Delaware Attorney General Matt Denn responded yesterday to State Reps. Potter, Bolden and Kowalko’s request for a legal opinion on the constitutionality of HS1 for House Bill 85. Denn offered valid legal reasons why he was unable to offer a legal opinion, but that he also agrees with the Enrollment Preferences Task Force recommendations for not having the 5 mile radius to begin with and believes all students within a district should be given preference to choicing into a charter school in the same district.
Yesterday, three Delaware State Representatives sent a letter to Delaware Attorney General Matt Denn. They are asking him for an Attorney General Opinion on HS1 for House Bill 85. Things just got very real with this legislation. If Reps. Potter, Bolden, and Kowalko didn’t do it, I would have suggested it. The five mile radius was bad enough. But then to purposefully select certain students from not being allowed to apply to a charter school in their own school district, that puts a very clear mark on this. It isn’t too late though. Delaware Senator David Sokola can choose to get on the right side of history and change the bill so Newark Charter School does take the Christina Wilmington students. Because anything else, under his prime directive, is outright discrimination and segregation. We all know it.
I will not bend to any political request on this legislation. I will not back away from what I originally published. To me, I could really care less about the politics. I don’t care if you are blue or red or purple. If folks want to put their name on this legislation, go right ahead. But I will not change my stance on this. Even if I admire and respect the hell out of some of you for various reasons and would fight like hell for bills that we do agree on, on this bill I will not budge. It is about doing what is right, for ALL students. Yes, the bill is progress, but not enough. We can agree to disagree on that. But I will not be party to political games and not publishing what I know in my heart to be true. It isn’t personal. It wouldn’t matter who sponsored this bill, I would feel the same way and I would have published the exact same article. Yes, I am aware some of the legislators flipped their vote because of how it would make them look. I am aware there was political fighting going on with this legislation. I was there for the whole thing. I opposed the bill when the House Substitute came in, and I made that very clear at the House Education Committee meeting when the bill was released. It isn’t a Democrat thing and it isn’t a Republican thing. It is a student thing. It is an equity thing. It is the right thing.
The Delaware Auditor of Accounts office released a report today on School District Tax Rates for the past two school years, Fiscal Years 2015 and 2016. It shows many school districts receiving more in taxes than they were allowed based on the tax warrants. While these were not huge amounts in many cases, a few districts raised red flags in my book.
But why is the tuition tax not included in this report? Why is their no inspection by the Auditor’s office to make sure those funds are allocated where they are supposed to and not elsewhere? This report is lacking in many details. While it caught a few things, it is not enough. Under Delaware state code, the Auditor’s office is failing in their fiduciary duty to perform what is required by the law. You can blame that on funding and staffing issues for the Auditor of Accounts office but if Delaware State Code indicates a state office must perform a duty necessary to adhere to state law, the General Assembly MUST fund that office so they are able to carry out those duties. Since they haven’t been, the General Assembly has been derelict in their duty.
What kills me is the end of the report:
This information is intended solely for the information and use of DOE and the management of the school districts. It is not intended to be, and should not be, used by anyone other than these specified parties. However, under 29 Del. C. 10002(1), this report is a public record and its distribution is not limited. This report, as required by statute, was provided to the Office of the Governor, the Office of the Controller General, the Office of the Attorney General, and the Office of Management and Budget.
So how many reports are out there that the public has not seen? I have a feeling it is quite a lot. I smell a FOIA coming because I want to see ALL the reports that are considered public but are not listed on the Delaware Auditor of Accounts website…
Updated, 3:13pm: This is listed on the auditor’s website, but after State Rep. Earl Jaques admission that he has seen annual audits performed by the Auditor’s office for each district, I have to believe there are a ton of reports the public never sees. Why all the secrecy?
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 <email@example.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.
Kim Siegel, MPA
Legislative Affairs Manager
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 <firstname.lastname@example.org>
To: Denn Matthew (DOJ) <email@example.com>
Cc: Siegel Kim (DOJ) <firstname.lastname@example.org>; Gibbs Danielle (DOJ) <email@example.com>; OpenGovernment <firstname.lastname@example.org>
Sent: Friday, October 28, 2016 4:47 PM
Subject: This FOIA Complaint legal opinion issued today is just wrong.
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:
Delaware Attorney General Matt Denn, along with the AGs from Massachusetts and New Mexico, filed an amicus brief for the upcoming special education case which will be heard by the United States Supreme Court. The Endrew F. v Douglas County School District is a case which can change the face of special education. But what about my kid right here in Delaware Matt Denn? The one who was kicked out of a special education program at a Delaware private school last Friday with no due process, no advance notification to the parents about the true purpose of the meeting, and no chance for my son’s voice to be heard?
For the most part, I like Matt Denn. I think he can be an excellent advocate for students with disabilities. But sadly, what he wants and what we have in Delaware are two very different things. I wish Denn could help my own son the way he is helping this child in Colorado. I understand the implications of this case and what it can do for special education if they rule in favor of the student. That would be a very good thing. But there are far too many students here in Delaware that are now suffering with special education. My own son Jacob included. If Delaware’s special education is supposed to be so great, why isn’t it Matt? We both know the answer to that. But why should my kid have to go through all venues of education in this state and still not have schools understand his needs? Charter, district, private school, private school homeschool-coop program. None have worked Matt. None. They may be great at other things, but they have all failed my son. As one father to another father, I’m asking you to do something here, in Delaware. In your state. Not later, not down the road, but now. I don’t know if I can get my son back on track. There has been so much damage done to him. By adults who think power is more important than what is right. Maybe you don’t know what it’s like to watch your own child’s spirit break time and time again. I truly hope you don’t. But I’m just one of many parents who has to pick up the pieces of a child’s shattered life again and again while the system fails him time and time again. It doesn’t matter what kind of school it is. I don’t care about all this fancy legal stuff. I just want consistency and best practices with my son, with all the special needs kids in this state. We are destroying lives here Matt. What are you going to do about that?
Talk is on thing but actions speak louder than words. How many more Jacobs do we have to have in this state Matt? How many more tears have to be shed before something is done? How many families have to deal with turmoil you can’t even begin to imagine Matt? How many more children have to be psychologically beaten down before you do something?
Delaware Files Amicus Brief Supporting a Colorado Student’s Claim on Behalf of Delaware, Massachusetts, and New Mexico.
Delaware Attorney General Matt Denn, joined by the Attorneys General of Massachusetts and New Mexico, filed a formal brief Monday with the United States Supreme Court supporting the appeal of a Colorado public school student with disabilities who claims that his school district has not complied with federal law in meeting his educational needs. The brief filed by Delaware urges the United States Supreme Court to adopt a higher national standard for the services that U.S. schools must provide, and articulates that the standard reflected in Delaware state law, rather than the lower standard used in Colorado and many other states, is the proper standard to measure the provision of such services.
The brief was written by Delaware State Solicitor Aaron Goldstein and Deputy Attorneys General Patricia Davis and Laura Makransky. The brief states that the three Attorneys General “implore this Court to find that the highest level of educational benefit for children with disabilities currently recognized by federal courts of appeal is the correct level for all of the nation’s children with disabilities in order to ensure that the [Individuals with Disabilities Education Act]’s ideals of equality of opportunity, full participation, independent living, and economic self-sufficiency are fulfilled.”
Although Attorney General Denn has joined other briefs filed with the United States Supreme Court since taking office in January of 2015, this is the first United States Supreme Court brief that his office has authored since he took office. “We chose this issue to seek to be heard with the United States Supreme Court,” Denn said, “because it is fundamentally important to the future of every child with a disability in our nation’s public schools. We also sought to be heard because how the Supreme Court phrases its opinion could also have a direct impact on students with disabilities in Delaware public schools.”
It sounds like Delaware Attorney General Matt Denn is finally clearing up the lingering messes from the charter school financial scandals. Dr. Tennell Brewington, the co-director of Family Foundations Academy, was arrested and charged on October 24th according to Jennifer Flueckiger with WMDT.
