The Delaware Charter School Network became involved with the firestorm at Thomas Edison Charter School and that can only mean one thing: Kendall Massett is now in charge. The last time she entered the fray like this it resulted in Family Foundations Academy having their board completely gutted when the Eastside Charter School board took over back in January, 2015. I was able to find out a lot more about the school’s “foundation” account and that is the biggest farce of them all! Meanwhile, the school has violated FOIA many times through this and they are about to do the same tomorrow. Continue reading “Kendall Massett Rides To The Rescue For Thomas Edison Board As They Are About To Violate More Open Meeting Laws”
The Smyrna School District Board of Education is meeting tonight for what they are calling a “reorganization meeting”. Meanwhile, Superintendent Patrik Williams has flat-out responded to my two requests for the email addresses of the Smyrna board. I actually called most of the members earlier today, but none of them picked up. I did not leave messages.
What kind of school board, in this day and age, does not provide email addresses? Seriously? Patrik Williams seems to think he doesn’t have to provide those even though he is the secretary for their board. What is the point of having just phone numbers if no one picks up? Most Delaware school boards and even charter boards provide email addresses for their board members on their website. I know he saw my request for this because he responded to me on another matter.
At the board meeting tonight, I expect a decent crowd. The board may discuss discipline issues including votes on current issues, former students, and potential litigation according to their agenda. They do have other items on their agenda. Most school boards go into public session at the start of their meeting and then adjourn to go into Executive Session. Then they return and go through the public agenda. Time is allotted for public comment this evening. Bring tootsie rolls if you wish. The meeting will begin at 6pm at the district office in Smyrna at 82 Monrovia St.
J’s mother will be there along with others who are not happy with his situation and how the district handled it. I will be there. You should too.
It looks like the Smyrna School District Board of Education has been reading my series on the story of J and their harsh zero tolerance discipline tactics. It turns out they are having a “special” board meeting dedicated solely to student discipline issues. This comes right on the heels of my series about J. Hey, Patrik Williams, you should give Dr. Mark Holodick up in Brandywine a call about this kind of stuff. He is VERY familiar with these kind of issues. So much so his district is taking a very good look at their own zero tolerance policies.
I haven’t heard from Patrik Williams since he emailed me a couple of weeks ago and I responded to him. I am still working on the series about J. To be honest, I’m trying to get a transcription of the hearing with the State Board of Education. Going back and forth with that office on that issue. And with a holiday coming up… But if I don’t get it, I will come out with the next part with what information I do have.
If I were a parent in the Smyrna School District who has dealt with what you feel may be harsh discipline tactics, I would definitely attend this meeting. The meeting notice doesn’t specify if they will have public comment or not. Who knows, maybe I will show up!
While no news has surfaced about what the proposed settlement is between the Christina School District and the 15 charter schools suing them and the Delaware Dept. of Education, the board did release the agenda for the meeting tomorrow night.
The board is certainly in their legal right to have this meeting without seven days notice. It sounds like some attorneys were pretty busy over the holiday weekend. This bothers me, a lot. Any settlement will give the charters what they want… more money. It will ignore the history between Christina and the Delaware DOE. The bottom line is Christina submitted exceptions to the local funding formula and the Delaware DOE approved them. I think any settlement should be paid for by the Delaware DOE. But what concerns me even more is what happens to future local funding formulas with this settlement. Which could also impact every single school district in the state. This settlement agreement has to be made public. No questions asked. The people deserve to know exactly what transpired with this whole thing, from start to finish. It seems like the attorneys “negotiations” could put Christina in a bind. Is the cost of the settlement more than the potential attorney fees should Christina prevail in the lawsuit? I would tend to doubt it. This seems like a hasty rush to resolve a complicated situation before certain powers in Delaware begin their terms. This whole thing reeks of foul play. For all the fuss Greg Meece started with this because Newark Charter School didn’t get funding based on Christina’s two failed referenda in 2015, offering a settlement shows severe weakness on the fifteen charter schools part. Unless there was previous foul play involved long before this topic even came up earlier this year. Either way, we want answers on this. Transparency is a must!
Last Spring, I submitted a Freedom of Information Act complaint against Gateway Lab School, a Delaware charter school, to the Delaware Attorney General’s Office. As any regular reader of this blog is aware, I frequently review meeting minutes for charter schools and school districts. What I saw in the March minutes for Gateway Lab School shocked me. Not so much from what they did, but the fact our Attorney General’s office released similar opinions on these kind of matters in the seven months prior to this. I bear no ill will towards Gateway or their board. I have always commended this charter school for servicing students with disabilities as the bulk of their student population. I was among the majority who felt the Charter School Accountability Committee’s 2014 recommendation to shut the school down was absolutely ridiculous, especially when that decision was based on standardized test scores.
After I filed the complaint, myself and Gateway went back and forth via email on the complaint. During that time, I found another similar action by the Gateway board. While I had some pains submitting the original complaint because of my loyalty for a special needs school, I felt it was important for them to correct this action. Did they? And how did the Attorney General’s office rule on my complaint? Find out below!
