Markell.

The State Board of Education is still under Sunset Review by that legislative committee.  Prior to the announcement about their funding, the committee agreed to hold them over until next year.

The Sun Rises For The Delaware State Board of Education

The Delaware Joint Legislative Oversight and Sunset Committee voted today not to Sunset the Delaware State Board of Education.  Sunset would have shut down the board.  I will write more details later since I arrived late for the meeting due to a prior commitment.  As for the State Board’s Executive Director, Donna Johnson, the board voted for option one in regards to her role: The Board will present to the Committee a revised Executive Director job description to better align with the Board’s duties.

Issues surrounding public comment got a bit of discussion.  The JLOSC voted unanimously that the State Board of Education shall allow public comment before each action item but with an amendment.  Public comment may not be allowed during action items that have a pre-established and finite public comment period, such as regulations and charter school issues.  The reason for this is because state code allows for this.  Newly christened Senator Stephanie Hansen said during county council meetings in Sussex and New Castle Counties they allow for this because sometimes the public comment could affect a decision by the Council.  State Board member Pat Heffernan said they are bound by the Delaware State Code.  In my eyes, that is legislation begging for change as soon as humanly possible.  The Committee agreed that information shall be sent to public libraries and schools with meeting information about the State Board of Education.  A matter surrounding charter school approval and local impact was tabled so the State Board of Ed can give more clarifying information about their role on this matter.

I did not anticipate the JLOSC would shut down the State Board of Education.  I surmised some items would pass and some wouldn’t.  Without an apparatus in place to replace them it would be tough to figure out who should pass regulations.  Once again, legislation could take care of a lot of the issues surrounding them.  In a poll I put up the other day, over 70% of readers felt the State Board should shut down permanently.  I write this with the caveat that my readership tends to align with what I believe more and the poll only had over a 100 voters.

Take The Poll On The Delaware State Board of Education

High Noon For The Delaware State Board of Education On Tuesday

We can do it better ourselves but we won’t tell them that.

The Delaware State Board of Education could be shut down as of Tuesday.  They face the Delaware Joint Legislative Overview and Sunset Committee.  The State Board was put under review by the committee last year after some very rough years under former Governor Jack Markell.  Many of the complaints circulate around their Executive Director, Donna Johnson.  As well, many citizens and education organizations in the state feel the State Board has outlived their usefulness and just seem to perpetuate agendas brought forth by corporate education reform organizations such as the Rodel Foundation of Delaware and the Delaware Charter Schools Network.  I wrote about their last meeting with the committee over a month ago.  But I was able to be the sole attendee at a meeting yesterday where the State Board discussed their final meeting with the Sunset Committee and boy was it a doozy! Continue reading

When You Can’t Give Public Comment About A Change In Public Comment

The Delaware State Board of Education has always been ridiculous with their public comment policy.  You cannot give public comment on any action item on their agenda.  Further complicating this absolutely ludicrous scenario is a proposed change which will be up for action at their next meeting, on Thursday March 23rd.  The State Board of Education will take action on moving public comment from the beginning of the meeting until towards the end.  Thereby ensuring that the public is put on the bottom of the list.  There are certain groups that put public comment at the end of meetings, but the State Board of Education needs to hear from the public prior to voting or discussing items.  The very nature of attempting to contact a member of the State Board of Education is futile.  Everything goes through the Executive Director, Donna Johnson.  The State Board of Education will be having a meeting tomorrow at 12 noon to discuss the policy recommendations from the Joint Sunset Committee, a group of legislators who are taking a hard look at the State Board of Education.

As far as this latest action item, I am vehemently against this.  The State Board meetings are very long at times and to make members of the public sit through the whole thing just to give public comment is absurd.  I hope the State Board votes no on this insane idea.

Delaware State Board of Education’s Wild Sunset Review & They Are Still Missing A Member

The State Board does not hear or receive official complaints.

As the Delaware State Board of Education goes through their sunset review with the Delaware Sunset Committee, it has become more clear than ever this is a state agency in need of massive change.

