**UPDATED**Smyrna School Board Gets Slammed By Delaware Superior Court Over Due Process Violations, Called “Arbitrary & Capricious”

so disproportionate to the offense in light of all circumstances as to be shocking to one’s sense of fairness

The King of zero tolerance school boards in Delaware lost a huge appeal with the Delaware Superior Court.  After expelling a student in 2017, the student appealed the decision and the State Board of Education ruled in the student’s favor.  Not one to take anything laying down, the Smyrna Board of Education filed an appeal against the State Board.  They lost and they lost big time!

**Updated**, 1/19/19, 8:05am: Please see below for new information about this article.

Guest Post: “Kathleen Davies Vindicated But Delawareans Still Lose”

Last week, the News Journal reported Kathleen Davies won her Merit Employee Review Board appeal hearing.  She will be reinstated at the Auditor of Accounts office after a two and a half-year ordeal.  She ran for State Auditor but lost to opponent Kathy McGuiness in the September 6th Primary.  McGuiness won the General Election so the two women will soon be working in the same building.

Eric Morrison wrote a guest piece on this saga and what it means for Delaware:

Campus Community Loses Appeal In Federal Court Over Special Education Lawsuit

McAndrews Law Firm, a special education law firm with offices in Delaware, recently won a special education lawsuit that went all the way up to federal court.  I imagine the price tag, once calculated, will be very steep for Campus Community School, a charter school in Dover.

State Board of Education Overturns Smyrna Expulsion

In another Smyrna School District expulsion case, not related to that of Student J, the Delaware State Board of Education overturned that decision.  The family filed an appeal earlier this Spring.  The Hearing Officer recommended the State Board overturn the decision.  They did so at their July 27th meeting last Thursday.

It is my most fervent hope that between this and Student J’s case, the district will take a very close look at their expulsion policies which are among the highest percentage in Delaware for school districts.  I am not against expulsion if the violation is egregious.  But any expulsion is a very serious thing and should not be taken lightly.

This issue is on my radar and it does not just apply to traditional school districts.  I find “counseling out”, where some charter schools have “talked” a parent out of keeping their child in their school to be just as unfair as an unnecessary expulsion.  I will be keeping a very close eye on these kind of situations in the upcoming school year.  If any parent feels an expulsion was unjust, I encourage them to contact me.  As J’s mother quickly became aware, I will quickly intervene and attempt to help.

To read the full story of Student J in Smyrna, click here.

The Smyrna School District Zero Tolerance Pipeline Part 6: The HUGE Conflict Of Interest & Things Escalate

J was officially expelled from the Smyrna School District on September 21st, 2016.  But his mother was not giving up without a fight.  She told the administration this very thing at the discipline hearing two weeks before this.  So it wasn’t a shock when his mother filed an appeal with the State Board of Education.  Something happened soon after that raised serious questions as to the true intent of J’s expulsion.

Fraud & Cover-Up Evade Transparency Through Attorney General Matt Denn’s Office

A pungent stench is coming from Delaware Attorney General Matt Denn’s office when it comes to the Freedom of Information Act.  When the Delaware Attorney General’s office gets the facts wrong on a response to a FOIA complaint, the only way for a Delaware citizen to correct those errors is to file with the Superior Court.  Which costs money and fills the state coffers.  Can someone please remind me why I pay taxes for a state where our Governor feels “sunshine is the best disinfectant“?

The response I received two days ago from Matt Denn’s office stems from my FOIA complaint and the Delaware Dept. of Justice’s response to that FOIA which came out on October 28th.  The Delaware Pathways Steering Committee did not publish their first meeting anywhere and I filed a complaint.  Considering the DOJ is still working on a FOIA complaint I submitted last March, it seems there was a rush to put the matter concerning Governor Markell’s Executive Ordered Delaware Pathways Steering Committee to bed.

When I emailed Denn’s office to reevaluate the FOIA response the same day, I didn’t hear back from anyone.  On Tuesday I sent an email to Matt Denn asking for any type of response to my October 28th request.  On Wednesday, I received the below email from Kim Siegel, Denn’s FOIA Coordinator.  I did edit out part of the email which covered a separate matter I am working on with Denn’s office.

From: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
To: Kevin Ohlandt <kevino3670@yahoo.com>
Sent: Wednesday, December 7, 2016 4:04 PM
Subject: October 28, 2016 determination

Dear Mr. Ohlandt, 

Attorney General Denn has asked me to respond to the issues raised in your December 6, 2016 e-mail.  Your e-mail makes reference to an October 28, 2016 determination by the Chief Deputy Attorney General in response to a FOIA petition regarding the Pathways to Prosperity Steering Committee.  Under the Delaware Code, a petitioner who is dissatisfied with the outcome of a FOIA determination by the Chief Deputy Attorney General may “appeal the matter on the record to Superior Court.”  Therefore, if you wish to appeal the determination, that is the mechanism under Delaware law by which to do so.  