A Public Information Officer from the Delaware DOJ told 47ABC that Brewington was arrested on October 24, 2016, and charged with two counts of theft greater than $1500, two counts of unlawful use of a credit card greater than $1500, one count of unlawful use of a payment card less than $1500, and one count of official misconduct.
Yesterday, the United States Department of Justice dealt with a guilty plea from the other co-director of FFA, Sean Moore. He faces a potential prison term of thirty years. If I had to guess, Brewington’s charges from Delaware couldn’t come until she was cleared of any potential federal charges. Or perhaps they were waiting on Moore to give information when he was arrested in another state.
There is no word yet on Noel Rodriguez from Academy of Dover and Shanna Simmens from Providence Creek Academy. State audit investigations found they too stole money from schools. Justice may be slow at times, but it does happen eventually!
22 months after serious allegations arose regarding theft of school funds, justice finally caught up with Sean Moore. The former Family Foundations Academy co-director faced a federal judge today and said he was guilty. When any public schools gets federal funds and some of those federal funds are stolen, the feds get first dibs on prosecution. But Moore made it easy for them by pleading guilty today. He faces sentencing on March 2nd, 2017.
The Family Foundations Academy was probably my first really big investigative piece. It began during their charter renewal process in December of 2014 and stretched out the next few months. I don’t know how much my initial reporting on Moore and fellow co-director Tennell Brewington’s activities led to what happened today. The feds rolled these charges down a couple of months ago. So why did it take so long for Moore to enter a plea? From what I’m hearing, they had to find him first. That took some doing.
Moore’s fellow co-director, Tennell Brewington, is gainfully employed in Delaware. She was terminated from Family Foundations Academy when Moore took over the school during his brief coup-detat but she too was found to have stolen money from the school. Initial reports indicated she did not take as much money as Moore, but if she used any federal funds she too would face a federal judge. If not, I’m still waiting on Delaware Attorney General Matt Denn to do something. And what about Noel Rodriguez from Academy of Dover? I guess these things take time.
From the United States Department of Justice:
WILMINGTON, Del. – Charles M. Oberly, III, United States Attorney for the District of Delaware, announced today that Sean Moore, age 43, of New Castle, Del., pleaded guilty to three counts of federal program theft before U.S. District Judge Richard G. Andrews. Moore is scheduled to be sentenced on March 2, 2017.
According to court records and statements made in open court, between July 1, 2011 and January 31, 2015, while serving as the Director of Finance and Operations for the Family Foundations Academy, a charter school in New Castle, Del., Moore embezzled $161,871 from the school.
Moore accomplished this embezzlement in a number of ways. First, Moore charged personal expenses to an unauthorized credit card he opened in the name of the school. Moore also abused the State of Delaware’s voucher program, by which charter schools are permitted to submit qualified expenses for reimbursement, and the State of Delaware’s procurement card system, by which the State of Delaware issues credit cards to charter school administrators to purchase necessary school supplies. In addition, Moore stole money from the school’s fundraising account, which consisted of money collected from parents of school students, local sponsors, and an after-school program. Moore also took money from the school’s construction loan account.
Moore used the embezzled money for personal expenses such as retail purchases, home improvement purchases, electronics, auto loan payments, auto services and accessories, federal tax payments, groceries, entertainment, food, gas, travel, gifts and collectibles, shoes, hotels, jewelry, train tickets, and video games.
During this time, the Family Foundations Academy received significant federal funding, which provides the basis for the federal program theft charges. The maximum penalty for each count is ten years in prison followed by a three years of supervised release and a fine of $250,000.
This case is the result of an investigation conducted by the Federal Bureau of Investigation, the U.S. Department of Education – Office of the Inspector General, and the Delaware Attorney General’s Office, with assistance from the Delaware Office of Auditor of Accounts. Assistant U.S. Attorney Elizabeth L. Van Pelt is prosecuting the case on behalf of the United States.
I would like to know how Moore could settle with the Board of Directors at FFA over stolen funds. If he stole $161k in funds and settled with them for $67k, as per WDEL, that is $94,000 in lost education funding for Delaware kids. That is some serious coin. And Moore only paid back $13k of that settlement amount. But he will face jail time. That is all but a guarantee.
On October 7th, the Delaware Pathways Steering Committee held their first meeting with no public notice or an agenda put up 7 days prior to the meeting as required by Delaware state code. In August, Delaware Governor Jack Markell issued an Executive Order creating this public body. The only reason I found out about it was due to tweets from the Rodel Foundation and Mark Brainard of Delaware Tech. I promptly filed a FOIA complaint on October 11th. Seventeen days later, the Delaware Attorney General’s office has already responded to the FOIA complaint. To put this in perspective, I filed a FOIA complaint last March which just had the Attorney General opinion issued last week. BI submitted another FOIA complaint around that same time period and there has been no official opinion released from the Attorney General’s office. But Alison May from the Delaware DOE did respond in record time with their side of the complaint, but she has before. So why was this FOIA complaint rushed?
Below is my original request, the acknowledgment from the Attorney General’s office, the Delaware DOE’s response to the complaint, and the opinion on the FOIA complaint issued today. As well, I am including an email that was still in draft form disputing the facts provided by Alison May in the Delaware DOE’s response. I truly believed I had more time given the turnaround time on FOIA complaints coming out of the AG’s office but this one had a lightning fast response. Given the below findings and other inconsistencies with their opinion, I believe this was a very rushed job they wanted to put to bed fast. But that opens up a whole other can of worms…
Original FOIA Complaint, issued 10/11/16
From: Kevin Ohlandt [mailto:email@example.com]
Sent: Tuesday, October 11, 2016 9:23 AM
To: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
Subject: FOIA Complaint
I am submitting a FOIA complaint in regards to the newly created Pathways Steering Committee. This body came out of Executive Order #61, issued by Governor Markell on Thursday, August 11th, 2016. While there was nothing anywhere indicating they were holding a meeting, tweets appeared on October 7th suggesting the body met as a group. This is a state group, created by an elected official. Yet there was no posting of the meeting or an agenda. Attached are screen shots of the tweets posted by Mark Brainard and the Rodel Foundation of Delaware.
I take this violation very seriously. For a group that is supposed to be all about students, I find it ironic they would operate in secrecy with no ability for the public to attend. This does not translate into anything close to an open government.
9 Crosley Court
Dover, DE 19904
On October 12th, the Delaware Attorney General acknowledged receipt of my FOIA Complaint
October 11, 2016 Correspondence Regarding the Pathways to Prosperity Steering Committee
Mr. Kevin Ohlandt
9 Crosley Ct.
Dover, DE 19904
RE: October 11, 2016 Correspondence Regarding the Pathways to Prosperity Steering Committee
Dear Mr. Ohlandt:
This will acknowledge receipt of your correspondence regarding the Pathways to Prosperity Steering Committee (the “Committee”), received on October 11, 2016, alleging certain violations of the open meetings provisions of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”). We treat your correspondence as a petition for determination pursuant to 29 Del. C. § 10005. We are forwarding your correspondence to the Committee’s counsel, asking that they respond to your allegations by October 19, 2016. When we have received the Committee’s response, we will determine whether additional information from either party is required and decide what further action, if any, is appropriate.
Very truly yours,
/s/ Kim Siegel
cc: Danielle Gibbs, Chief Deputy Attorney General (via email)
Michelle E. Whalen, Deputy Attorney General (via email)
Meredith S. Tweedie, Esq. (via email)
The Delaware Department of Education’s Response to the FOIA Complaint, 10/19/16
Issued today was the official opinion from the Delaware Attorney General’s office:
16-IB23 10/28/2016 FOIA Opinion Letter to Mr. Kevin Ohlandt re: FOIA Complaint Concerning the Pathways to Prosperity Steering Committee
This is the draft I was working on to send to the Attorney General’s office that I believed I had more time to formulate:
October 26th, 2016
Good afternoon Ms. Siegel,
In reviewing Alison May from the Dept. of Education’s response to my FOIA complaint from October 11th, in the letter provided from her on October 19th, she states the following:
…and the draft minutes of the October 7th meeting (attached hereto, along with the other documents discussed at the meeting) will be posted online by the end of this week.
