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

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 “High Noon For The Delaware State Board of Education On Tuesday”

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!

What’s On The Agenda At The State Board Spring Retreat Today?

The Delaware State Board of Education is meeting right now in their Spring Retreat.  In the agenda (seen below), it appears they are prepping for several items, one of which I didn’t know about since it appears it was snuck into the epilogue of the FY2015 budget.

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Part of me wanted to go to this meeting, but then I realized I would just hear the same bad lingo I always hear from this board.  Although I would have loved to hear them discuss their little Joint Sunset Review!  Their ESSA overview is filled with the same corporate education reform language from companies like The Alliance for Excellent Education or whatever the heck their name is.  I can’t keep track of them all anymore.

What gets me is this Special Education Strategic Plan.  Why is everything called a “Strategic Plan” these days?  It’s just more buzz words that sound important but allows more of the same “college and career readiness” crap into our schools.  The axis for everything in education now is the standardized test.  Just opt out…

Delaware House Education Committee Baffled By Inability Of Public To Comment On Action Items At State Board of Education Meetings

This bill is a no-brainer! DeStateBoardofEducation

At the House Education Committee meeting in Delaware today, members looked confused as State Board of Education Executive Director Donna Johnson tried to explain to them why they don’t allow public comment before any action items.  Citing regulatory laws and charter applications, which are in the synopsis of the bill, Johnson said regulations have a set period of public comment.  For charter applications, she said State Board members are required to vote on the charter file which is set up with a public comment period.  State Rep. Kim Williams brought House Bill 232 forward because of events she witnessed at State Board of Education meetings.

For a while there, the volley went back and forth between Williams and Johnson.  Williams stated she wanted to give public comment on Gateway Lab School’s formal review the day the State Board made their decision but she couldn’t because of this rule.  She also cited a recent Regulation, #616, that she wanted to give public comment on but couldn’t.  Johnson explained that Regulation 616 was a Secretary only regulation so she could have given public comment.  How anyone could ever keep track of all this stuff is beyond me.  If you are just a curious member of the public going to these meetings, you would have no clue!

Johnson went on to say the State Board could face a risk of a lawsuit if they voted on something based on a public comment after they have reviewed the entire record.  When asked if there has ever been any lawsuit in any situation like this for any state agency, the answer was no.  As State Rep after State Rep tried to figure out why the State Board wouldn’t allow public comment, it culminated in State Rep. Sean Lynn stating he felt the opposition to the bill (which only came from Johnson and Kendall Massett with the Delaware Charter Schools Network) was disingenuous and was filled with self-interests.  No one on the committee had any reason to oppose the bill and it was released from committee.

For a split second, I almost felt bad for Donna Johnson.  Not because I felt she was right, but because she has no idea how she sounds to decision-makers.  She doesn’t see how going to bat for her friends in the charter community actually hurts her in the long run.  When a fervent charter school supporter like State Rep. Mike Ramone is saying this is an excellent bill and doesn’t understand why this isn’t already allowed, you know there is something wrong with the policy.  He questioned Johnson about the ability for a three minute public comment to completely sway a vote.  He felt that an official on any board should have enough knowledge of the events to be able to make a sound decision on matters.

Massett gave public comment.  She recalled a charter application in Southern Delaware where someone gave a statement that was completely false but there was no ability for the person they were talking about to rebut the comment.  This was the only “evidence” she could give to oppose House Bill 232.  I believe it was State Rep. Kevin Hensley who stated someone could still file a defamation of character suit in an incident like that.

Both State Reps Kim Williams and Kevin Hensley talked about their time on school boards and they couldn’t fathom not letting the public speak about an action item.  Hensley explained there were times when parents or a member of the community approached him about an issue right before a board meeting.  He said he would tell them to make sure to give public comment so the whole Board could hear it.  Red Clay Superintendent Dr. Merv Daugherty said he may not always like what he hears in public comment, but he appreciates the public comment process.  As Lynn said today, “this bill is a no-brainer.”

I gave public comment before the vote.  I explained the public comment ban also happens for other charter issues, such as modifications or formal reviews.  I cited Family Foundations Academy and the Delaware Met as examples where things happened after the charter record closed and the State Board voted on something without giving the ability to the public to add new events.  I said there was an inherent danger with this.

One of the funnier moments came when Ramone kept going on and on about how the meeting room for State Board meetings was too small.  He recalled how it is standing room only and many people are forced to stand in the hall.  He suggested maybe they meet in the House chambers!  While it would be difficult to have seven state board members, an executive director and the Secretary of Education cram into the front of the House chamber, I’ve always suggested utilizing the VERY large conference room at the DOE’s other building over at the Collette Center in Dover.  While it isn’t as “official” looking as the Cabinet Room at the Townsend Building, it is certainly big enough to fit the State Board, DOE Chiefs, and at least a hundred members of the public, if not more.