After board member Jorge Melendez resigned last fall, the Delaware State Board of Education still has six members on their seven seat roster.  Three weeks into Governor Carney’s four-year term, there has been no nomination for Melendez’ replacement.

My concern is what happens if the State Board of Education votes on an action item which results in a tie vote.  Who breaks that stalemate?  How long will Carney wait to choose a replacement?  As well, the Governor has the authority to replace the existing State Board of Education President with Senate confirmation.  Will Carney do this which has been a typical thing in the past?

At present, the Delaware State Board of Education is under Joint Sunset Review by Delaware legislators.  Donna Johnson, the Executive Director of the State Board, submitted a very lengthy questionnaire to the committee last October.  Johnson provided an extensive and very thorough history of the State Board of Education which included items I had no clue about.  Included in the document is a list of Delaware Attorney General opinions that affect the agency.  There have been 21 such opinions dating back to 1996 with an average of one per year.  Eight Executive Orders, all issued for former Delaware Governor Jack Markell, had an impact on the State Board as well.  There is one section that talks about bringing the former Delaware Teacher of the Year on the board as a non-voting member.  Donna Johnson’s role was changed in 2010 from Policy Analyst to Executive Director.  Aside from her, the only other staff is an administrative assistant through the Delaware Dept. of Education (awesome lady by the way, Dani Moore).  Donna Johnson’s performance review is also included in the below document, but there is no indication of who approved this review aside from the State Board of Education in 2015.  I do not recall seeing this performance review on a State Board of Education agenda, but that may not be required under Delaware code or perhaps I missed it.  The most shocking part of this document exists towards the end.  The State Board of Education does not receive or recognize complaints about their own agency.  Perhaps this is why they are often perceived as a state agency that acts with an air of impunity and infallibility.  I believe that needs to change.

 

State Board Of Education Next Week: Academy Of Dover Renewal, WEIC, Priority & Focus Schools, ESSA, & Some Must-Read Educator Regulations

The Delaware State Board of Education meeting on Thursday, December 15th has some very interesting presentations and action items!  This could be Delaware Secretary of Education’s second to last meeting.  He announced today that the earliest he would leave his position would be January 18th.  More details on that, as well as his replacement, later in the article!

The most interesting presentation, in my opinion, will be the one about priority and focus schools.  Representatives from Red Clay, Christina, Capital and Laurel will give updates on how their “turnaround” schools are doing.  This includes the seven priority schools- three in Red Clay, three in Christina, and one in Laurel.  I pray this isn’t a repeat of the meeting last December when State Board President Dr. Teri Quinn Gray had a meltdown over the Christina priority schools.  I would tend to doubt it since that all got sorted out in the middle of the WEIC/State Board fiasco last February.

Speaking of the Wilmington Education Improvement Commission, it looks like someone from WEIC will give a presentation on where their redistricting plan is six months after the Delaware General Assembly did not pass legislation to fund the plan but instead gave them an extra year in the process.  From what I’m hearing, there is some discontent on the main WEIC group and some tension is building.  I reported last week Christina was getting a facilities evaluation for all their buildings in Wilmington.  Tony Allen, the Chair of WEIC, did respond to me and stated this was part of the WEIC process from Senate Bill 300 but did not touch on the exact wording of the amendment on that bill.  This is a VERY gray legal area in terms of the wording for this facilities review to even happen, but once again, this is Delaware.

We will get the usual monthly update on how things are going with the Every Student Succeeds Act.  I expect a lot of head tilts from Gray as she tries to understand the new timeline.  I pray someone brings up Betsy DeVos, Trump’s Secretary of Education pick.  Please, make it happen!  I can say the ESSA Discussion Group will meet at the end of January but exact dates have not been determined yet.

Academy of Dover gets their charter renewal vote at this meeting.  I expect the State Board will approve it.  There will be some talk about getting their enrollment up, but it will pass.  Most likely a unanimous vote.  No drama here.