The DOE provided no explanation as to why the notices and agendas were posted less than seven days in advance of the meetings, and it concedes that the postings did not comply with FOIA. The DOE also explained that no action was taken by the AFWG at either meeting. The DOE apologized and said it would “endeavor to determine the agenda of any future AFWG meetings as of the time of any required public notice of them, and include the agenda in any such required notice.
By letters dated July 31 and August 1, 2012, the Governor extended invitations to a number of individuals to participate in the Working Group as representatives of several public bodies, including the General Assembly, the Department of Education and the State Board of Education, and various private stakeholder groups (the “Invitations”).
On June 10, 2013, you filed this appeal seeking access to the Working Group’s meeting minutes. We received a response on July 11, 2013. The response indicates that the Working Group did not consider itself to be a “public body” within the meaning of section 10002(h), due primarily to the informal nature of the Working Group.
FOIA, with certain exceptions not relevant here, establishes a public right to inspect all “public records” and requires that all meetings of public bodies be open to the public.4 FOIA’s “open meeting” provisions call for advance notice to the public of all public meetings and require public bodies to prepare and make available to the public agendas for and minutes of their public meetings.5
Section 10002(h) provides substantial guidance as to the types of entities and bodies encompassed within the phrase “body of the State.” That concept, as used in FOIA, includes, among other things, any “group . . . appointed by any . . . public official of the State” that was “impliedly or specifically charged” with making recommendations.9 The Working Group was a “body of the State” within the meaning of section 10002(h).
But the key part from this opinion rests on the following and is key to my own FOIA complaint:
First, this Office consistently has rejected arguments that FOIA’s applicability hinges on adherence to formalities in the creation of a public body, lest FOIA’s goals of openness and government accountability be subverted.14
This was where my draft ended which I fully intended on doing further research on in the next week.
Now here are my issues with the Attorney General’s response to the FOIA complaint. First off, in Alison May’s response from the Delaware DOE, she said it was under the Delaware Dept. of Education’s control to issue the agenda. However, in the link on the FOIA complaint, we see an Agenda created on 10/17/16, ten days after the meeting, and it was issued from Governor Markell’s office, not the Delaware DOE. Furthermore, if this was indeed a public body, why was there no agenda item for public comment? As well, the minutes submitted by Alison May in the DOE’s response to the FOIA complaint are actually different than those that appear on the Googledrive website.
In the original minutes, submitted with Alison May in the Delaware DOE response to my FOIA complaint, it states the following:
Dr. Brainard charged Mr. Rhine to conduct outreach to Steering Committee members to review the draft strategic plan and collect additional input;
Dr. Brainard charged Mr. Rhine to develop a transition report for partnering state agencies to be used as a transitional tool in planning for the next executive administration;
Mr. Rhine will conduct outreach to Steering Committee members to review the draft strategic plan and collect additional input;Mr. Rhine will develop a transition report for partnering state agencies to be used as a transitional tool in planning for the next executive administration;
Moreover, as you note in your Petition, certain members of the Committee published photographs of its meeting on social media either, contemporaneously or immediately following the meeting. We find this to be inconsistent with an intentional failure to adhere to FOIA’s open meetings provisions. We see no evidence of an intent – by the Governor or any other Committee member – to circumvent FOIA. Nor do we see an ongoing pattern of FOIA non-compliance which might warrant extreme remedy.
Here is a newsflash for the Attorney General’s office: having a non-profit foundation and a member of the committee post tweets about a non-transparent meeting of a public body issued by a Governor’s Executive Order, does not point either way towards an intentional failure to adhere to FOIA’s open meetings provisions. What it shows is someone tweeting. So to give this extra bearing in a legal opinion about something that was already established to be under the Delaware Dept. of Education’s responsibility is misleading at best.
It’s about time! After almost two years of waiting for Sean Moore to get charged with something, information comes out that he is being charged by the feds for theft. This very quick blurb in the News Journal states Moore has three federal counts against him. As most folks in Delaware know, Moore, along with his co-charter leader/co-conspirator Dr. Tennell Brewington, both formerly with Family Foundations Academy in New Castle, DE, got busted after a forensic audit showed they spent over $150,000 in school funds for personal use. They were terminated and the school could have closed if a nearby charter school didn’t essentially take them over.
I was curious why Moore was charged by the feds and not Brewington. Either they haven’t announced anything for her yet or her theft of taxpayer money for personal use didn’t involve anything with federal dollars.
Now we just have to wait for the other former charter thieves, Noel Rodriguez of Academy of Dover and Shanna Simmens of Providence Creek Academy, to get their charges. Delaware Attorney General Matt Denn hinted to me almost a year ago that “other parties” were looking at these situations. As I waited and waited, with nothing coming out, I took it upon myself to contact the FBI about this earlier in the spring. I imagine Denn’s hands were tied once the feds became involved and he obviously couldn’t say anything concrete about it. I’m glad he was on the up and up about it though.
This is the only information I could find on these charges, but it looks like the Associated Press picked up on it because the same story appears in the Washington Post and many other media outlets. There is an important lesson here: don’t steal from kids. This is what happens when you get caught! As more information on this becomes available I will certainly give updates. I can’t find the actual court filing yet, but once information becomes available, you will know!
Newark Charter School found a way to overtly break Delaware charter school laws and they are using parents and students to do it.
Yesterday, an anonymous source informed Mike Matthews that Newark Charter School’s student body activity funds are legit. Be that as it may, they aren’t reporting the revenue generated from these activities. Instead, they are putting at as an expense on their monthly budget. They aren’t reporting this revenue anywhere. But they are showing the expense on their monthly budget. How much are they getting overall? That is unknown, but I was able to find out they are using student body activity revenue to pay for items they should not be according to Delaware law.
Newark Charter School does not post a 990 IRS tax form on their website. They are exempt from even filing this return. Why? Because way back during the Bill Clinton years, they had elected officials on their founding board. Granted, none of those elected officials are there anymore. No one has ever questioned NCS at a state level about this before and they just assume it is alright. Even though the IRS issued very specific guidance to charter schools about this type of exemption. But of course Newark Charter School takes advantage of this ambiguity. Until the IRS determines they are not exempt, they will continue to not file tax returns. Even though they should and the reasons for them not doing so are the most ridiculous thing I’ve ever heard. On IRS 990 tax forms, non-profit corporations are required to show any revenue they receive. They don’t have to pay taxes at all, but they are required to show their numbers.
There are a multitude of reasons why Newark Charter School would not want to file an IRS tax return. They are the only Delaware charter school specifically exempt from this. Academy of Dover had their corporation status rescinded by the IRS some years ago, but the Delaware Dept. of Education turned a blind eye to this glaring fact during the school’s formal review last year which was in part over financial viability. Eventually, Academy of Dover was able to restore this status and are now filing their 990 forms on their website. But Newark Charter School took advantage of the bogus loopholes in this IRS regulation and have had a field day with it ever since.
This was my biggest issue with any changes to House Bill 186, the original charter school audit bill. My sense was that anything even associated with charter school audit legislation would only be tainted by Senator David Sokola. This would somehow benefit Newark Charter School and keep their finances in the dark. Anyone can make a budget and show numbers on it, but a true audit and an IRS return would show a lot of information. They would have to report the revenue they receive from students or their parents for field trips and student body activities. But they aren’t. No one can see this information. If they get such a huge amount of money from these activities, they should be fully transparent and post their revenue stream on their website. But they don’t.
On their monthly budget sheets they are required by state law to post on their website each month, they list student body activities as part of their operating budget. Operating funds are part of state and local funded expenses. If they have students pay for field trips and they write a big fat check to, say, the Bermuda Institute, and put that as an expense in their budget, that means they are getting these funds from the state and local funds. Granted, their budgeted amount for student body activities in FY2016 was $300,000 as shown in the below pictures. But their budget forms the picture of how much money they will need to operate as a school. This is the spine of any charter school or district’s operations.
Newark Charter School 7/2015 Monthly Budget: Revenue
In the above picture, we see the school’s projected revenue for FY2016 as of July, 2015.
