Major FOIA Violations Found By Delaware DOJ At DelTech Community College Regarding Open Meetings & Transparency

I filed a Freedom of Information Act complaint against DelTech Community College on May 10th, 2017.  The Delaware Department of Justice issued their legal opinion on the FOIA complaint today.  They found that DelTech violated open meeting law with their College Educational Foundation and The Collegewide Criminal Justice Advisory Board.

First, the Attorney General had to determine if these two entities are public bodies.  They found both are.  Especially noteworthy is their Foundation.  Because their Foundation consists of seven members from the college’s Board of Trustees, and four board members represents a quorum, they are a public body that must make their meetings public and produce minutes from each meeting.

…any gathering of the Foundation that includes a quorum of the Board of Trustees, and during which public business is discussed, is considered a meeting of the Board of Trustees to which FOIA’s open meeting requirements are applicable.

I did name other groups at the school, specifically their Collegewide Safety/Security Committee, Ad Hoc President’s Council, President’s Council, and Learning Community Collegewide Steering Committee.  Because those groups are made up of staff members, they are not considered a public body thus they are immune to open meeting law.

It’s hard sometimes to win these things.  There are ambiguities in state code that can turn a predicted victory into a moment of defeat.  But I was very pleased with the outcome of this one and what it means for other such entities floating around Delaware.  Time to do some reaching out to other various foundations in the state.  For those who think this might apply to Delaware State University or University of Delaware, think again.  They are exempt from FOIA law in Delaware.

To read the full legal opinion issued by Deputy Attorney General Carla Jarosz, please read below:

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My Email To Attorney General Matt Denn and Governor Carney Regarding Family Services Cabinet Council

I sent an email to Delaware Attorney General Matt Denn and Governor Carney a few seconds ago alleging the legal opinion in regards to my FOIA complaint about the Family Services Cabinet Council was false in nature.  Since the Council disburses funds, they fit the category of a public body.


Hello again,
While I would sincerely hope this very big omission was not intended, I found categorical proof the Family Services Cabinet Council IS a public body as defined within Delaware State Code.
From Title 14:

§ 1605A Prevention component.

The Family Services Cabinet Council (Council), with the Department of Education and the Department of Services for Children, Youth and Their Families acting as lead agencies, shall administer a program to offer prevention-related student support services (prevention services) to students to prevent them from becoming discipline problems and from failing academically in our schools. Within the limits of appropriations made for this purpose, the Council shall provide rules and regulations for the award of prevention grants and the conduct of prevention programs authorized under this section, subject to the following limitations:

(1) The Council shall issue prevention funding to local school districts proposing to establish an integrated plan to deliver prevention services including, but not limited to, academic tutoring and student mentoring programs to provide at-risk students with the extra help they may need to succeed academically and with positive adult role models; outreach programs to promote parental, family and community involvement in students’ academic studies and in reducing and resolving school discipline problems; school-linked support services to help students with family or health problems that may be adversely affecting their academic performance and their conduct at school; training to help students and school personnel resolve conflicts peacefully and non-disruptively; and assistance to help teachers better manage the behavior of students in their classrooms.

(2) Applications for funding pursuant to this section shall be made by school districts in accordance with procedures and standards established by the Council. Each applicant shall set forth an integrated plan to provide prevention services consistent with paragraph (1) of this section. To avoid duplication of effort, maximize the impact of limited resources, and increase the effect of efforts by state, local, community and private, nonprofit agencies through increased coordination and cooperation, the Council shall give preference to applications which:

a. Are submitted by 2 or more school districts working in concert, where appropriate;

b. Include private, nonprofit agencies and community organizations as partners in the application, and identify the roles those agencies and organizations are to play in delivering prevention services in the community;

c. Indicate how grants from the federal government and foundations will be used or sought to help deliver prevention services in the community; and

d. Identify the roles state and local agencies are to play in delivering prevention services in the community.

(3) The Council shall provide technical assistance to districts preparing applications and ongoing assistance to districts awarded funding pursuant to this section.