I’ve listened to a few of the charter audio links. But nothing was shorter than Newark Charter School’s 16 minute audio recording. Their meeting, held on September 20th, didn’t discuss any aspect of the district-charter funding scuffle that monopolized Delaware education social media the first ten days of the month. They didn’t really talk about much of anything, which is surprising given the school year started. Their meeting minutes usually give an impression their meetings are longer than 16 minutes. I hope we don’t run into a case where some charters go into executive session to discuss the big stuff. Their audio gives no sign of how long they went into executive session to discuss “potential litigation”. Unless they do have potential litigation. It wasn’t on their agenda they put up September 9th but it was on September 16th. When they came out of executive session, they did unanimously vote to move forward on the potential litigation.
You can listen to the very short meeting here.
Gateway Lab School, a Delaware charter school that serves a very high population of students with disabilities, held a special board meeting on April 4th, 2016. The purpose of the meeting was to discuss a due process mediation. Can you spot the Delaware FOIA violation? It’s easy if you try!
Oops! That’s a big one! I’ve already filed the FOIA complaint to the Attorney General’s office. As a gentle reminder to all school boards in Delaware: you can discuss student related matters in executive session if it pertains to an issue, but you can’t vote on it in executive session. You need to come out of executive session and vote on it then. Now you can’t, and shouldn’t, say this is for x student’s due process mediation situation. But I would suggest giving a number for all action items at a board meeting. Many boards do this already. You can just say, as an example, “In the matter of 16-322, may I have a motion to vote on this action item?”, or something along those lines. It wasn’t that long ago that Brandywine School District’s board had the same issue which is causing issues for the district now as part of a lawsuit.
As well, I have also requested an opinion from the same office about public comment at public meetings. I have noticed some Delaware charter schools ask public comment to be submitted up to two weeks in advance before a board meeting. I don’t think that is in the spirit of the law. Any member of the public should have unfettered access to a public meeting and have the ability to give public comment without having to give advance notice.
Sorry Gateway! Don’t mean to call you out but if all of your board members have not received the full training on these matters I would definitely get on that!
As reported by Randall Chase with the Associated Press yesterday, Delaware’s Cyber Security Advisory Council kicked off their first meeting with a Freedom of Information Act (FOIA) violation. But what the article didn’t cover was how the state tried to cover its tracks after the meeting.
James Collins, the state’s chief information officer and head of the council, then said the panel would meet in executive session, even though Delaware’s Freedom of Information Act requires that such closed-door meetings be noticed ahead of time.
But do they have the ability to time travel into the future to give that notice? Apparently, they do!
This is the agenda for the first meeting as shown on Delaware’s Public Meeting Calendar website.
It looks like they have everything covered, right? Including a FOIA Exemption Proposal because they know they are violating FOIA. Here is the page from the Public Meeting Calendar website:
Looks okay to me, right?
In the above picture, taken from the bottom left-hand corner of the Public Meeting Calendar notice, it shows three change dates. 3/3/2016 was the original posting of the meeting, 3/22/2016 I would assume had the addition of the FBI Agent giving the briefing on the unclassified threat, and the 3/23/2016 change was to give notice about the group going into executive session to discuss the unclassified threat. So maybe Randall Chase got it all wrong, right?
Nope. This picture is the properties of the PDF. If you right-click with your mouse on a PDF, it tells you when a PDF was created and modified. This PDF was actually created yesterday, 3/23/2016 at 3:17:16pm. It was a brand new agenda. The part blacked out is my own personal location for my computer which I didn’t think was necessary to throw out there so I will fully admit I blacked it out in the picture.
Someone should really file a FOIA complaint on this one to the Delaware Department of Justice! Oh wait, I already did…
The State Board of Education audio recordings from their very long meeting yesterday are now up on the State Board website. The Wilmington Education Improvement Commission portions of the meeting take up a collective two hours and twenty minutes of the meeting. Not included are the breaks, legal or illegal, during the meeting with respect to the WEIC discussion.
As I insanely do once in a while, during contentious board meetings, I transcribed part of the WEIC conversations. The three areas I focused on were the FOIA violation I believe the State Board committed by pausing the meeting to convene with legal counsel without calling for an executive session, the Christina priority school plans, and the funding/pause conversation surrounding the words “shall” and “may”. The key players in most of this are State Board President Dr. Teri Quinn Gray and WEIC Chair Tony Allen. Others are State Board members Pat Heffernan, Barbara Rutt, and Executive Director of the State Board of Education Donna Johnson. While I would have loved to get the whole thing transcribed, there isn’t enough time in the day. And as I’ve said before, you can only replay some of these voices so many times without wanting to jump off a bridge. Key parts or words are bolded for emphasis.
The FOIA Violation
There has been well over an hour of conversation at this point about the plan and a lot of back and forth between the State Board and Tony Allen. This occurs at the end of Part 5 in the audio recordings from the meeting yesterday.
Dr. Teri Quinn Gray: So, I just gotta check out the procedural piece of that with the attorney…do you mind? Cause I’m not sure about, uhm, the timing…
Tony Allen: Could I add, offer something, Could you make a motion to approve it with the new caveats, approval contingent upon…
Gray: Yeah, that’s why I need to make sure we get all the right pieces around that. I think I heard a little bit of that. So, let me ask for, uhm, a 15 minute break to consult with counsel and get the options around that. Do you mind?
Gray: Miss Rutt, can she come with me, with you, the attorney? It’s 3:46. We’ll be back at 4.