Newark Charter School 7/2015 Budget: Expenses
Above, we see their projected expenses. Note the Student Body Activities amount of $300,000.
Newark Charter School 6/2016 Budget: Revenue
By June of 2016, their revenues looked completely different.
Newark Charter School 6/2016 Budget: Expenses
Their expenses, especially Student Body Activities went up as well, mushrooming to over $445,000. This was $145,000 over what they budgeted for this category. As if it was almost planned…
This brings us back to the current situation at the Delaware Auditor of Accounts office. As I wrote earlier this week, there is some shady business going on there. Kathleen Davies had my tip about NCS and Academy of Dover’s lack of IRS 990 forms and I believe it was an active investigation. I know this because I received a call from John Fluharty about it in March, two months before Davies was put on “leave”. He wouldn’t call to get information if it was not active. If that office was leaning towards NCS needing to put up their 990 tax forms, invariably the inspection would lean towards “Why aren’t they putting up this information?” which could further lead towards a full investigation of their finances.
Senator David Sokola has been the Senator for the 8th District since 1995. This district surrounds most of Newark Charter School’s five mile radius. Sokola helped in the creation of Newark Charter School. He even joined their board for a stint in the mid 00’s while also an elected Senator, which is perfectly legal in Delaware. But in his stint as a Delaware Senator, he has essentially served as a buffer between the school and true accountability. Sokola is a senior-ranking Delaware Senator. Not only is he the Chair of the Senate Education Committee, but he is also the Senate Chair on the Bond Committee. If you look at a lot of the legislation about education he writes, every single bill has benefitted Newark Charter School in some way. I’m sure if you look at some of his non-education legislation, including ones about land usage, those would benefit the school as well. This isn’t the first time I’ve thought out loud about Senator Sokola.
In my fictional novel I am working on about Kathleen Davies and whodunit, I would put Senator Sokola as the lead suspect in this mystery. He has the means, the motivation, and the pull to get something like this done. He is well-connected with the Delaware Charter Schools Network and Rodel. Since he is also in tandem with many House and Senate Republicans over charter schools, it would stand to reason he would lend his ear to them and get a fire going. As well, he has a very cozy relationship with the State Board of Education Executive Director Donna Johnson and Delaware Secretary of Education Dr. Steven Godowsky. As the Chair of the Senate Education Committee, this is to be expected, but he always seems to be able to get support for his bills that do more damage to public education. His connections with the Delaware Charter School Network go back many years. He has frequently been involved with the Rodel Foundation sponsored Vision Coalition. He is a firm believer in standardized testing and teachers being judged by those scores. He put in very damaging amendments to House Bill 199 a couple months ago based in large part on feedback he received from his beloved Newark Charter School. He is no friend to traditional school districts. As the Newark Charter School legislative cheerleader, he can count on votes from his constituents who have students attending that school. With a student population of over 2,000 students, that is a lot of votes. In exchange, he allows them to operate with no transparency, accountability, or oversight through his legislative input.
Now some will say Tom Wagner is a staunch Republican and Sokola is a Progressive Democrat! How could Sokola convince Wagner to do anything? He didn’t have to. Somehow, someway, the “whistleblowers” in the Davies complaint to the Office of Management and Budget were told exactly how to get Davies. This idea had to come from someone with advanced knowledge of the rules and regulations of the Delaware accounting procedures and policies. We know Newark Charter School knew about what was going on with Davies and her “administrative leave” from the Auditor of Accounts office based on what they put in their June Board meeting notes:
In Delaware politics and education, there is no such thing as a coincidence. The fact Schlossberg would bring this up a month after Davies was put on leave is very telling in my opinion. We know the Delaware DOE already knew about all this because one of their employees told me about in late May. So if that person would tell an education blogger, it would stand to reason many in the state knew as well. NCS, in their board meeting minutes over the past year, has been very diligent about discussing legislation that could impact charter schools (especially the charter school audit bills). But to write about how Davies was specifically put on leave, something I wasn’t even aware of until last Saturday when the News Journal came out with their article, would suggest having very intimate knowledge of the case against Davies. So much so that they wanted to adopt this into their board policies. The News Journal article never even specified if their information was coming from their “sources” or the Office of Management and Budget.
NCS connection with Sokola would give them instant knowledge of anything going on at a statewide level. But this has always been my big question about the charter school audit bills: why were they fighting them so hard? Especially Newark Charter School? Some answers can actually be found in the oddest of places. Newark Charter School’s selected auditor for their annual required audits is Barbacane Thornton and Company. As seen below, they do this work for many Delaware charter schools.
In looking at this list, I see quite a few charter schools who have landed in hot water at the State Auditor of Accounts office: Academy of Dover, Delaware Military Academy, and Providence Creek Academy. One of their lead accountants, Pam Baker, testified in opposition to Kim William’s third attempt at a charter school audit bill, House Bill 186, in June of 2015:
She said this bill takes away responsibility from the board to select (an) independent auditor and takes away the opportunity for charter schools to do that effectively.
Now why would someone who is hired by many of these schools to do their audits put her neck out there for schools she knew were under investigation? As well, her statement basically said “they may not be able to hire the firm I work for” which would show a clear conflict of interest in her sworn testimony. A lobbyist for the Delaware Charter Schools Network even spoke on behalf of the business office of Newark Charter School at this meeting:
Nitin Rao, DCSN, spoke on behalf of the business manager of Newark Charter School in opposition to the bill.
For a school that seems to have a great deal of extra revenue after their year-end expenditures each year, this was a head-scratcher. Like many who felt the same way, I questioned whether the charters opposition stemmed from the cost involved with the legislation or more what these new audits through this legislation would find.
But what Kathleen Davies said at this meeting was the essential problem with the charter school audits in Delaware:
Kathleen Davies, Chief Audit Administrator at AOA, said AOA does not have any firms under contract that conducted any charter school audits. She rebutted that the IRS filing mentioned by Pam Baker is a non-audit service and those fees are not part of the audit work. She said there have been a lot of terms thrown around and the only requirement for charter schools, with regard to oversight, is GAP compliant financial statements. She said there are currently seven investigations on charter schools underway because of mismanagement of funds. She said fraud and abuse were never brought to anyone’s attention for these seven schools. She said AOA has subpoena power and a firm, under AOA contract, can be used to address the issues found. She said those seven charter schools got a “clean bill of health” with no findings and no body to identify issues. She said this bill would change that.
Notice Davies brought up IRS filings. As we all know, Newark Charter School doesn’t even have to file with the IRS because of their “special” exemptions. IRS filings require all sources of revenue. Which brings us back to Student Body Activities.
If student body activity expenses are an item in the school operating budget, they are counting on this money from the state and local funds. But the issue comes in when these student body activities are pre-planned field trips and events that students or parents pay for prior to the actual event. I can certainly buy the notion that teachers or the school would have to pay for many of these events ahead of time. And as Head of School Greg Meece is the only person in the school who has a state procurement card, teachers or the school would have to pay out of pocket ahead of time for these activities. But to spend $445,000 in student body activities for a school population of over 2,100 students, there would be a bucket load of revenue coming in from field trip money. This is the revenue we are not able to see. At all. Anywhere. Trust me, I looked. All over the place. There is nothing on Delaware Online Checkbook showing any such revenue. If this revenue was put back into the school, we would see it as negative amounts in their expenses. But they don’t exist through the state accounting system. Therefore, they are only showing the expenses of student body activities and not the income that comes back as revenue to offset those costs.
Without knowing exactly where they put that revenue, I can safely guess where they put the entire $449,575.29 they reported as “student body activity” on Delaware Online Checkbook. They used that revenue to pay for the remaining amounts on two capital building projects they contracted with one company to perform.
In the fall of 2014, Newark Charter School started talking about building a Performing Arts Center and a STEM Laboratory Suite. Since these are capital projects, not minor capital improvements, they would not be able to get funding from the state as dictated by the Delaware charter school law.