It became very apparent to everyone in the audience today exactly why the Delaware State Board of Education was put on review by the Joint Sunset Committee yesterday.  In my opinion, I think this antiquated rule is something that comes from a country where dictators rule and the people are put on mute.  Transparency isn’t just being open with your records and dealings, it is also letting the public be transparent about how they feel.

One quick note: House Bill 161, which deals with Parent Empowerment Savings Accounts for students with disabilities, or as most call them, school vouchers, was taken off the agenda for today’s House Education Committee.

What Happened With The Last Delaware State Board of Education Sunset Review!

Today, the Delaware Joint Sunset Committee, a group of 10 legislators comprised of five State Reps and five Senators, put the State Board of Education under review.  As per their section on the Delaware General Assembly website, most state boards and agencies are supposed to get a review every seven years.  I did some checking to find out what happened at the last State Board Sunset review.  What I found was very shocking and makes the need for their current review even more urgent!  Combing through the state history for State Board of Education Sunset reviews, I was surprised this board has been around since 1898.  That was 118 years ago!

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Before I give the date of their last review, I found this information on the Delaware Public Archives website: Continue reading “What Happened With The Last Delaware State Board of Education Sunset Review!”

Breaking News: Here Comes The Sun! Delaware State Board Of Education Under Review Next Year

The Delaware State Board of Education will be under review by the Delaware Sunset Committee in Fiscal Year 2017.  At the meeting today in Legislative Hall, Delaware Senator Brian Pettyjohn brought up the nomination for the State Board of Education.  Citing concerns with fiscal transparency, Pettyjohn felt the State Board (who has never come up for a review by the Sunset Committee) should get a review.

For those who may not remember, on January 1st I wrote an article about why I wasn’t going to file complaints in regards to this mess and the other train wrecks happening in the State Board of Education.  I’ve known this nomination was going to come up for a long time now.  I’ve been biding my time waiting for today, and it is finally here.  I could have filed complaints, but sorry, I don’t trust the system in Delaware with complaints.  Instead, I will submit any information to the Sunset Committee for their review.

In determining their review, the State Board of Education’s budget for this fiscal year is $223,100.  Executive Director Donna Johnson’s salary is a little over $90,000 and the administrative assistant’s salary is nearly $54,000.  Each board member gets paid $100 per State Board meeting but they can’t attend more than 24 meetings in a year.  It is very hard to track their expenses from a citizen’s perspective because they do not have their own section or tab under the Department of Education on Delaware Online Checkbook.

The State Board of Education has been a lightning rod of controversy in the past year.  Between the Wilmington Education Improvement Commission redistricting plan vote, the inability to give public comment on action items, the situations I wrote about in the above links, and the fact that Donna Johnson serves as a State Board rep on most education activities without actual board member representation.  These are just some of the things that annoy the citizens of Delaware who are involved in education.  Most feel the State Board of Education should be publicly elected and not appointed by the Governor of Delaware.  For all of their arrogance and hubris, it looks like they are the next stop on the karma bus!  More details to come on this monumental nomination!

While the membership of the Sunset Committee could certainly change next year due to the upcoming elections, the following legislators serve on the committee: State Rep. Gerald Brady (Chair), Senator Nicole Poore (Vice-Chair), State Representatives Andrea Bennett, Stephanie Bolden, Tim Dukes, Jeff Spiegelman, and Senators Brian Pettyjohn, Bryant Richardson, David Sokola, and Bryan Townsend.

This is the process for review by the Joint Sunset Committee, from their website:

SunsetCommitteeReviewProcess

State Board of Education Approved Modifications For DAPSS, DE Design-Lab, First State Montessori, & Prestige Academy

The Delaware State Board of Education approved all the major modifications that came across their table last Thursday. The charter schools involved either raised or lowered their enrollment numbers with their modification applications.

Delaware Academy of Public Safety & Security got rid of 8th grade and lowered their enrollment numbers to 330 for the 2016-2017 school year with increased enrollment of 375 by the 2020-2021 school year to keep them as a 9th to 12th grade school.

Delaware Design-Lab High School also lowered their enrollment, but they will be adding 11th grade next year as per their original charter application. Their growth is a bit more aggressive with 350 students in 9th-11th grade for 2016-2017, 475 for 2017-2018 when they add 12th grade, and up to 600 by 2019-2020.

First State Montessori Academy, who will be taking over the former Delaware Met building next door to them, was approved to add a middle school with students in 6th to 8th grade. Their enrollment for 2016-2017 must be 430 students in Kindergarten to 6th grade and by 2021-2022 they must have 654 students in K-8.