This meeting will be a Regulation bonanza though!  Regulations are a very tricky beast.  When you look at just the description for the changes on an agenda, the true meat is in the actual regulatory changes.  And there are tons and tons of changes for Regulations 1503 and 1510.  Teachers, especially new teachers, will want to read these!  But other staff in schools will also want to read these, especially counselors and nurses.  Other regulation action items deal with Secretary-only ones that actually repeal old regulations dealing with school nutrition.  A couple of regulations dealing with surrogates for IEP students above the age of 18 are also getting a State Board vote.

There are no major personnel changes.  Secretary Godowsky’s Associate Secretary, Candice Brooks, will be moving to the Title I Family and Community Engagement area as an Education Associate.  This signals a shift of employees coming at the Delaware Dept. of Education.  Secretary Godowsky WILL be leaving.  The question is when.  The new Secretary may not start right at the beginning of Carney’s administration if they have to facilitate an exit from their current Delaware job.  Yes, the new Secretary will be from Delaware.  Godowsky did confirm that today (not that anyone thought otherwise).  So Godowsky has publicly stated he will stick around during that transition.  The new Secretary of Education announcement could come as early as this weekend but most likely next week, along with all of Carney’s Secretary picks.  While this is not official, I am hearing the Secretary of Education pick is down to two people.  All I can say is that they were on my poll last week.  I will say no more!  But Carney could make other sweeping changes to the DOE besides the supreme leader.  The Governor picks the President of the State Board of Education, the Executive Director of the State Board of Education, and pretty much all the leadership positions at the DOE.  Will Dr. Teri Quinn Gray, Donna Johnson, and Michael Watson survive the new administration?

If you are in Dover next Thursday, and have some time to kill between 1pm to 5pm (or 7pm if Dan Rich gives the WEIC Presentation, just kidding Dan!), come on over to the Townsend Building and bring popcorn!  Maybe Governor Markell will pop over to give a farewell speech to the State Board!

 

Donna Johnson on Jorge Melendez State Board Exit

Yesterday morning, I announced Delaware State Board of Education member Jorge Melendez was taken off the roll call for the board on their website. I reached out to Executive Director Donna Johnson for clarification on his exit. Late afternoon, I did receive a reply from Johnson who did let me know the reasoning behind Melendez’ exit.

Mr. Melendez submitted his resignation from the State Board to the Governor’s office. Mr. Melendez is moving out of state and would no longer be eligible to serve on the Board. As you are aware, the Governor brings forth nominations for the SBE to the State Senate for confirmation, just as is done with several other Boards. During this time when the General Assembly is out of session and the Governor’s administration is coming to an end, it is not uncommon for Governors to choose to leave a vacant seat open so that the next administration may appoint and the next State Senate may vote on confirmation. There are other boards facing this same situation right now and historically it is not an unusual occurrence. I do not have details about the nominations made during the special session on 10/13, but know there was not a nomination for a new member to the SBE made during that session. You would have to address the Governor’s office with respect to any details regarding their process in making this appointment.

Where there is smoke, there’s fire. But none here. Just someone moving on. Good luck to Mr. Melendez with his move and future endeavors in another state. And thank you to Donna Johnson for the response.

Delaware State Board of Education Missing A Member

The Delaware State Board of Education is a seven member public body appointed by the Governor of Delaware.  But one of their members has been taken off the list of active members.  Jorge Melendez is no longer a State Board of Education members.  I went back and listened to the past few State Board of Education audio recordings.  Mr. Melendez was not on the roll call for their October 13th meeting.  I did not hear any announcement reflecting his resignation from the State Board, but I do contend I could have missed something.

destateboard

 

The Delaware Senate held confirmation hearings on October 13th, the same day as the last State Board of Education meeting.  There were a handful of Senate nominations that day but the General Assembly website does not reflect what those nominations were for.  I did send an email to State Board of Education Executive Director Donna Johnson for clarification on this at the time of this writing.  I will update this article if I hear back from her.

