State Board of Education ESSA Meeting: 60 Pictures & Flipping The Narrative

At Grotto’s Pizza in Dover, DE, the State Board of Education held a workshop on the Every Student Succeeds Act.  The Capitol Room at Grotto’s was jam-packed with administrators, teachers, advocates, Delaware DOE employees, State Board members, a Congressman, education company employees, and even a blogger or two.  Sadly, there were not that many parents there.  Yes, many of these people play that role as well as their other jobs, but for a meeting the Delaware DOE will say is a true “stakeholder” meeting, this key group was missing.  I recognized a lot of the faces, but there were some I didn’t.  Some I was able to put together based on conversations I overheard.  This was the State Board of Education Workshop on ESSA.  Notice some of the tables where certain people are sitting together.  Especially the one Secretary Godowsky was sitting at…

I did not take these 60 pictures.  They were taken by an employee of Secretary of Education Dr. Godowsky’s office and put on the Delaware DOE Facebook page this morning.  Which means they are part of a state agency which puts them in the public domain!  Thank you DOE Photographer!

ESSAMtg1

State Board of Education Executive Director Donna Johnson at the microphone, Deputy Secretary of Education Karen Field-Rogers in the pink jacket with striped shirt in the back, Susan Haberstroh with the DOE with the mid-length brown hair and glasses, Governor Markell’s Education Policy Advisor Meghan Wallace with the ponytail and glasses, Secretary of Education Dr. Steven Godowsky to the right near the screen. Continue reading

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

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

 

July 28, 2016

VIA EMAIL AND STATE MAIL

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

 

            Re:    FOIA Complaint Concerning the State Board of Education

 

Dear Representative Williams:

 

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

 

I. FACTUAL BACKGROUND[1]

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

 

II. POSITIONS OF THE PARTIES

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

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

 

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

 

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

 

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

 

 

III. REQUEST FOR ADDITIONAL INFORMATION

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

 

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

 

IV. APPLICABLE LAW

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

 

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

 

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

 

V. DISCUSSION

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

VI. CONCLUSION

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

 

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

 

Very truly yours,

/s/ Danielle Gibbs

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

 

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

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

[3]           29 Del. C. § 10001.

[4]           29 Del. C. § 10004(a).

[5]           29 Del. C. § 10002(c).

[6]           29 Del. C. § 10004(c).

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

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

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

[10]         Id.

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

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

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

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

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

[16]         29 Del. C. § 10002(g).

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

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

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

 

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

 

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

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

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

Delaware House Bill 28 Submitted To End Distasteful Funding Which Benefits Charter Schools

House Bill 28, submitted today by primary sponsors, Delaware State Representative Kim Williams and State Senator Patricia Blevins, would put a halt to an inequity in funding when a charter school student transfers to a public school district after the September 30th count.  This bill is now in the hands of the House Education Committee.  Let’s get this one passed Delaware! State Rep Williams is on a roll and we are only a week and a half in!

I’ve gone ahead and added a page in the menu up top to put all the pending education bills and their current status in one spot for those who want a quick reference!

Senator Townsend & Rep. Williams Submit Legislation For DPAS II Advisory Committee

Delaware Senator Bryan Townsend and State Representative Kim Williams have submitted Senate Bill #10 which would amend the Delaware Performance Appraisal System II Advisory Committee.  It is currently in the hands of the Senate Education Committee.  Here is the text of the bill so far:

SPONSOR: Sen. Townsend & Rep. K. Williams
  Sens. Blevins, Poore, Sokola; Reps. Barbieri, Bolden, Heffernan, Jaques, Kowalko, Lynn, Matthews, Osienski, B. Short

 

DELAWARE STATE SENATE148th GENERAL ASSEMBLY

 

SENATE BILL NO. 10

 

 AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO THE DELAWARE PERFORMANCE APPRAISAL SYSTEM II ADVISORY COMMITTEE.

 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend § 1275, Title 14 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

  • 1275. DPAS II Advisory Committee.

(a) The Secretary shall convene and provide administrative staff to the Delaware Performance Appraisal System II Advisory Committee. The Committee shall consist of the following members:

(1) Three public school teachers appointed by the Delaware State Education Association; Association.

(2) Three public school administrators appointed by the Delaware Association for School Administrators; Administrators.

(3) One public school superintendent or his or her designee, appointed by the School Chiefs’ Association; Association.

(4) A member of a local school board appointed by the Delaware State School Board Association; Association.

(5) A parent with a child or children in public school selected by the Delaware Parent-Teacher Association; Association.

(6) A representative of higher education appointed by the Governor from an institution that offers a teacher preparation program authorized by the Department of Education; Department.

(7) A representative from the Office of the Governor; Governor.

(8) The Chair of the Education Committee of the Delaware House of Representatives, or the Chair’s designee; and designee.

(9) The Chair of the Education Committee of the Delaware Senate, or the Chair’s designee.

(10) One ex-officio representative from the Department, appointed by the Secretary.

(11) One ex-officio representative from the State Board of Education, appointed by the President of the State Board of Education.

(b) The Committee shall meet at least once a quarter each year.

(c) Annually the Committee shall designate a Chairperson and a Vice Chairperson from amongst its membership.

(d) The Committee shall review data produced by the Delaware Performance Appraisal System II, specifically whether the Department of Education is addressing the fidelity of system implementation statewide, that the data being collected is accurate and reliable, and that it is being used fairly for improving educator quality and professional development opportunities to determine specifically the State’s efforts to ensure fidelity of system implementation statewide, the accuracy and reliability of the data collected by the Department, and the State’s use of the data to improve educator quality and provide meaningful and professional development opportunities.

(e) The Committee shall review proposed new amendments concerning educator evaluation to the State’s Elementary and Secondary Education Act Flexibility Waiver prior to submission to United States Department of Education. The Committee shall review any aspects of the State’s ESEA Flexibility Application which involve the educator evaluation system and any renewal, extensions, or amendments to the Application that deal with educator evaluation prior to submission to the US DOE.

(f) The Department shall provide the Committee with the data produced by the Delaware Performance Appraisal System II, as necessary for the Committee and information necessary for the Committee to fulfill its responsibilities pursuant to the above subsection (d) of this section and to make recommendations regarding educator quality, professional development, and organizational improvement and system design and implementation.

(g) The Committee may provide comments in writing to the Governor, Secretary of the State Board of Education, and the General Assembly on subsections (d), (e) and (f) of this section subsections (d), (e), and (f) of this section.

(h) The Delaware Performance Appraisal System II Advisory Committee shall review any proposed regulations to be promulgated pursuant to this subchapter and shall submit written comments concerning the same to the Secretary and to the State Board prior to the State Board’s consideration of any proposed regulations.

 

SYNOPSIS

This Act makes technical changes to the Delaware Performance Appraisal System (DPAS) II Advisory Committee membership and meeting dates. Additionally, this Act clarifies language regarding the Committee’s duties in order to better provide advice to the Secretary of the Department of Education and the State Board of Education in the promulgation of regulations relating to DPAS II.

Author: Senator Bryan Townsend

State Rep Kim Williams Public Comment On Family Foundations Academy, Wow!

Go Kim!  I’m glad to see a legislator getting involved in education matters like this.  She found this out in a few weeks.  Imagine if the DOE took that active a role in what goes on at these charters?