So even though Newark Charter School received $273,447 from the General Assembly for FY2016 for minor capital improvements, they could not use it for projects of this magnitude and scope. Since the Performing Arts Center would be an entirely new addition to the school and the STEM labs would require structural change to the building, these two projects did not qualify for minor capital funding. So how much capital funding would they need to obtain for this project? Quite a bit according to their application for the Delaware Charter School Performance fund in the Spring of 2015.
As part of Delaware charter school law, NCS had to submit a minor modification request for these projects. They did so, and it was approved by then Secretary of Education Mark Murphy according to their December 2014 board minutes:
But in their application for the minor modification, Meece either greatly underestimated the costs for the project or later added more bells and whistles to the whole thing. Because the original projected amount was $853,088. At no point in time did NCS resubmit a new minor modification based on the financial difference between the original amount and the projected amount, a difference of $636,061. But the section of the application where it asked about financial impact on the school was very enlightening:
Greg Meece and Joanne Schlossberg, their Business Manager, knew they would have to get a lot of money for this project and began working the foundation circuit. They were able to obtain funding from the Longwood Foundation ($500,000), the Welfare Foundation ($125,000), and the Calder Foundation ($79,000). They applied for $400,000 in the Charter School Performance Fund (even though the maximum amount any Delaware charter school could win was $250,000 that year). They received the maximum amount of $250,000. Even though they were able to generate a lot of funding in a very short time, they were still short from the budgeted amount. By $535,149.00. Since construction was already underway by this point, the school had to raise the remaining funds for the projects or use funds from their reserves.
In June of FY2015, the board’s treasurer stated the school was $668,000 favorable for revenue “due to the annual fund and pledges from the capital campaign”. The school received the Longwood Foundation grant in June of 2015. In July of FY2016, the treasurer stated the school was not $1,283,000 favorable in state revenue due to the grant funds received from the Longwood Foundation and the Welfare Foundation in FY2015. As well as the other grants they received in June of 2015, they received the $79,000 grant from the Calder Foundation and $250,000 from the charter school performance fund in July of 2015. At their September 2015 board meeting, it was announced the funds received from the Longwood and Welfare Foundations were received in FY2015 so they could not put this as revenue in FY2016 even though they budgeted these funds for FY2016. This caused their revenue to be unfavorable in the amount of $961,000. But they were going to amend their budget to make this happen. While a lot of these revenue figures are all over the map, it is important to look at the $668,000 talked about in June of 2015. If the school already had pledged amounts coming from the Longwood and Welfare Foundations totaling $625,000.00, it would stand to reason their remaining “favorable revenue” came from their annual fund. Which leaves $43,000 they had remaining from their FY2015 annual fund which they committed towards this project. This reduced their shortage for the two projects to $449,149.00.
Earlier this week, I posted an article about Student Body Activity funds and questioned why Newark Charter School is showing such a high amount for this. Based on this article, I showed how a FOIA received by a Delaware citizen showed NCS as spending $445,000 in student body activities as of 7/2/16. As of 8/2/16, that amount increased to $449,557.29. Now if you notice the projected amount for the STEM Laboratory Suite in the above picture, that amount is for $449,588. Almost the exact same amount as the expenditures for their student body activity. If this fund is meant for just student body activities, they should not be going towards capital costs, such as the creation of a STEM Laboratory and a Fine & Performing Arts Center. Delaware law is very specific about this and the business manager and Greg Meece are well aware of these laws.
How much did these two projects actually cost Newark Charter School? $1,512,599.08. They contracted with Daystar Sills, a construction company in Delaware. The difference between the projected amount in their charter school performance fund application and the actual amount was $23,540.08.
If you add up the following figures:
$43,000 from their FY2015 Annual Fund
$500,000 from Longwood Foundation
$125,000 from Welfare Foundation
$79,000 from Calder Foundation
$250,000 from Charter School Performance Fund
The total amount is $997,000. Which leaves them very short of the eventual $1,512,599.08 those projects were going to cost. We know, as of their November 2014 board minutes, the school received $64,000 from an auction they had. This was their 11th annual auction.
They had their next auction in November of 2015, but at their November 2015 board meeting, Greg Meece did not give an amount of how much they generated.
By not publicly mentioning how much they received in their FY2016 auction, they could leave this open for future use as they saw fit. Since there was never a capital fund amount given, we would have to assume it was close to the amountselaw they received in prior years.
Since they are so short on this capital project, and we don’t know where the money is coming from to pay for the rest, watch what happens when we add this to the $997,000:
$449,575.29 from FY2016 Student Body Activity expenses
We now get a grand total of $1,446,575.29. They are still short $66,023.79. We can safely guess where those funds came from based on their FY2015 Audit with Barbacane Thornton & Company:
Note how NCS received $77,226 in pledged monetary support in FY2014 and $67,812 in FY2015. It would stand to reason they used their FY2016 pledge amount to supplement the rest of this bill from Daystar Sills. The school could never use extra local reserve funds because those funds could only be used for operating expenses or minor capital improvements based on Delaware charter school law. They could not be used for capital building projects. Meece knew this, and Mark Murphy should have. The fact that Meece applied for a minor modification for this huge project and didn’t know the true estimate of the costs, didn’t have the capital funding when he applied for it, and operated on the assumption that Mark Murphy would just take it at face value that the school could always fall back on local appropriation reserves speaks volumes about the arrogance behind Newark Charter School. Meece and Schlossberg, in my opinion, knew exactly what they were doing with all of this. They knew the project would be short and planned ahead of time.
In June of 2015, they budgeted $300,000 for student body activity. This would have been a very good guess on the amount they would need to pay towards the final bill for this project. Because at that time, they somehow thought they could get $400,000 from the charter school performance fund. This turned out to be a huge error on their part because they had to somehow find a way to get another roughly $150,000 when they only got $250,000 from the performance fund. This is how their Student Body Activity expense amount went from a budgeted $300,000 to a little bit shy of $450,000. They actually planned for this amount, in my humble opinion, based on how the project was turning out. Once they realized their error with the performance fund, they got to work.
To use a shell student body activity account to pay for Capital projects is an obvious violation of Delaware state law. To never report the revenue they received from parents and students should be a violation of state law. To use parents and students money to disguise illegal activity is fraud, pure and simple. Because I am not a judge or a jury, I cannot say with 100% certainty this is exactly what Newark Charter School did. If I were writing a fictional novel, either as part of the Kathleen Davies whodunit or a new one on Newark Charter School, because no criminal charges or official allegations of wrongdoing have been laid out by any type of legal authority in the State of Delaware, I would say there is most likely a strong connection to this activity going on at Newark Charter School and Kathleen Davies eventually being put on leave. I believe NCS knew there was an investigation going on with their IRS 990 forms. I believe they knew their exemption was a glass house that would eventually have many stones thrown at it. While I don’t think it was a case of Senator David Sokola going to Tom Wagner and saying “You have to stop this audit inspection cause my buddies at Newark Charter School could get in trouble”, I do believe the goal was to slam the character of Kathleen Davies. By doing so, it would undermine the audit inspections she already completed (the September 30th Enrollment Count inspection and the Millville Fire Department audits which were either pulled or redone). As well, it would cast a doubt on audits already underway. I believe the right amount of pressure was put on Tom Wagner by the Office of Management and Budget to get Davies put on leave. Aside from the false accusations of Davies abusing the travel reimbursement accounts by not using the state procurement card, there had to be a confrontation to push Wagner towards that decision. The accusations by itself wouldn’t be enough. There had to be that one final straw.
The Delaware Department of Education wanted the September 30th Enrollment Count done. When the report came out, they disagreed with Davies recommendations in the report. They complained to Wagner. This I do know. What happened next, I can only surmise. Wagner wanted Davies to change the report. Davies said no. Boom.