By Delaware state law, the State Board of Education must consist of seven members.

Well This Should Be Interesting… The Irony Is Astounding!

On September 15th, a presentation will be given at the State Board of Education meeting by Kendall Massett with the Delaware Charter Schools Network.  The subject: charter and district collaboration.  The irony!  Kendall will be joined by charter leaders AND district leaders.  I’d give pretty good odds Dusty Blakey will be there.  The Colonial Superintendent joined the board of Las Americas Aspiras last spring.  What other district leaders will be in attendance?  I’d give even better odds that Acting Christina Superintendent Bob Andrzejewski will NOT be there.

Who do you think will show up?

I’m going to guess Ed Emmett with Positive Outcomes, Matt Burrows with Appoquinimink, maybe Merv Daugherty with Red Clay, and could it happen?  Greg Meece with Newark Charter School?  They should be good as long as they don’t bring up FUNDING.

kendallsboepresentation

Attorney General Legal Opinion On FOIA Complaint Against State Board of Education Needs Some Serious Fact Checks!

Delaware State Representative Kim Williams filed a FOIA complaint against the Delaware State Board of Education last February in regards to their board meeting on February 18th.  This was the infamous and controversial Wilmington Education Improvement Commission redistricting plan vote!  Regarding public seating at State Board meetings, the Attorney General is going by how many people sign in for these meetings.  Frequently, Delaware Department of Education Employees attend these meetings (that are not directors which are assigned their own seats on the sides of the room) and do not sign in.  This can take up a lot of seats.  Not everyone signs in.  I have attended many of these meetings to see several people in the hallway.  It has been addressed in public comment to the State Board of Education on more than one occasion.

 

July 28, 2016

VIA EMAIL AND STATE MAIL

Representative Kim Williams
Legislative Hall
411 Legislative Avenue
Dover, DE 19903
kimberly.williams@state.de.us

 

            Re:    FOIA Complaint Concerning the State Board of Education

 

Dear Representative Williams:

 

The Delaware Department of Justice (“DOJ”) received your letter dated February 25, 2016 requesting our determination, pursuant to the Freedom of Information Act, 29 Del. C. Ch. 100 (“FOIA”), of whether the State Board of Education violated the FOIA open meeting requirements.  We treat your email as a petition for a determination of whether a violation of FOIA has occurred or is about to occur.  29 Del. C. §10005(e).  Our determination is set forth herein.

 

I. FACTUAL BACKGROUND[1]

On February 18, 2016, a State Board of Education (“Board”) meeting was held in the second floor Cabinet Room of the Townsend Building located at 401 Federal Street in Dover. Representative Williams attended the meeting along with other members of the public. During the meeting, the Board entertained a motion to approve the Wilmington Education Improvement Commission (“WEIC”) Plan with an amendment.

 

II. POSITIONS OF THE PARTIES

The Petition alleges that the Board “was aware that many people would be attending th[e] meeting and did not change their meeting location to accommodate all the people.”  As a result, Representative Williams alleges “many people had to stand out in the hallway.”  The Petition also alleges that the Board violated FOIA’s open meeting requirements by conducting conversations off the record and out of the presence of the members of the public who were in attendance:

The State Board during their public discussion on the original motion stopped the discussion and went off the record and out of the room to speak with their attorneys and board members – it was done when they were getting ready to vote.  The State Board of Education, Donna Johnson, Secretary Godowsky, attorneys and others were going into the back room – obviously they were in discussions about the motion …

 

Finally, the Petition alleges that the Board acted improperly by considering the WEIC recommendations with conditions after the motion on the WEIC Plan had been voted down by a vote of 4 to 3.  Specifically, pursuant to Senate Bill 122, the Petition alleges that the Board was required to vote yes or no, and if they voted no, “they [we]re to send the recommendations back to the WEIC Commission with an explanation as to why they voted no.”