Prestige Academy is now a 6th to 8th grade school instead of a 5th to 8th middle school, and their enrollment has been lowered to 240 from the 2016-2017 school year and every year proceeding that.

Odyssey Charter School had a modification approved without the consent of the State Board of Education since it was considered a minor modifications. Their modification surrounded enrollment with increases less than 15%. Odyssey’s approved enrollment includes their high school which will make them a K-12 school by the 2019-2020 year. Both Kuumba Academy and Great Oaks Charter School had similar minor modifications approved in February by Secretary Godowsky with no grade level changes.

With the charter moratorium for Wilmington still in effect from House Bill 56, no new charter schools can apply for a Wilmington location. But that doesn’t seem to stop the existing schools from tweaking their numbers. Many First State Montessori parents wanted the change, but some folks submitted public comment around their enrollment preferences and were worried this could create more bias in the school. Prestige and Delaware Design-Lab were both on probation due to low enrollment figures last year. Their will still be many charter school enrollment changes next school year based on these approvals. More students in flux around Wilmington is not, in my opinion, a way to stabilize the situation with constant student movement in the city. If the Wilmington Education Improvement Commission redistricting plan is approved by the 148 General Assembly, it will create even more flux with students as Christina’s Wilmington schools become a part of the Red Clay Consolidated School District.

State Rep. Kim Williams Slams State Board Exec. Director Donna Johnson At WEIC Meeting Tonight

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The Wilmington Education Improvement Commission had two meetings tonight.  At 5pm, they had their Redistricting Committee meeting and at 6:30 they had a regular commission meeting.  During the public comment part of the redistricting meeting, State Rep. Kim Williams advised the audience State Board of Education Executive Director Donna Johnson was telling State Board members how to vote on the WEIC plan at last week’s controversial State Board of Education meeting.  This was overheard by a few people in the audience at the State Board of Education meeting.  The best part… Donna Johnson was sitting in the row behind her.  As reported to me by several people, Johnson immediately began shaking her head no.  She did not look happy at all by the time I got there.

I was not there for that stunning announcement, but I did arrive late to the commission meeting.  As Milli Vanilli would say, blame it on the rain.  But the meeting was in full swing by the time I got there.  Commission member Yvonne Johnson introduced a motion to send the WEIC plan back to the State Board without their amendments concerning “shall” and “may” and the Christina priority school plans.  The motion passed, after a lot of heated discussion on both sides of the argument, with 15 yes, 6 no, and 2 absent.

Prior to that, State Board President Dr. Teri Quinn Gray and Secretary of Education Dr. Steven Godowsky were there to answer questions.  The best moment of the evening, which drew a huge round of applause, was when Christina Board President Harrie Ellen Minnehan informed Dr. Gray about how former Secretary of Education Mark Murphy never signed their memorandum of understanding developed with their board, the DOE, and representatives from Governor Markell’s office.  Dr. Gray actually said she wasn’t aware of that even though she was told this at the December State Board meeting.  She told Minnehan she misread the addendum to the WEIC plan, even though it was very clearly spelled out.  I have to wonder if these State Board members read anything or if Donna Johnson is calling the shots 100% of the time.  Minnehan told Dr. Gray she wanted an apology from the State Board for their misleading labeling of the Christina School District.  Many members of the commission and nearly all of the audience clapped at this.  Of course, Dr. Gray did not apologize.  I guess they need a board vote to determine if they “may” or “shall” do that.

Commission member Chandra Pitts asked Gray if she understood the intent of Senate Bill 122, which was that the WEIC plan either got a yes or a no vote from the State Board.  Gray responded by saying she did understand the legislation.  Pitts asked Secretary Godowsky what his plans are for Wilmington students after he openly said he wanted to make sure the Christina priority schools clause was put into the State Board’s consideration for the WEIC plan.

Gray said the State Board will advocate for Wilmington students just as much as they do for all of Delaware’s students.  This didn’t soothe any of the emotions in the crowd.  As I wrote on Facebook tonight, their idea of advocacy is ruling as tyrants in the Cabinet Room at the DOE Building once a month.  They are the most disconnected education group in the state, yet they have this power to make or break education.  All I see is a lot of breaking at the expense of Delaware’s students.  When the majority of the voices out there are telling you “this is wrong” or “don’t do this”, the State Board usually takes it upon themselves to ignore those voices and essentially do whatever Governor Markell tells Donna Johnson who then tells them what to do.  One member of the commission asked why the State Board brought up this whole “shall” and “may” stuff in Mid-February when they had the plan since December.  No response…

The districts were united in their response to the State Board’s change of the “shall” and “may” with no way!  They will have no part of an unfunded mandate that could eventually leave the citizens in their districts on the hook to pay for all of this.  Colonial Board Member Joseph Laws told Gray he thought it was ridiculous that the State Board would change those words based on the possibility of “tying the hands of the future State Board”.  He said the General Assembly and school board members pass laws, resolutions, and policies all the time.  Basically, and these are my words, it was lame of the State Board to change a whole plan based on future boards.