31 minutes later, beginning of Part 6 of the audio recording…
Gray: It’s 4:17 and we’re back in session. So why we left and the whole purpose of stepping away is we had , uhm, a proposal to table the current motion to approve the plan as presented. But, ugh, we brought forth an amendment motion that actually puts forth a conditional approval based on the conditions of changing the “shall” to “may” in the proposed resolution. And also having a wait for the Christina School District to act on the action item on February 23rd which involves submission of grant applications to the Department of Education for priority schools. And also contingent upon approval of the Department of Education of that plan, of that grant application. Right, so that’s the discussion that has been happening for the past thirty minutes or so and the expectation around that, uhm, if the board accepts that amended motion and vote accordingly, or affirmative in that, that we would ask that we take those two conditions and act accordingly however we see fit, we would be able to close that item before us. There is no need to bring this back to the table or as an agenda item for the board. We would be able to settle that based on those conditions being met.
Pat Heffernan: And if they’re not met?
Gray: And if they’re not met then the approval is, there is no conditional approval and we do not approve it.
Allen: Can I add two things?
Allen: I’ve consulted with many of the commissioners here on both the conditions. On condition one, back to Christina and the priority school plans, I think that, I appreciate, making sure that the condition is with respect to the Department of Education approving the plan as opposed to the Christina School Board being made, maybe that’s how I was interpreting it, made to approve their priority schools plan is a better way to get that. I think the Christina School District has every intention to approve the plan but I don’t think they take kindly to the State Board as making them so that’s…
Barbara Rutt: Sure
Allen: The second issue, with respect to “shall” and “may” is, I just want to reiterate, and you will act I know, I want to reiterate that on the board level, the commission level, the word “shall” was about making sure this wasn’t becoming an unfunded mandate. We talked about that at length during our discussion. I think that would be a significant hurdle for us. The district leaders have continued to express that if the resources aren’t provided they could not go forward. And it’s my suspicion is that they will see that change from “shall” to “may” as a potential for an unfunded mandate with a cause of concern for their districts. I will take that back to the commission, but I wanted you to know that as you make your decision, that could be a deal-breaker. While I would not speak for the commission at this moment, I can guarantee you that if it does not happen, you will not see the commission resubmit a plan.
Christina Priority Schools
Heffernan: I just want to add that, you know, the approval of the priority schools plan by Christina is, is it months or years late? So I have very little patience for Christina for semantics on that. They literally refused to approve plans to help the kids and honestly, I think got us to this table where we are today.
Secretary of Education Dr. Steve Godowsky: I just want to make this clear. On January 22nd of 2016, I sent Christina’s Acting Superintendent a letter indicating that either the board or the Acting Superintendent can submit and activate the, uhm, the original application for the priority, or the MOU that they submitted a year ago. Uhm, so that is what you are suggesting. It may not require a vote from the Board but we wanted to make sure which plan they want to move forward and if it was the MOU plan, and I have talked to the Board President. Then that will be acceptable to us going forward.
Heffernan: One thing that really troubles me about this is if the Christina Board doesn’t fully support these plans then, you know, we’re back to where we always were. And this is, so I, I, we can’t make, we have no authority to make any local boards approve anything, I totally get that, but I’m just very disappointed that this continues to be hard to get them to agree to help the priority schools. That’s all I’m saying.
Godowsky: And the Christina Board did sign off on their plan about a year ago with one day difference so I think they did support that plan. And now that we know that’s the plan on the table then we can move forward, I believe we can do our due diligence and be in a position to review that plan and make modifications.
Heffernan: So they approved this a year ago?
Godowsky: As part of, uhm, the Memorandum of Understanding, between the district and others that negotiated that alternative to the original plan, as I understand it. I was…
Allen: As I understand that, the impasse was between Christina and their approved plans and the former Secretary (Mark Murphy), not that they didn’t approve the priority school plans. That is my understanding.
Heffernan: But the Department didn’t approve the plans?
Heffernan: So we’re going to take the same plans that the Department didn’t approve…
Godowsky: No, no. I don’t know the history of why it wasn’t signed off. There were a number of contingencies on that which required the principal, replacing the principal, interviewing, or reapplying teachers for their positions, and management company that, ugh, that, those requirements have changed and we’re not in a position to impose those regulations. So I think that was the stumbling block. I don’t want to speak for Christina, and I don’t have all the history that they were the stumbling block, but later on there was an MOU submitted that never got signed off on at the Department level. I don’t know the reasons in detail. But I just know what I’ve looked at, in terms of the MOU, it’s consistent with much of what we want to do with those three schools, instructionally, which we’ve talked about since October, that I’ve been here. And, given some modifications, I’m ready to move forward.
Gray reiterates much of the conversation of what just went on…
Godowsky: I’m in receipt of those plans. I just needed, in a sense I have those plans.
“Shall” and “May”
Heffernan: I guess I’m trying to understand where the unfunded mandate is coming from. The redistricting portion of the plan is going to be unfunded or…
Allen: Remember, we arranged this for resources for English Language Learners, special education, and high concentrations of poverty. Every outline of current funding, none of that has been allocated yet, say, for the Governor’s commitment for the four to six million, right, so what we’re suggesting is each year, going through these two budget cycles, everything has to show up and if it that money doesn’t show up all the districts have particular issues with having Red Clay taking on these kids, and by the way this is not just a Red Clay issue, all the districts talk about this, taking on these kids with no changes in the funding formula for how they are going to help those kids.