Once Davies was gone, Wagner could kill the petty cash audit which would have shown charter schools abusing the petty cash policies in the state. He did that and instead sent letters to all the charter schools that violated the petty cash policy with no ability for the public to see those letters. He pulled the September 30th audit. He took out Davies letter at the end of the Millville Fire Department inspection report. We don’t know what is happening with the Newark Charter School IRS 990 Form Audit Inspection. I have to assume we will never see it. Unless someone gives a very good reason why the school would strongly benefit from not filing such a tax return. Someone would have to show how they hide things financially so they can get what they want. Then Tom Wagner’s office would have to act fast and get into that school and investigate ALL of their finances, from top to bottom. He would want to subpoena all of their bank deposits. He would have to turn the information over to the Delaware Attorney General’s office and in an ideal world, that office would act on that information. If any federal funds were found to be abused in the findings of this investigation, the FBI would have to get involved. Since this school has been around fifteen years with no IRS tax filings, I would assume the FBI would be very interested in how much revenue this Delaware corporation has received and would want to account for every single penny going in or out of the school. If the FBI didn’t have anything to go on, I would have to imagine the State of Delaware would based on the information they would get out of their investigation. Not to mention the very shady and scummy enrollment practices this school has had over the years in their attempts to have perfect high-stakes test-takers. In their isolated and non-transparent world with a five-mile radius around the flagpole at their high school, some of which goes into a neighboring state, but determines what students can or can’t go to their elite wannabe private school. Where parents can afford to pay for extravagant field trips because they don’t have to use those funds for a private school because this school is so perfect. In an ideal world, we wouldn’t have this. But this isn’t an ideal world. This is Delaware.
I have no doubt Newark Charter School is not alone in Delaware with these kinds of financial games. I think it has happened quite a bit, and not just in charter schools. I think it has happened in our districts as well. Maybe not the same chess move NCS pulled on this one, but other moves designed to give an advantage of some sort. We’ve seen it before and we will see it again. Until someone turns the board over and makes new rules for the game. That is what needs to happen in Delaware. This is my mission and others have this vision as well. We keep waiting for someone in power to step up and do the right thing. All we hear is silence.
To see the full FY2015 audit for Newark Charter School, please see the below report:
Delaware State Auditor Tom Wagner has a lot of explaining to do. And possibly Governor Markell as well!
Things are getting a bit clearer now. On the Kavips blog, Delaware State Representative Kim Williams wrote a comment on Kavips take on the Kathleen Davies situation playing out at the Delaware Auditor of Accounts office. She wrote about how she contacted the auditor’s office last September regarding some concerns she had with a Delaware charter school’s petty cash activity on Delaware Online Checkbook. The report was near completion prior to Kathleen Davie’s abrupt “leave of absence”. Williams even had a comment she approved that would have appeared in the petty cash audit inspection.
Williams emailed Delaware State Auditor Tom Wagner to find out the status of it following Davies’ leave. Wagner told her he stopped the audit and issued letters to all the charter schools instead. Really Wagner? I know which school Williams found on the petty cash situation. When the Charter School of Wilmington wrote in their board minutes that the auditors were there to review their petty cash accounts, I knew something was up. So I checked all the charter schools petty cash activity. Some of them were quite egregious compared to what they are allowed to have in those accounts. But I figured I would wait to see the report before I wrote about it. In other board minutes, CSW board members asked where the audit was and they were going to contact the auditor to find out. I find it very interesting they chose to write about this one particular audit, not once, but twice.
So now we have an elected official voluntarily choosing to cover up information. This makes the very bizarre action against Davies’ look even more suspicious. Who knows what other activity is being “stopped” by Tom Wagner. Lord only knows how much else she found. We also have the woman who was in charge of the Office of Management and Budget involved in this scandal as well. Ann Visalli reported to one man, and one man only… Delaware Governor Jack A. Markell. We have an obvious set-up against Davies with a lot of BIG Delaware power figures involved. I hope her attorney eats them up!
Hey… Tom Wagner… where is the audit on Delaware Met? Where is the audit from the tip I submitted about Academy of Dover and Newark Charter School? What other audits are you cancelling? Why do you keep ignoring emails from constituents like Jack Wells and myself? What do you do all day? Who got you to stop audits showing abuse of taxpayer money? Is there an Indian River audit taking place given the firing of their CFO? Mr. Wagner, do you know what else I’m finding?
Hey, Delaware Attorney General Matt Denn… when are you going to announce charges for the charter school employees that were caught? And that Indian River guy? Are you waiting for Markell to leave his post? Or for the statute of limitations to run out on these thieves? I know the FBI are aware of this because I let them know just in case Delaware didn’t. That was in April.
If I were writing a mystery novel about this, hypothetically of course, I would have to name suspects in a crime. Keep in mind this would be a fictional story because no one has been charged with anything (including former charter school employees who were nabbed by the auditor’s office, but I digress). I would have to look at who opposed Kim Williams’ original charter school audit bills. That would be Kendall Massett (Director of the Delaware Charter Schools Network), a lot of House Republicans, Senator David Sokola, Donna Johnson (Executive Director of the State Board of Education), Nitin Rao (the business manager of Newark Charter School), and Democrat State Representative (and Chair of the House Education Committee) Earl Jaques. Oh yeah, Speaker of the House Pete Schwartzkopf voted no on that one too! Chuck Taylor with Providence Creek Academy (also the President of the board over at the Delaware Charter Schools Network and a member of the Charter School Accountability Committee at the Delaware DOE) had parents from his school send emails to the House prior to the vote opposing the legislation. And we can’t forget Ann Visalli! And some guy named Henry Clampitt who was doing work with Kendall’s group also opposed it at the Senate Education Committee meeting on it last January. I would have to imagine many other charter school leaders were not happy about the bill either. This is a big list of whodunit suspects! Did they act in concert in this imaginary thriller? Or did someone fly solo? I can’t wait to write the ending to this mystery! I imagine all these suspects could feel the noose tightening around them right about now. In this fictional story of course!
I sure hope someone was able to get their hands on all those letters sent from Tom Wagner concerning the petty cash audits that went out to various charter schools…
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
411 Legislative Avenue
Dover, DE 19903
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
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. 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 ….”
“Every meeting of all public bodies shall be open to the public except those closed [for a permitted reason].” “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.
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.”
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. “‘[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.’” The standard for any individual meeting is reasonableness under the circumstances.
FOIA does not require the public body to predict the exact number of citizens who may attend a public meeting. 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.” A venue that may be reasonable at the time a meeting is noticed may become unreasonable due to an unanticipated overflow at the meeting. 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.”
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, 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.
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….” Moreover, “conversations with each other or with staff do not need to be public unless they include a quorum of the members.” 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.”
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.
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.” 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
Chief Deputy Attorney General
cc: Patricia A. Davis, Deputy Attorney General (via email)
 The Factual Background Section of this Opinion refers to your communications as made by “Representative Williams” for ease of future reference by third parties.
 There is no evidence in the record that the DOE asks all attendees to sign-in at meetings.
 29 Del. C. § 10001.
 29 Del. C. § 10004(a).
 29 Del. C. § 10002(c).
 29 Del. C. § 10004(c).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002) (quoting Del. Op. Att’y Gen. 96-IB23 (June 20, 1996)).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).
 Del. Op. Att’y Gen. 98-IB12 (Nov. 10, 1998).
 Del. Op. Att’y Gen. 02-IB09 (Apr. 4, 2002).
 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.
 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).
 29 Del. C. § 10002(g).
 Del. Op. Att’y Gen. 10-IB12 (2010). See also Del. Op. Att’y Gen. 16-IB05 (2016).
 Del. Op. Att’y Gen. 10-IB12 (2010).
 See Del. Op. Att’y Gen. 16-IB05 (2016); Del. Op. Att’y Gen. 15-IB06 (2015).
 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!
The approach the Department is taking shortchanges our most vulnerable children and puts Delaware’s future at risk.
At the end of last year, the Delaware Department of Education proposed amendments to Regulation 616 concerning due process procedures for alternative placement meetings and expulsion hearings. In a nutshell, this regulation would make it easier to strip away the rights of students and parents in regards to school discipline. This prompted a wave of negative comments from many concerned organizations and citizens in Delaware. It started with the Smyrna School District Assistant Superintendent and went from there. The State Board of Education tabled the changes at their December, 2016 board meeting. Now Reg. 616 is back. It was published in the June Registrar of Regulations.