During the deliberation of the motion to send the original plan back to the State Board, WEIC member Rev. Meredith Griffiths told the group it should be about the students.  He felt if they send the plan back to the State Board where they will vote no on it again, it won’t help the students because the adults self-posture.  I see it as defending their local turf.  Had they done this during the Race To The Top days, things could be very different now.  Perhaps they have learned their lesson and we are seeing this now with the WEIC vs. State Board fight.

Bottom line: you can’t trust the State Board.  They are not publicly elected officials.  They are appointed by the Governor.  Granted, not all of the State Board members were appointed by Markell, but they have let him run the show since he became Governor.  And by using his puppet Donna Johnson to give the marching orders to the State Board, we get events like tonight.

Gray was not in her turf, so she couldn’t do her grand posturing and her bouts of Christina Derangement Syndrome the way she does in State Board meetings.  But make no mistake, beneath her calm demeanor, her arrogance could still be seen by all.  For the most part, Godowsky sat there stone-faced without much comment at all.  Our State Board of Education needs some major changes.  The trust in them is gone.  And I am still not convinced Godowsky’s changes in the DOE are enough to restore any semblance of faith in them as well.  At the end of the day, it is still Governor Markell’s commands being followed.  He may tweak those plans here and there in a vain attempt to restore public faith in his failed agendas, but the results are still the same.

If someone could please answer how the hell Donna Johnson still has her job I would greatly appreciate it.  How does someone advance from being on the Common Core math implementation team to the Executive Director of the State Board of Education in just a couple years?  It is my opinion, shared by many, that Donna Johnson abuses her power time and time again and no one at a state level who has the power to do anything about it does.  Like I said, we need drastic change in Dover.  The State Board’s incompetence at either passing or denying a redistricting plan is clear evidence of this, but this is just the culmination of years of their Markell-driven need for control.

 

State Board of Education’s Lightning Rod Letter To WEIC Questions Redistricting Plan

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The Delaware State Board of Education fulfilled their obligation to the Wilmington Education Improvement Commission by providing them a letter regarding their rejection of the final redistricting plan. There are serious questions as to the legality of the State Board’s actions at their meeting on January 21st. But in the meantime, WEIC is meeting tonight to go over the letter and plan their next move. The meeting will begin at 5:30pm at the Red Clay Consolidated School District office on 1502 Spruce Avenue in Wilmington.

Below are the letter the State Board sent to WEIC on 1/31/16 and WEIC’s response letter from the same day.

Perfect Timing On This State Board Of Education Legislation!

It’s the middle of the day.  You are at work and you start to wonder about something you read a couple days before.  It was something about education, something concerning students with disabilities.  Your son has a disability.  Oh yeah, it was concerning suspensions and expulsions.  You read it on some blog.  It was alarming to you because little Johnny has been getting in trouble at school.  You aren’t sure if it the disability or his bad manners.  He got suspended a couple times.  The State Board of Education was meeting right now to discuss a regulation about it.  The blog post rattled you a bit because Johnny could easily be one of those kids.  You wish you could go to the meeting, but you are out of vacation days and you certainly don’t want to use up your sick time to go to a State Board meeting.  If only they had these meetings later in the day…

Delaware State Representative Kim Williams introduced a bill yesterday that would allow the above worker to attend that State Board of Education meeting at 5:30pm or later.

HB260

I fully support this bill.  It would allow parents and teachers to attend State Board meetings without having to interrupt their day.  The State Board isn’t exactly a paying position either, so it would benefit the State Board members as well.  As well, many Superintendents and other school admins attend these meetings which takes time away from their school or district.  The timing is perfect on this bill!  As parents become more involved in education matters, it is important they have the opportunity to attend these kinds of meetings.  About 99% of Delaware school boards meet at night because they know parents want to come.  Why should our State Board of Education be any different?

There was a time when both the Delaware Department of Education and the State Board of Education did not hold as much power as they do now.  They were more of a compliance body as opposed to the policy setting machine they have become.  Even the role of the Executive Director of the State Board of Education didn’t have such a fancy title back then.  And that position certainly didn’t run the show like our current one does.  Please support this bill as parents, teachers, educators and Delaware citizens!