Gray: And we’re committed to that same delivery around, particularly to support low-income and English Language Learners so we are… (note: Gray did not say special education)
Allen: And I agree. The question is about you all interpreting, and again, this might be an (inaudible) on our part, you all interpreting “shall” as required without deliberation.
Gray: That’s right.
Allen: We don’t interpret it that way. It was meant to be deliberation in consultation with the effected districts…
Gray: Right, so let’s just make it the “may”, and if we need to, we’ll do it, right? Because without this level of conversation and intimacy that we have now, whenever this may come forward a few years from now that “shall” is a… (very, very hard to understand what she said here but I did hear the word legal. Whether that was “legal” or “illegal” I was unable to tell)
Allen: I agree, and I do not give this short shrift, if you in fact approve it this way, it will require, I believe, a full-throated (inaudible) analysis that you will give in writing and in person to the commission, so…
Gray: Absolutely. We’re committed to that. The Board is committed to that for sure.
At this point, Dan Rich (another WEIC commissioner) says something to Tony Allen. Tony asks for five minutes, and then Kenny Rivera (President of the Red Clay Consolidated Board of Education and a commissioner on WEIC) says something. I think I heard the word “non-negotiable” but it is very hard to hear. The State Board grants the WEIC folks a five minute break. This is the end of Part 6 of the audio recordings.
The break ends, and the State Board is back in session in Part 7 of the audio recordings.
Gray: So Dr. Allen, did you want to add something before we go forward?
Allen: I consulted with many of the Commissioners here and I think there is general agreement that we could, and we would like you to consider, taking out all the provisions outlined in the resolution that we take back to the commission so that it does not come back to the State Board. But in general, but moving forward, it will be contingent upon sufficient funding. Effectively, that takes you out of the process at the final implementation stage.
Gray: So you’re saying?
Allen: What we’re saying disregard all the remaining “shalls”, make it all contingent upon the necessary and sufficient funding and resources and take it off of the State Board with respect to their responsibility for this board and to future State Boards.
Gray: So is that effectively removing the resolution?
Allen: It’s more changing the resolution but excluding State Board having ongoing responsibility for suspension of the timetable.
Gray: Could I ask the process specialist?
Donna Johnson: With process of approval of the redistricting process in and of itself, and there is the caveat there that the plan would become essentially non-void if necessary and sufficient funding were not available, what safeguards would be in place if those necessary sufficient funding and supports were not at each of the milestones? Where would there be a pause that takes place at that point?
Allen: Do you mean who would authorize that pause?
Allen: The authorization would come from the commission and the effected districts. So we’d take it out of the State Board’s hands. There is nothing in Senate Bill 122 that prohibits this.
After much back and forth, the State Board voted on the redistricting plan and the addendums as of 2/11/16 with no amendments which failed 3-4. The State Board then voted on the plan with the amendments about the Christina priority schools plan approval and the changing of “shall” to “may” on page 10 of the official plan. The motion passed with a 4-3 vote.
Yesterday, the State Board approved the WEIC plan with certain conditions. What is real and what isn’t from this whole process? This article has the answers to questions on the minds of many this morning. Earlier today, Wilmington Education Improvement Commission Chair Tony Allen sent a message to the members with their next step:
Yesterday, The Delaware State Board of Education voted to approve Wilmington Education Improvement Commission’s Redistricting Plan with two conditions, http://delawarepublic.org/…/state-board-ed-narrowly-approve…
• The Christina Priority Schools plan be approved the Delaware Department of Education
• The Commission change the word “shall” to “may” in item #2 of the Redistricting Resolution of our plan; this is the item that outlines a suspension of the timetable if the “necessary and sufficient resources” are not provided to move forward with implementing the plan.
While today’s approval comes with conditions, the Commission remains resolute in our commitment to our objectives and to our plan for meeting those objectives. In that spirit, I will be calling an emergency meeting of the Commission next week to discuss the conditional approval and determine our path forward. As is our normal practice, that meeting will be open to the pubic and include public comment.
On a parallel track, this morning, the University of Delaware announced the UD Partnership for Public Education and the Fund for Urban Education. These are two more examples of the catalytic nature of the Commission’s efforts and a great show of support from Delaware’s flagship institution, http://www.udel.edu/udaily/2016/feb/partnership021816.html
This is where things are going to get very tricky. It is now incumbent on the school districts, mainly Red Clay and Christina, to decide if they even want to move forward without the guaranteed funding. While the funding could certainly be there if the Delaware General Assembly adds a few tweaks to the Governor’s budget, the simple changing of the word “shall” to “may” changes the whole ballgame.
I am very interested in this new initiative of the University of Delaware. Tony Allen, along with another alumnus, donated $100,000 to create this entity.
In terms of violations by the State Board of Education yesterday, many are assuming they had to pass the WEIC redistricting plan in its entirety. This is not true. The key to this is in the language of Senate Bill 122:
…the State Board of Education may change or alter the boundaries of school districts in New Castle County in a manner consistent with some or all of the redistricting recommendations made by the Wilmington Education Advisory Committee in the report issued March 31, 2015, provided that the General Assembly passes, and the Governor signs, a Joint Resolution supporting the proposed changes.