As I wrote last year when this god awful and horrible regulation was introduced, this bill appears to be tailor made for charter schools. To kick out the unwanted. Why does the Delaware DOE and State Board of Education even consider this kind of nonsense? Especially since there were laws passed dealing with this exact sort of thing. Furthermore, Senate Bill 239, if passed, would have been the opposite of this bill. I’m hearing this bill will come back roaring in the 149th General Assembly. It was a question of timing for why it didn’t pass this spring.
Disproportionality is a big word these days and it needs to be. We are seeing the results of what can happen when the pendulum swings too far in one direction. The Delaware DOE and the State Board are taking a huge step backwards in a time when they should be getting out of this mindset. If our charter schools want to completely change the direction of Delaware schools while everyone else is saying no, perhaps the time has come for them to change. This isn’t Little House on the Prairie anymore. They need to stop relying on funding from the state and the citizens who actually produce the funding for them to run as quasi-corporations and become what they should have been in the first place: private schools charging tuition. Let’s see how successful they are then when they aren’t using their “autonomy” when it suits them best and then ditching that concept when things aren’t equal.
ACLU COMMENTS ON REGULATION 616
ATTORNEY GENERAL’S COMMENTS ON REGULATION 616
DSCYF COMMENTS ON REGULATION 616
GACEC COMMENTS ON REGULATION 616
SCPD COMMENTS ON REGULATION 616
Delaware Attorney General Matt Denn announced seven arrests and indictments stemming from misuse of funds at the Department of Health and Social Services. Meanwhile, several charter leaders and employees still haven’t been arrested for crimes involving school funds. This has gone on way too long! I’m not buying any more excuses on this. We’ve all seen the audits. We’ve seen the articles. Why aren’t these charter leaders being charged for their crimes Matt Denn? Who is protecting them?
In the article covering the arrests, Denn is quoted as saying:
This case is part of an intensified focus our office is trying to bring to fraud being committed against the state’s public benefit programs.
So public benefits demands an accounting, but school funds are okay? In the case of Noel Rodriguez from Academy of Dover, which was the first of the charter audits coming out of Delaware State Auditor Tom Wagner’s office last year, nothing has happened. Where is his arrest? And Sean Moore and Tennell Brewington from Family Foundations Academy? And the lady from Providence Creek? And what about Sally Maldonado and the maintenance guy at Kuumba Academy? And the board president at Delaware College Prep? And what about what will come out from any future audits coming from the Auditor of Accounts? I like Matt Denn, but it is beginning to look like a bit of a cover-up in terms of not charging these school “leaders”. In terms of Maldonado, why is she allowed to serve on state committees and task forces concerning crucial education decisions but she gets no accountability for what amounts to a raise she gave herself with no board approval?
One of the individuals charged with this theft of funds from DHSS was Kamilah Laws, who was also a contractor with the Delaware Charter School Office at the Delaware Department of Education. She was contracted with the DOE during the formal review process for the Delaware Met, which was ordered to shut down in mid-January of this year. Isn’t that interesting? (this corrects an error I previously made in stating that Ms. Laws was on the board at Delaware Met. She was not)
Theft is theft Matt Denn. So I am openly and publicly challenging you to answer these questions: when will the charter leaders and employees who stole money from kids (cause that’s what it comes down to) be held accountable? Will they? Is there any reason why they wouldn’t? Is Delaware law upheld only with certain state agencies?
It doesn’t just happen in charter schools. According to WBOC, former Dover High School teacher Brian Ogbin gave himself up to the Dover Police last Friday and was charged with theft under $1500 and unlawful use of a payment card under $1500. So how does it work that this guy gets arrested for theft under $1500 but charter school leaders and employees from Family Foundations Academy, Academy of Dover, and Providence Creek Academy get away with stealing funds in the five to six digits and NO arrests have been made? It has been over nine months since the State Auditor report came out on Academy of Dover.
Ogbin resigned as a teacher with the Capital School District at their February board meeting. According to the article, the theft of funds using the debit card and funds taken from a wrestling fundraiser were discovered following an investigation. The article does not state who held the investigation. I would imagine cash advances from Dover Downs totaling over $500 would have sent some red flags flying though. How many debit or p-cards (state procurement cards) are floating around out there ready for someone to use at a moment’s notice for stuff like this? While I’m glad this situation was discovered relatively fast compared to the charter school stuff going on out there, where are the controls that could stop this from happening in the first place? Should school “clubs” or “organizations” be allowed to have their own control over funds generated by the district and fundraisers?
My biggest concern with all of this is the sheer hypocrisy involved. I’ve been told by some in the know that something will happen with these charter school leaders. That was in November. I have asked “larger organizations” about this. How long does it take to build a case against a charter school employee while a traditional school district employee is arrested for something similar but less egregious? It makes it very hard to believe there will be accountability for the charter thieves in light of this. They absconded with hundreds of thousands of dollars. I’ve said it before and I’ll say it again: Matt Denn, what is the Department of Justice doing about this?
It must be Matt Denn day here at Exceptional Delaware! In any event, Delaware Attorney General appeared on Comcast Newsmakers with Jill Horner on March 21st to talk about Senate Bill 207. This legislation would make it so schools do not have to call the police every time there is a fight in a Delaware public school. The schools still could, but they would have discretion based on the circumstances and the potential of serious injury. As well, SB207 would mandate schools disclose the contact information for the Ombudsman at the DOJ who deals with school bullying issues to parents.
Delaware Attorney General Matt Denn wants all parents of students with disabilities with an IEP to read this message! As part of the IEP Task Force recommendations back in 2014 which became part of Senate Bill 33 last year, the Delaware DOE is required to send surveys out to a representative number of families where a child has an IEP. The goal of the survey is to see how our schools are doing with the IEP process and implementation. I strongly urge all parents in Delaware who have a child with an IEP to take this survey. Thank you.
I am writing to ask for your assistance in ensuring that our schools are complying with their legal responsibilities to provide appropriate services to students with disabilities. One of the recommendations of the IEP Improvement Task Force that I chaired was to survey families specifically about their experience with the IEP process, so the state could determine if particular schools or districts were failing to comply with their legal responsibilities to children with disabilities. The General Assembly enacted legislation last year requiring the Department of Education to conduct this survey. The Department of Education, through the Center for Disabilities Studies at the University of Delaware, is mailing such a survey out to the homes of a randomized group of approximately 5,000 students with IEPs. In addition to these mailed surveys, we have also created an online version which will allow families who do not receive the mailed survey to share their experience. While we request permission to contact the responding families if there are concerns about their responses, they may choose to participate anonymously.
I ask you to share the web address for this online survey with the families of children you serve and encourage their participation, so we can try to ensure that all children with disabilities in our state receive the support to which they are entitled.”
With a 5-4 vote, the Delaware Joint Finance Committee came to an agreement on how to use the $28 million remaining from the mortgage settlement funds. According to Matthew Albright with the News Journal, $8.1 million of the funds will be used towards educational programs including the following:
$4 million for after-school homework help in high-poverty schools
$4 million for funding to provide remediation for students who get behind in the early grades
$100,000 to Junior Achievement for school programming for at-risk youth
I have to give credit to State Rep. Joe Miro for being the voice of common sense.
If anyone really thinks the SAIL program is going to be temporary, think again. This is part of the Every Student Succeeds Act. And it all fits in with the dark future of education. More government control of children is taking place before our very eyes. I agree some kids need direction because the quality of their home life is not good. However, this plan has the capability of morphing into something permanent. Kids are in school long enough during the regular day. And we want to extend that?