Sincerely,

Kim Siegel, MPA
Legislative Affairs Manager

FOIA Coordinator
Delaware Department of Justice

So if I am understanding this correctly, when a citizen alleges a public body has violated FOIA, which is the law, the public body can skirt around the law and give false information.  But when the citizen calls them out on it, through a request for appeal, suddenly the DOJ decides the law is important.  The mechanism for appeal is not fair at all to a citizen looking for transparency.

What is the point of a Freedom of Information Act request if the agency looking at it refuses to look at all the facts from both sides?  This is typically how it is done- a party files a complaint with the facts as they know them, the DOJ sends the complaint to the party that had the FOIA complaint filed against them, the defending party sends a response, the DOJ sends the defendant agency’s response to the accuser, and then the DOJ rules on the complaint.  I have had FOIA complaints in the past that dragged out because the DOJ wanted more information.  Apparently, that was not the case with this complaint.  The DOJ Chief Deputy Attorney General came out with this FOIA response in record time without any chance of obtaining more information on the matter.

So if I want to take this matter further, I have to file with the Superior Court.  How much would that cost?  According to the Superior Court website, it wouldn’t be cheap!

• $10.00 Court Security Assessment Fee
• $190.00 for the first 40 filings of an action
• $150.00 for request for a trial date which is non-refundable
• Fees do not include advertising costs which shall be billed directly to the filing party.

So right off the bat, filing an appeal against a FOIA response from Matt Denn’s office would cost me $350.00 which I would not get back no matter how the Superior Court ruled.  I could do this without an attorney and most likely get chewed alive by the DOJ’s attorney.  So I would probably have to get my attorney.  That would cost well over $1,000.00.  And that number would climb once it went to trial.

The transparency racket in Delaware is almost criminal.  In essence, it is a money-maker for the state in many situations.  I don’t have that kind of money.  Most Delawareans don’t.  Which is exactly what they count on.  When you file a FOIA complaint against a state agency asking for emails, the state agency knows they can say they don’t have the emails.  At that point, the state agency responds they don’t have them but the requesting party can file a $250.00 fee with the Department of Technology and Information to do a search for those emails.  Most people don’t have $250.00 they can just fork over like that.  And then the fees associated with reviewing the information.  Depending on what the party is looking for, this can climb into the four figure amount quickly.

Here is the bottom line: people don’t file FOIA requests if they think everything is hunky-dory.  They believe something illegal happened or is about to happen.  While FOIA responses from the DOJ don’t always rule there was a FOIA violation in a complaint, at times their reasoning is subjective.  The DOJ is not going to sue another state agency.  So if a citizen wants to take that extra step, they have to pay.  Even if the DOJ’s office gets information wrong, they appear to be above the law unless you take them to court.

It is the Department of Justice, not the Department of Covering Other State Agencies Asses.  But transparency is a fickle beast depending on who you want it from.  I guess us taxpaying citizens are not meant to know the truth about matters in Delaware.  It is bad enough Governor Markell can evade transparency by including a member of the General Assembly on an email (no member of the General Assembly is subject to FOIA), but it appears FOIA in and of itself is not freedom of information.  It should be called DOIA, the Denial of Information Act.

Last year, Delaware State Rep. Sean Lynn sponsored legislation which would have lifted the FOIA ban on the General Assembly.  It went nowhere.  Far too many of our legislators hide behind that privilege and are able to operate with no transparency.  And our state leaders take full advantage of this when possible.  The way Delaware code is set up it makes it impossible for a citizen to find out matters in the public interest.  When a citizen files a FOIA complaint with the DOJ, that office makes it impossible for a citizen to appeal that decision unless they pay money to the state.  Even if that citizen produces contradictory information which could easily give the matter further merit.

Until our legislators stop playing games with the truth, nothing will change with FOIA in Delaware.  We are just the pawns too many of them suck up to when they need our vote.  Once again, I say this with the caveat that there are some legislators who are good people.  But it rests with the leadership of the House and Senate as well as the committee Chairs.  If you have nothing to hide, there shouldn’t be a problem with making FOIA easier.  But it is more clear that fraud and cover-up exists at the highest levels of Delaware.  And when an education-sucking vampire like the Rodel Foundation gets thrown into the mix, all bets are off.

This is the email I sent to Delaware Attorney General Matt Denn when I submitted a request for appeal on the FOIA response from October 28th:

From: Kevin Ohlandt <kevino3670@yahoo.com>
To: Denn Matthew (DOJ) <matthew.denn@state.de.us>
Cc: Siegel Kim (DOJ) <kim.siegel@state.de.us>; Gibbs Danielle (DOJ) <danielle.gibbs@state.de.us>; OpenGovernment <opengovernment@state.de.us>
Sent: Friday, October 28, 2016 4:47 PM
Subject: This FOIA Complaint legal opinion issued today is just wrong.

Delaware Attorney General Matt Denn,

Good afternoon,

I am openly and publicly asking you to respond to this opinion issued from your office today acknowledging ALL the facts I presented in this article as well as the questions posed at the end of the article:

https://exceptionaldelaware.wordpress.com/2016/10/28/attorney-general-opinion-on-delaware-pathways-steering-committee-issued-today-is-sloppy-inconsistent-incorrect/

Thank you,

Kevin Ohlandt