I can’t remember who first said it had to be approved as a whole, but everyone seems to have run with that ever since. Based on the legislation, this is not true. The addendums added by the State Board are completely within their scope to legally do so. The key words are some or all which I bolded for emphasis. However, that does not excuse the obvious other FOIA violations that happened yesterday or the intentional conflict the State Board created yesterday.
By going out of public session with their legal counsel without declaring an Executive Session (which they did in their January board meeting as well), the State Board violated FOIA and public meeting law. Even worse, they may have further violated the law by allowing someone not on the State Board access to this meeting. To complicate matters more, any citizen could have followed them into that meeting because it was still in public session. However, the State Board denied a citizen’s right to do this by barring entrance with a locked door into the area they met. You need a key card to go from the Cabinet room to the State Board offices. So they intentionally blocked a citizen from being able to do this. When the State Board came out of this illegal closed-door session, Tony Allen came out with them along with Secretary Godowsky. I think Tony Allen, at the least, needs to publicly say, to the best of his recollection, exactly what transpired in this meeting.
What does Delaware state code say about this?
§ 10004 Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (h) of this section.
(b) A public body may call for an executive session closed to the public pursuant to subsections (c) and (e) of this section, but only for the following purposes:
(1) Discussion of an individual citizen’s qualifications to hold a job or pursue training unless the citizen requests that such a meeting be open. This provision shall not apply to the discussion by a licensing board or commission which is subject to the provisions of § 8735 of this title, of an individual citizen’s qualifications to pursue any profession or occupation for which a license must be issued by the public body in accordance with Delaware law;
(2) Preliminary discussions on site acquisitions for any publicly funded capital improvements, or sales or leases of real property;
(3) Activities of any law-enforcement agency in its efforts to collect information leading to criminal apprehension;
(4) Strategy sessions, including those involving legal advice or opinion from an attorney-at-law, with respect to collective bargaining or pending or potential litigation, but only when an open meeting would have an adverse effect on the bargaining or litigation position of the public body;
(5) Discussions which would disclose the identity of the contributor of a bona fide and lawful charitable contribution to the public body whenever public anonymity has been requested of the public body with respect to said contribution by the contributor;
(6) Discussion of the content of documents, excluded from the definition of “public record” in § 10002 of this title where such discussion may disclose the contents of such documents;
(7) The hearing of student disciplinary cases unless the student requests a public hearing;
(8) The hearing of employee disciplinary or dismissal cases unless the employee requests a public hearing;
(9) Personnel matters in which the names, competency and abilities of individual employees or students are discussed, unless the employee or student requests that such a meeting be open.
(c) A public body may hold an executive session closed to the public upon affirmative vote of a majority of members present at a meeting of the public body. The vote on the question of holding an executive session shall take place at a meeting of the public body which shall be open to the public, and the results of the vote shall be made public and shall be recorded in the minutes. The purpose of such executive sessions shall be set forth in the agenda and shall be limited to the purposes listed in subsection (b) of this section. Executive sessions may be held only for the discussion of public business, and all voting on public business must take place at a public meeting and the results of the vote made public.
(d) This section shall not prohibit the removal of any person from a public meeting who is willfully and seriously disruptive of the conduct of such meeting.
(e)(1) This subsection concerning notice of meetings shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to the General Assembly.
(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings, including whether such meeting will be conducted by video-conferencing; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.
(3) All public bodies shall give public notice of the type set forth in paragraph (e)(2) of this section of any special or rescheduled meeting as soon as reasonably possible, but in any event no later than 24 hours before such meeting. A special or rescheduled meeting shall be defined as one to be held less than 7 days after the scheduling decision is made. The public notice of a special or rescheduled meeting shall include an explanation as to why the notice required by paragraph (e)(2) of this section could not be given.
(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where meetings of the public body are regularly held, and making a reasonable number of such notices available. In addition, for all noncounty and nonmunicipal public bodies, public notice required by this subsection shall include, but not be limited to, electronic posting on a designated State of Delaware website, approved by the Registrar of Regulations by May 1, 2013, which shall be accessible to the public. In addition, all public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post said notice to the designated State of Delaware website approved by the Secretary of State.
(5) When the agenda is not available as of the time of the initial posting of the public notice it shall be added to the notice at least 6 hours in advance of said meeting, and the reasons for the delay in posting shall be briefly set forth on the agenda.
(f) Each public body shall maintain minutes of all meetings, including executive sessions, conducted pursuant to this section, and shall make such minutes available for public inspection and copying as a public record. Such minutes shall include a record of those members present and a record, by individual members (except where the public body is a town assembly where all citizens are entitled to vote), of each vote taken and action agreed upon. Such minutes or portions thereof, and any public records pertaining to executive sessions conducted pursuant to this section, may be withheld from public disclosure so long as public disclosure would defeat the lawful purpose for the executive session, but no longer. All public bodies in the executive branch of state government that are subject to the provisions of this chapter and meet 4 or fewer times per year shall electronically post draft minutes of open public meetings, identified as “draft minutes,” to the designated State website approved by the Secretary of State within 20 working days after the conclusion of the meeting. Prior to being posted, draft minutes may be distributed to members of the public body who were present at the open public meeting. Draft minutes may continue to be revised and corrected up until final minutes are approved by the public body at an open meeting. All public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post final approved minutes of open public meetings to the designated State of Delaware website approved by the Secretary of State within 5 working days of final approval of said minutes.