The Associated Press did an article entitled “How open record laws are applied in state legislatures” on March 13th. Delaware did not fare well in this report. The AP sent Freedom of Information (FOIA) requests to all fifty states asking for the public schedules for the state Governor and members of their legislatures for the week of February 1st to 7th of this year. In Delaware, our General Assembly is exempt from FOIA requests. Delaware Governor Jack Markell, who promoted “sunshine is the best disinfectant” regarding public transparency of Governmental records, seems to be having a very hard time with FOIA requests lately, between the FOIA request from his former State Treasurer Chip Flowers and the one he received from the AP for their article. The article gave Markell’s response to the FOIA:
Delaware legislative leaders refused to provide their emails. The Legislature has specifically exempted emails of lawmakers and their staffs from the state’s Freedom of Information law, as well as any communications between lawmakers, or between lawmakers and their constituents. A bill to remove those exemptions was introduced earlier this month but has yet to be heard in committee. An attorney for the lawmakers also said many activities on their daily schedules are exempt from disclosure, asserting that exemptions allowed by statute or common law extend to the concept of “legislative privilege” based on the Delaware Constitution and common law. The attorney nevertheless released portions of the lawmakers’ schedules while asserting that doing so was not a concession that the information is subject to the FOI law. The activities mostly involved appearances at community meetings and charitable events. The deputy legal counsel for Democratic Gov. Jack Markell said the governor’s office is working diligently to respond to the AP’s request, but that more time is needed because review of the records requires legal advice. Markell’s office has previously denied formal records requests for his emails.
I guess I should count myself lucky for the FOIA I received from Markell’s office back in early 2014. But the Chip Flowers FOIA denial is certainly interesting because Markell’s office used Exemption 16 to deny the FOIA request. Exemption 16 is when a General Assembly member or the comptroller is part of an email chain. I find it very ironic the Governor’s counsel would use that as a reason to decline a FOIA. Especially since they seem to cherry-pick when they want to use this exemption. In fact, the Governor’s office has actually shown legislators emails in earlier FOIA requests. Something I recollected right away as I was reading the Chip Flowers petition from the Delaware Attorney General’s office. I felt it was my civic obligation to let them know about this memory of mine.
From: Kevin Ohlandt <firstname.lastname@example.org>
To: Gibbs Danielle (DOJ) <email@example.com>
Cc: Denn Matthew (DOJ) <firstname.lastname@example.org>
Sent: Tuesday, March 15, 2016 10:04 AM
Subject: The Chip Flowers FOIA Legal Opinion
Good morning Danielle,
I read, with great interest yesterday, the FOIA petition from Chip Flowers. I found it very interesting the Governor’s office would cite Exemption 16 for not releasing the information Chip Flowers requested.
In December 2014, State Rep. John Kowalko received a FOIA from the Governor’s office regarding the priority schools in Wilmington. He gave them to me to publish on my blog. In several of the emails, General Assembly emails were used and not redacted, and in some of them they gave the actual email from State Reps.
Here is the link to the FOIAs:
I find it very interesting the Governor’s office would cherry-pick who this information is released to. There is absolutely no consistency and I would strongly question the use of this Exemption 16 when it is convenient. Please feel free to use this information for any ongoing matters regarding Chip Flowers FOIA. If you need any other clarification on this matter, please don’t hesitate to reach out to me.
With something that took up so much media interest, I would think the Delaware Attorney General’s office would respond, but so far I have yet to receive a response. I can only surmise based on the behavior surrounding the Chip Flowers FOIA request and the fact the Governor would need legal advice for the AP FOIA request, the Governor is hiding things. Could there be something in his daily schedule he doesn’t want people to know about? Or in his emails? Did they include his “Alan Jackson” email address? I’ll be flat-out honest: I don’t trust Jack Markell. At all. He is dishonest and sneaky. He seems to have the General Assembly under his thrall this legislative session. They are suspending rules and passing bills in record time. Just today, Governor Markell signed the Commitment to Innovation Act, otherwise known as Senate Bill 200, mere hours after it passed in the House of Representatives and 31 state representatives agreed to suspend the rules. Including some who have gone on record as saying they never suspend the rules. This tax-break bill, in conjunction with House Bill 235, are seen as great boons to companies in Delaware as the state faces potential deficits in their state budget.
I have no doubt Markell will have instituted all of his education policies and agendas in Delaware by the time he leaves office next January. Judging by the mad rush of legislation which will allow tech companies to swarm into Delaware with our generous tax breaks, Social Impact Bonds, Personalized Learning and Competency-Based Education. Kids will be earning their number of the beast data badges in the not-too-distant future. Parents won’t be able to notice, because all of our little screen-time kids will be staying after school in the SAIL program. And Jack’s buddy over at the Rodel Foundation, Paul Herdman… he actually uses LEGOs to lure unsuspecting parents and children into his personalized learning paradise. If you think Kindergarten grit is bad, wait until you get a load of the money pouring into toddler grit. Of course, we must determine what children are going to do when they are older before they even know how to tie their shoes. But we call this Pathways To Prosperity. We have Jamie Merisotis and the good folks at the Lumina Foundation to thank for all of this nonsense! And if you think Delaware has issues with FOIA, wait until you hear more about WOIA! Under the recently confirmed US DOE leadership of John King, these things are going on in just about every single state in the country.
The one thing our non-transparent Governor is good at is the art of distraction. He gets us all riled up over charter schools, opt out, and teacher evaluations while he paves the road to hell for John Carney who doesn’t seem to have the good sense to come up with his own thoughts. And in case we get too close to his overall plan, Jack throws things like the Wilmington Education Improvement Commission vs. State Board of Education battle in our faces but there are questions about the legality of that secret meeting. Hard to tell since no one aside from Tony Allen has responded about that one. Tony made it very clear to me the whole thing was the Governor’s idea.
This is Delaware. A state filled with sinister plotting and backroom deals. Legislators who get the “Jack call” and make miracles happen before our very eyes while telling us it’s all about the DuPont/Dow merger. Markell is the master of spin. He can turn crap into gold! And the state legislators, DOE employees, State Board of Education members, and business leaders watch in amazement as they hold onto their illusions of power and wealth. We call these people “stakeholders”. But guess what doesn’t change? Bullying, teacher dissatisfaction, high-stakes testing, a severe lack of funding and resources for our schools, and more segregation and discrimination for every single at-risk student than you can even fathom. All under the guise of student success. The stuff going on behind the scenes? We will never get that cold, hard, tangible proof to bust these children destroyers. They write the laws to protect themselves and the citizens of Delaware pay for it. And we keep electing so many of them! We are a state that is immune to true and radical change. We act as if holding onto a political party’s belief is what we must do. I hate to tell you Delaware, but greed is bi-partisan. The love we need to have for our children, our unconditional love, that should be enough to make the necessary changes. But we aren’t doing it. We are holding onto the dreams of yesterday and think it really matters who becomes the next President or Governor. We get sucked into the 24 hour news cycle about Trump, Clinton and Sanders while the distracters spin their webs and suck us in. It doesn’t matter who wins the Presidency because corporate America bought our government while we blinked. Our kids don’t have a chance.
Appoquinimink does not want parent opt out at all. They don’t want parents talking about it with outsiders. Especially me. Parents are getting VERY upset and they have justification. I wrote about the latest intimidation tactics the district is taking earlier last week. It turns out that isn’t all they are doing!
Last Thursday, I spoke with the Public Information Officer for Appo, Lilian Miles. I advised her the Appo letter about opt out is very confusing to parents and it is hard for them to understand what it even means. Between the “absent” for the purposes of testing portion and the illegal portion with federal and state code with their glaring omissions surrounding parents, I told her they need to change the wording in the letter.
Lilian explained she understands but they are following the Delaware Department of Education’s suggested template. She was going to check with some district folks and get back to me. She asked which parents were coming to me about this. I advised her I didn’t feel comfortable giving out that information. Apparently, she didn’t like that.
From: Miles Lilian <Lilian.Miles@appo.k12.de.us>
To: “email@example.com” <firstname.lastname@example.org>
Sent: Friday, March 11, 2016 1:12 PM
Subject: wording on letter
To: Miles Lilian <Lilian.Miles@appo.k12.de.us>
Cc: Denn Matthew (DOJ) <email@example.com>; Kowalko John (LegHall) <firstname.lastname@example.org>; Burrows Matthew L. <email@example.com>; Godowsky Steven (K12) <firstname.lastname@example.org>; Lawson Dave (LegHall) <email@example.com>
Sent: Friday, March 11, 2016 4:33 PM
Subject: Re: wording on letter