 

The Board submitted its response to the Petition on March 9, 2016.  Regarding the allegation that the Board should have moved the meeting location in advance of the meeting, the Board argues that the Board was unaware that the meeting would be as heavily attended as it was.  In fact, the Board noted that WEIC representatives had reached out to the Board and requested that six chairs be reserved in the audience for the meeting. The Board also responded that it has held its meetings in the Cabinet Room for more than forty years. With respect to the allegation that the Board improperly engaged in conversations off record, the Board responded that the President of the Board discussed a procedural question for the Board’s counsel during a break, but that “at no time was a quorum of the board involved in any private or ‘back room’ meeting,” and there was thus no violation of FOIA as a result of conversations among Board members that may have taken place during the break.

 

On March 10, 2016 and March 20, 2016, Representative Williams supplemented her Petition. In the March 10 correspondence, Representative Williams asserted that members of the public have repeatedly complained about the size of the meeting location and the fact that the Board has always met in the Cabinet Room is not a sufficient basis for the meetings to remain in that room.  Additionally, she alleged that any questions that were discussed during the break should have been discussed in public.  In the March 20 correspondence, Representative Williams asserted that “[t]he discussion should have never occurred in the back room, with or without a quorum, behind closed doors.”  She also provided an email from Michael Matthews, who asserted that “[a]ll Board members, Sec. Godowsky and State Board Executive Director Donna Johnson left the room together…”

 

 

III. REQUEST FOR ADDITIONAL INFORMATION

On June 9, 2016, we requested additional information from the Board regarding the size of the Cabinet Room. The same day, the Board responded that, when the room is set up for State Board of Education meetings, there are 57 chairs.  However, for the February meeting, there were about 64 chairs. The Board noted that, for each meeting, there are about 20 reserved chairs.  Based upon this information, including the six chairs specifically reserved for the WEIC at the February 18 meeting, there were about 38 chairs open at the February meeting.

 

The Board also provided a count of attendees at previous meetings based solely upon the individuals who chose to sign in at each meeting, which the Board indicated was its only mechanism for counting attendance.[2] The September 2015 meeting during which WEIC was discussed, had 37 guests sign in. WEIC was also discussed at the October meeting, which had 22 guests. The next time WEIC was discussed during a Board meeting was December, when there were 47 guests. At the January 2016 meeting the WEIC proposal was presented for action and there were 31 guests. Finally, at the February 2016 meeting at issue here, there were 58 individuals who signed in. There were 35 guests who signed in for the final WEIC meeting in March 2016.

 

IV. APPLICABLE LAW

FOIA’s “Declaration of Policy” provides that “citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made ….”[3]

 

“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].”[4]  “Public body” includes any subcommittee of a public body that is supported by public funds, spends public funds or is charged with making “reports, investigations or recommendations” to a public body.[5]

 

A public body must vote at a public meeting to move into executive session, and “all voting on public business must take place at a public meeting and the results of the vote made public.”[6]

 

V. DISCUSSION

The Board Violated FOIA by Not Moving or Considering Whether to Move the February 18, 2016 Meeting From the Cabinet Room. 

 

Representative Williams alleges that the Townsend Building Cabinet Room was too small to hold the public interested in the WEIC matter. The Board responded that it could not have anticipated the number of people who attended the meeting, especially because WEIC only requested that six chairs be reserved.

 

When considering whether a public body has violated the open meeting requirement based upon the alleged inadequate size of the venue, we have looked both at what the public body knew at the time of scheduling and how it responded to an unexpected overflow.[7] “‘[T]he governmental unit must balance the public right of access against the burdens that providing additional public access would impose on the governmental unit.’”[8] The standard for any individual meeting is reasonableness under the circumstances.[9]

 

FOIA does not require the public body to predict the exact number of citizens who may attend a public meeting.[10] But, we have stated that “if a public body has reason to know that a large number of citizens is likely to attend a meeting, then FOIA requires the public body to find another, larger place for the meeting.”[11]  A venue that may be reasonable at the time a meeting is noticed may become unreasonable due to an unanticipated overflow at the meeting.[12]  Thus, we have also stated:  “[I]n the event of an overflow, a public body should consider adjourning the meeting to another time at a facility that can accommodate all of the interested citizens.”[13]