(g) Every regularly scheduled meeting of a public body shall be held within the geographic jurisdiction of that public body. All such other meetings shall be held as follows:
(1) A public body serving any political subdivision of the State, including, but not limited to, any city, town or school district, shall hold all such other meetings within its jurisdiction or the county in which its principal office is located, unless it is school board training that has been approved by the Secretary of Education as beneficial to school board development activities.
(2) For the purposes of this subsection, a “regularly scheduled meeting” shall mean any meeting of a public body held on a periodic basis.
(3) The provisions of this subsection, insofar as they are not practicable, shall not apply to any emergency meeting which is necessary for the immediate preservation of the public peace, health or safety, or to a meeting held by a public body outside of its jurisdiction which is necessary for the immediate preservation of the public financial welfare.
(h) This section shall not apply to the proceedings of:
(1) Grand juries;
(2) Petit juries;
(3) Special juries;
(4) The deliberations of any court;
(5) The Board of Pardons and Parole;
(6) Public bodies having only 1 member;
(7) Public bodies within the legislative branch of the state government other than the House of Representatives, the Senate, the Joint Finance Committee, the Joint Committee on Capital Improvement, the Joint Sunset Committee, Legislative Council, committees, excluding ethics committees, specifically enumerated and created by Resolution of the House of Representatives and/or Senate or task forces specifically enumerated and created by Resolution of the House of Representatives and/or Senate;
The question here becomes if the State Board of Education is considered part of the legislative branch of the state government. They do vote on regulations but I do not believe they are considered a legislative body. The State Board did not call for an executive session yesterday and even if they didn’t, the board did not vote to convene with counsel. This was not a collective bargaining situation nor was it pending litigation. I’m sure the State Board will come up with some lame excuse for why they did this but I would strongly urge the Delaware Attorney General’s office to do more than a “don’t do it again” slap on the wrist. This is two months in a row they have done this.
Many have asked where the “shall” that was changed by the State Board to “may” actually happens. This can be found in the WEIC Addendum dated 2/11/16.
Basically, the State Board doesn’t want to stop the whole redistricting process if the funds aren’t available. They obviously want improved educational outcomes (based on standardized high-stakes testing scores). In essence, they don’t want to be the bad guy if funding snafus comes up and have the finger pointed at them if it all went down in flames based on funding or lack thereof. The question now becomes if the State Board actually found a way to dance around the funding issue. WEIC will assuredly consult with the affected districts and may very well come back and say “It’s over.” The State Board could say “Well, we changed the word to ‘may’ so we aren’t bound by that so we are going to move forward.” But now it is an unfunded mandate. If the plan does pass the General Assembly and is signed by Governor Markell and funding stops from the state budget, the local districts would be on the hook to fund this initiative. Christina and Red Clay can not afford that. The State Board found a way to further weaken traditional school districts and further evaporate their finances. They set themselves up in their own trap. Granted, they could not do this until June 30th of this year, because that would be the completion of the approval stage and they can’t suspend the timetable until it reaches the conclusion of that stage. From page 10 of the official redistricting plan.
As for the Christina priority school plans, their board did submit these to Secretary Godowsky a few months ago. These are the same plans the district drew up last year as part of the brokered agreement between the Governor’s office and Christina based on the WEAC recommendations. But in an article with the News Journal, Godowsky did not gave a 100% guarantee these plans would be approved:
The first condition attached is that the Department of Education approve a plan to provide extra resources to Christina School District. That plan came out of the clash over priority schools in early 2015, and Secretary of Education Stephen Godowsky said he was optimistic it would be approved.
Godowsky was also optimistic the harsh participation rate penalties would not be included in the Delaware School Success Framework and two weeks later they were after he did a complete turnaround on his earlier announcement to the press. It is my opinion Godowsky likes to soothe the moment and say what he thinks people want to hear but when the directive comes down from his boss, he is forced to change his stance.
While the whole redistricting plan has many moving parts, the State Board complicated matters even more yesterday. Whether you agree or not with the plan, the onus was on the State Board to do the right thing. They clearly did not and instead played political games and toyed with wording in a way that gives them a quick exit without looking like the bad guys. However, there was a lot of media there and they came across looking like complete and utter idiots in my opinion. With the exception of board members Dr. Terri Whittaker and Jorge Melendez, I have to wonder why we even need this State Board of Education in its current line-up. They are not publicly elected and they cause more harm than good.
Elizabeth Scheinberg with Children & Educators First asked me to repost an article she wrote yesterday. This is in response to Transparent Christina’s post last week about John Young’s FOIA petition.
Red Font/bolding is for emphasis.
TransparentChristina has shared some posts about a recent CSD FOIA with no comment mechanism. It’s a tactic we often see associated with political bullies, a markellian method to stifle public discourse.