 

Viewed from the perspective of what the DOE knew before the meeting, we find this to be a close call.  The WEIC matter was highly-publicized and politically charged.  The Board has been using the Cabinet Room for its meetings for more than 40 years,[14] including for the four previous meetings of the WEIC.  Representative Williams contends that the public has “repeatedly complained” about the inadequate size of the room, but she does not identify to whom such complaints were directed, and there is no evidence that anyone contacted the DOE before the meeting to request that the meeting be moved to a larger venue.  Also, the sign-in sheets reveal that 23% more people signed in at the February 18 meeting than the highest number DOE had seen from the previous meetings.  Perhaps attendance at this meeting was anomalously high.  Unfortunately, the number of people who sign the sign-in sheets reveals little about the actual attendance at any of the prior meetings.

 

But, we must also consider what information DOE had at the beginning of the meeting, when it could have made some reasonable accommodation for an unanticipated overflow.  The exact size of the overflow is not clear.  Representative Williams says that “many” people were made to stand in the hallway.  We have no information from DOE respecting the size of the overflow at the meeting, except for the information we can glean from the sign-in sheet, which, again, reveals little about actual attendance.  What is clear, however, is the absence in the record of any facts suggesting that the DOE considered or attempted to respond to the overflow or to make reasonable accommodations to facilitate citizens’ attendance at the meeting.[15]

 

On the whole, we must conclude that the DOE has not met its burden to prove that it satisfied its obligations under FOIA in connection with the February 18 meeting.

 

The Board Did Not Violate FOIA When the President of the Board Consulted With the Board’s Counsel. 

 

Representative Williams states that the Board took a break during the February meeting in the middle of discussing the WEIC motion. This exchange was not recorded, but counsel for the Board confirms that the Board President and counsel for the Board engaged in a discussion about the vote. Counsel also states that three other Board members approached counsel with questions, each separately. Counsel for the Board states that at no time was there a quorum of Board members discussing public business during a break.

 

A public meeting is defined as “the formal or informal gathering of a quorum of the members of any public body for the purpose of discussing or taking action on public business….”[16] Moreover, “conversations with each other or with staff do not need to be public unless they include a quorum of the members.”[17] Indeed, “absent some evidence that the members knowingly avoid public monitoring of the deliberations of the quorum, there is no basis on which to find that FOIA has been violated.”[18]

 

Here, there is no evidence that a quorum of members discussed the vote with the Board’s counsel.  As such, we find no FOIA violation in connection with Board members’ individual discussions with the Board’s counsel.

 

The Substantive Validity of the Board’s WEIC Vote is Outside the Scope of FOIA.

 

Representative Williams raises concerns regarding the substantive validity of the Board’s vote on the WEIC matter.  The substantive validity of the Board’s vote is a matter outside the scope of FOIA and, as a result, is not addressed here.[19]

 

VI. CONCLUSION

We conclude that the Board violated FOIA when it failed to consider the adequacy of the venue upon learning of an overflow of attendees.  However, we decline to find that the Board’s actions at the February 2016 meeting should be invalidated. To invalidate the numerous actions taken at the February meeting would have “draconian consequences.”[20] Additionally, invalidation of the SBE’s approval of the WEIC plan is moot given that the General Assembly sent the redistricting plan back to the WEIC for further consideration and development. We suggest that the Board consider the adequacy of the Cabinet Room as a venue when scheduling future meetings or when thereafter confronted with unanticipated interest.

 

This decision is directed solely to the parties identified herein.  It is based on the facts relevant to this matter.  It does not constitute precedent and should not be cited as such by future parties.

 

Very truly yours,

/s/ Danielle Gibbs

Danielle Gibbs
Chief Deputy Attorney General
cc:       Patricia A. Davis, Deputy Attorney General (via email)

 

[1]           The Factual Background Section of this Opinion refers to your communications as made by “Representative Williams” for ease of future reference by third parties.