So, let’s have at it: FOIA is NOT Free. I disagree with TC. I wasn’t present at the meeting and didn’t hear the public comment. However, I can offer a rebuttal on generalities:
FOIA is a fantastic tenet of our democracy. With little exclusion, FOIA creates a lens for the public to look through and evaluate the performance of both elected and appointed officials. It is invaluable. But, it does come with a price tag.
A recent CSD FOIA ran the district upwards of $3000.00. Not a lot when compared to the budget of that beast, but significant enough to those who care. I care. CSD is in a financial crisis. And while I love FOIA (and I really, really do) I can’t justify what my district was forced to expend to satisfy a malicious and mostly frivolous FOIA. (Already noted in a previous post that 1 facet of the FOIA was conceded to by CSD; as for the other two issues, the DOJ found for the board, not the complainant.)
Forced to respond?
Yes, TC contends that “the public body has to DECIDE whether to respond via counsel to the allegation.” That’s true on face value. But, only on face value. The body could choose to ignore that notification and request for evidence sent by the Department of Justice. This will produce two outcomes, neither preferable to the engaged constituent:
- First, the body runs the risk of creating a public perception that it is above the law, above even the Department of Justice. This route will tarnish the body’s public perception = a public less willing to support it.
- The body run the risk the FOIA opinion will be founded on whatever evidence the complainant provides – legitimate or fraudulent. I had the pleasure of communicating with the Department of Justice this past week. The department was most helpful in explaining what happens when the subject of FOIA does not respond to the DOJ’s inquiry.
“opinions will be based on the evidence available.”
Refusal of the body to participate = radical neglect that defeats the entire judicial process around FOIA. It impugns the SPIRIT of FOIA! And leaves it open for manipulation because the only “evidence” provided will be that of the complainant.
The COST of FOIA:
Moreover, regardless of the body’s decision to respond or not, the FOIA has already begun to cost tax payers’ dollars. How? When the FOIA petition reaches the DOJ, the department is obligated to assign an attorney to investigate the allegations. The hours consumed by the investigation of the petition and research into both the application of the law in the past and present and the evidence presented drain resources (financial and manpower) that could be dedicated to a host of other investigations occurring within the department. While the DOJ may budget funds to a FOIA department, the absences of a current petition does not mean that department personnel are idle. It is fair to say their talents are used elsewhere within the department. The cost clock is ticking.
Thus, the Outcome of the body not responding does not mean FOIA is FREE. There is still a cost born by the tax payers – the cost of DOJ’s investigation is supported by tax payer provided funds!
Superfluous FIOA and Malicious Intent:
I’ve written my fair share of FOIA over the years. It’s a necessary process and a right guaranteed by our democracy. It holds public bodies accountable for their collective and individual actions. However, it can also be abused. In the case of the Christina FOIA, there has been a limited dialogue and deep misunderstanding propagated by those who wish to claim winner-ship of the FOIA.
The petition stated
Based on these 2 concerns in combination, I am asking for clarification of the previous FOIA opinion in order to ensure the CSD BOE acted properly. It is my ardent hope that we did so, but I feel we need to confirm this in light of the Appoquinimink FOIA opinion. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/
It appears the petitioner is acting in the best interest of the pubic body. However, in the comment section of this post, the petitioner goes on to make this accusation:
And there you have it: That this petition provided clarification to the petitioner on several fairly recent FOIA opinions issued by the DOJ was secondary to the petitioner’s assertation that his fellow board members failed to learn from past experience and more importantly that they “secretly traffic information” to eachother. The DOJ opinion essential deems this malicious accusation to be unfounded. It did not opine of any secret or otherwise information trafficked between the body’s members.
This was a superfluous and malicious filing. Had the body voted to ignore the Department of Justice’s communication, the body would have lost its opportunity to provide widely important exculpatory evidence and the finding might have been radically erroneous.
FOIA IS NOT FREE. And while it is open for abuse, the thoughtful and correct course is for a body to respond always. It is only way to reach a unbiased finding based on evidence and law.
And if someone is telling you otherwise, they probably have oceanfront property in Tennessee to sell you too.
An attorney representing a student in the Brandywine School District filed a FOIA complaint against the Brandywine Board of Education. The matter concerned expunging a disciplinary record for a student. While the report does not go into details, obviously, of who the student was or the incident that led to a disciplinary action, that was not the basis for this FOIA complaint. The Brandywine board decided against expunging the student’s record in executive session but did not vote on the action item on their agenda in public session.
From the legal opinion:
FOIA requires public bodies to provide notice prior to a public meeting by issuing an agenda that identifies the issues that a public body expects to discuss or take action on during that meeting. See 29 Del. C. § 10002(a). If the public body intends to go into executive session, it must so indicate in the agenda. See id. Once in executive session, the public body may discuss public business but may not vote on any public matter. 29 Del. C. § 10004(c). Any decision made regarding discussions of public business during an executive session must be made in public, and the record of the vote must be public. Id. Additionally, we have previously held that consensus votes during executive session are not permitted. See, e.g., Del. Op.Att’y Gen. 06-IB12, Del. Op.Att’y Gen. 05-IB29, Del. Op.Att’y Gen. 96-IB32. Any decision made by a Board, even if it is a decision to decline a request, must be made in public.