[2]              There is no evidence in the record that the DOE asks all attendees to sign-in at meetings.

[3]           29 Del. C. § 10001.

[4]           29 Del. C. § 10004(a).

[5]           29 Del. C. § 10002(c).

[6]           29 Del. C. § 10004(c).

[7]           Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).

[8]           Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002) (quoting Del. Op. Att’y Gen. 96-IB23 (June 20, 1996)).

[9]           Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).

[10]         Id.

[11]         Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).

[12]            Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).

[13]         Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).

[14]            This historical fact is not relevant to whether the venue for any particular meeting is reasonable under the circumstances.  But, it suggests that if someone was aware that a large number of people would attend the meeting, that person might have informed the DOE in advance.  Cf. id.

[15]         Indeed, the DOE’s response that the Cabinet Room has been used for forty years suggests that it has not adopted a practice of considering the adequacy of its standard venue in connection with each public meeting.  Cf. Del. Op. Att’y Gen. 96-IB23 (June 20, 1996) (noting public body’s history of selecting meeting space based upon anticipated or actual attendance); Del. Op. Att’y Gen. 14-IB03 (June 16, 2014) (public body did not violate FOIA, despite turning attendees away from meeting, where it had forgone its regular meeting venue and noticed meeting for a significantly larger venue); Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998) (public body responded reasonably to unanticipated attendance by moving to larger space to discuss one issue that generated great interest).

[16]         29 Del. C. § 10002(g).

[17]         Del. Op. Att’y Gen. 10-IB12 (2010).  See also Del. Op. Att’y Gen. 16-IB05 (2016).

[18]         Del. Op. Att’y Gen. 10-IB12 (2010).

[19]         See Del. Op. Att’y Gen. 16-IB05 (2016); Del. Op. Att’y Gen. 15-IB06 (2015).

 

[20]         See Levy v. Bd. of Educ. of Cape Henlopen Sch. Dist., 1990 WL 154147, at *8 (Del. Ch. Oct. 1, 1990).

 

If an entire board leaves a room after casting a vote, says they need to convene with council, come back and change their vote, against the spirit of the legislation that charged them with taking a very particular vote, what more evidence do you need?  They all left the room together!  Come on Delaware Attorney General Office!  Would it kill you to actually side with right on this one?  It may be out of your scope to decide if the board acted appropriately in regards to Senate Bill 122, but isn’t that your purpose?  To look at former Attorney General opinions, that did not have the scope of this decision, is not sufficient in my opinion.  And the whole part about “draconian consequences” is bogus, once again, in my opinion.  The State Board and DOE will always say and do anything to cover their ass.  They are masters at this practice.  And they get away with a lot because of it.  The premise of FOIA is good, but what comes out of it, more often than not, takes the side of the state entity that has the complaint lodged against them.  The main thrust of Rep. Williams complaint was the State Board of Education violated FOIA by meeting as a quorum outside of the public setting.  Instead we get this long litany of how many chairs were in the room and who signed up as an attendee!

Yes, we are all in agreement: this State Board of Education needs to change the location of their meetings!  At the Collette Center up Route 8, the DOE has two huge conference rooms with a partition that can be taken out to make it an even bigger conference room.  This location can fit hundreds of people.  Make it happen State Board!  And I’m pretty sure that the air conditioning unit in this newer building is better (after last week’s sticky, sweaty, humid board meeting at the Townsend Building).  Tradition should not get in the way of public access.  We all know there are some State Board meetings where attendance is slim, but that is not the norm.  Especially with all the crazy decisions regarding charters, accountability, teachers, and schools at these meetings.  Here is another novel idea: Live Stream your meetings!  The General Assembly does it when the full House and Senate are voting on bills.  Why can’t you?

I do know one thing.  I have a couple FOIA complaints out there myself.  This explains why I haven’t heard anything on them yet!