The Board does not have any procedures for considering a student’s request to expunge his or her record. The process is discretionary. Counsel for the Board argues that there was no vote in executive session. The statute does use the term “vote,” but we take a practical view and look at whether a matter was “decided,” even if the body avoids a vote. The Board sent a letter “declining” a proposal; this acknowledges that a decision was made. Given the events, it seems most plausible that the decision was made in executive session, but perhaps it was made after the meeting was over. In any event we cannot say that the decision was made publicly. We believe the import of the statute’s language that “all voting on public business must take place at a public meeting and the results of the vote made public” is that the public should be able to discern how and when a matter is decided. 29 Del. C. § 10004(c). For example, one solution here could have been for the chairperson to call for a motion in the regular session. Under the circumstances, the failure of the Board to take a public vote amounts to a violation of FOIA.
We find that the aforementioned Board action regarding a student’s request to expunge a record during executive session at the July 2015 Board Meeting violated FOIA. The Board denied that request by a vote or by consensus achieved while in executive session or in some other non-public forum. To remedy this violation of FOIA, we direct the Board to either ratify the aforementioned decision in a public, regular session or formally reconsider the request for expungement and vote upon it in a manner consistent with the conclusions and determinations set forth herein.
The attorney representing the student received an email from the district’s attorney which stated:
On July 21, 2015 counsel for the Board sent an email to Mr. Norman which reads, “Steve. Given the strength of the District’s position it declines your client’s proposal to clear his record.”
While this does not make this a legal ruling, but rather an opinion, if the party who filed the FOIA complaint wished to pursue legal action, they certainly could. However, by state law, the Department of Justice could not sue since school districts are a part of the state. Last month at the Delaware State Board of Education there was an appeal matter on the board’s agenda. This concerned an appeal against the Brandywine Board of Education. It is not known if the two are connected. To read the full ruling, please go here.
Delaware Charter Schools don’t tend to have special board meetings for good reasons. Yes, the Head of School went out on maternity leave, but I’m sure that was expected to happen as it usually does when someone, you know, has a baby. But if they may need to take action on their charter and to discuss personnel in executive session…that’s something different. It’s all in there:
This is following their special board meeting on 9/23 of which they did not post an agenda (violating Delaware Public Meeting laws), nor did they post an agenda for this meeting, but it is a special board meeting. As well, their Facebook page has the following message this evening:
We’ve had a few days off, but we’re excited to see all of our students at school tomorrow! Make sure you’re there! It’s a super important day!
In response to my reblog of a post on Kilroy’s Delaware, someone made a comment on my side of things, and it is very damning to Christina School District. Meanwhile there are multiple accusations flying all over the place regarding a potential mole on Christina’s board.
I don’t understand. Is this meeting called by the school board or Markell? Is Kilroy saying Markell has minions on the Christina school board who will do his bidding to force Dr. Williams out?
As a CSD resident and parent, I don’t think that it is wrong to evaluate Williams’ competency and ability to lead the district. My question would be, why has it taken this long? Under his watch we have seen an increase in unnecessary spending that has created an environment of financial instability.
I know, I know, cost of running the district have gone up and monies coming in have remained flat. I get that, and I accept it, but Dr. Williams and his henchman, Bob Silber, have known this for the last three years! They have seen this coming, yet they chose to give car allowances to top level district employees…..BMW, Mercedes and Lexus vehicles being paid for with MY tax dollars. Cell phones for hundreds of district employees paid for with MY tax dollars. Travel reimbursement for regular job travel, meaning these people knew they’d be driving a lot when they took their positions, amounts that register in the thousands of dollars. The head of HR begin reimbursed for freight costs. What is the head of HR ordering, presumably for district business, that she has to pay the freight cost personally and then be reimbursed? These are the kinds of things that are going on under Dr. Williams’ watch. And this just scratches the surface! And don’t forget the two failed referendum.
So, should Freeman (there is no “d” in his name, Kilroy) be under review? ABSOLUTELY! The board needs to take a long, hard look at how he has run the district for the last three years. And not only him, but his chief staff members. There is shady business afoot in CSD finance and personnel.
Having said all of that, I hope and pray that there are not Markell-influenced members of the board who are trying to help the governor manhandle the future of this district. The last thing we need is this US DOE want-to-be poking his bald head any further into our business. He obviously does not know, nor does he care, about true education in this state. His veto of HB50 sealed his fate, and how he’s in a panic to try to clean up his name, but he needs to find another way to do it. And he needs to keep his ugly mitts off of our children’s future.
Those are some very serious accusations against Freeman Williams and other administrators within the district. The next couple weeks should be VERY interesting in Christina. After failing to pass two referendums, declining enrollment due to parents choicing out of district, and the whole redistricting effort in Wilmington to get City of Wilmington schools out of Christina, this district has some large battles ahead. Is there dissension on the board? It appears so, and how it shakes out will be anyone’s guess. Does Governor Markell have a hand in this? This I do not know at all and I’m kind of doubting he would tell me if I asked him!
In terms of the legality of the whole agenda issue, the question looms based on the recent Attorney General opinion on Appoquinimink’s school board discussing their Superintendent Matt Burrows’ contract in executive session. Should Freeman Williams’ “accountability” hearing be a matter of private or public session. Between here and Kilroy’s, comments are swinging more towards executive session, but the issue of legality should be resolved prior to this meeting, not after.