(4) The Council shall establish a timetable for the award of grants pursuant to this section which shall provide, at minimum, for a period of 1 month for joint planning between the Council and the applicants that the Counsel selects as finalists eligible for a funding award. During such joint planning, the Council and the applicant shall refine the applicant’s prevention plan, ensure that the plan makes cost-effective use of the resources and services of state, local, community and private, nonprofit agencies, and consider the incorporation of successful elements of other districts’ prevention programs into the applicant’s plans. Final awards shall be made by the Council on or before January 15 of each year for the subsequent school year, contingent upon the appropriation of funds for such purpose in the annual appropriations act.

70 Del. Laws, c. 215, § 1; 71 Del. Laws, c. 180, § 92.;

And in the legal opinion issued today from the Attorney General’s Office:
Delaware’s FOIA defines a “public body” as:
any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:
(1)        Is supported in whole or in part by any public funds; or

(2)      Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or

(3)      Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.[21]

Since the Family Services Cabinet Council DOES disburse public funds, including grants, it IS a public body and needs to call itself that.  This is not the first time I have had to do my own research on a FOIA complaint opinion rendered by the Attorney General’s Office and found the opinion to be invalid because not enough research was done to see HOW it was a FOIA violation to begin with.
Thank you,
Kevin Ohlandt

Governor Carney’s Office Cites “Executive Privilege” With Family Services Cabinet Council FOIA Complaint

The Delaware Attorney General’s office released a Freedom of Information Act legal opinion today giving Delaware Governor Carney the right to use executive privilege for a council designed to improve family services in Delaware.  In other words, they are allowed to hold non-public meetings and invite whomever they choose with no one the wiser.  The Attorney General’s office agreed with Carney’s office because of a very bad “separation of powers” clause in state law. Continue reading “Governor Carney’s Office Cites “Executive Privilege” With Family Services Cabinet Council FOIA Complaint”

Attorney General Opinion On Delaware Pathways Steering Committee Issued Today Is Sloppy, Inconsistent, & Incorrect

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:kevino3670@yahoo.com]
Sent: Tuesday, October 11, 2016 9:23 AM
To: OpenGovernment (DOJ) <OpenGovernment@state.de.us>
Subject: FOIA Complaint

 

 Good morning,

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.  

Thank you,

Kevin Ohlandt

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

VIA EMAIL

 

Mr. Kevin Ohlandt

9 Crosley Ct.
Dover, DE 19904
kevino@yahoo.com

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

                                                                        Kim Siegel

                                                                        FOIA Coordinator

KS/ks

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.
In doing an extensive search this afternoon, I have not been able to see anywhere in the State of Delaware, on the Delawarepathways.org website, or any such place on the World Wide Web where Alison May’s assurance of transparency actually took place.
This attempt at a good-faith effort on the Dept. of Education’s response to the complaint seems a bit odd considering this does not exist.  And while I know the Governor is not obligated to publicly report on where he speaks publicly, the fact that no documentation exists anywhere in regards to this meeting on the internet aside from I wrote about it on Exceptional Delaware and a few tweets from those associated with this group, I find that to be very suspect.  While Ms. May states “this was an oversight on the part of the involved State agencies and organizations and not an intentional effort to circumvent FOIA requirements” in her response, the very minutes she attached to the DOE’s response indicate Luke Rhine from the Department of Education would be in charge of coordinating staffing.  And since Alison May from the Dept. of Education was the responding party for the response to the complaint, that leads me to the belief that the Delaware Dept. of Education would have been the State Agency to fulfill FOIA requirements for a public body.  Since they did not, I take issue with Ms. May’s response about not coordinating with other state agencies and do not believe that to be a true statement. In regards to the reasoning for not making this meeting public to the citizens of Delaware, a statement of “oversight” bears little meaning in the contextual framework of following state code.
In a prior FOIA complaint of mine against the Delaware Dept. of Education, #15-IB12, Danielle Gibbs, the Chief Deputy Attorney General wrote:
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.
The notices and agendas for the AFWG meetings held in September violated FOIA because they were not posted at least seven days in advance of the meeting as required by 29 Del. C. §10004(e)(2).  We find that these errors were technical violations that did not negatively affect substantial public rights.[17]  Therefore, we find that no remediation is required.”
Given that the words “substantial public rights” means no action was taken at those meetings, it was during a regulatory process for Regulation 103 where key issues concerning that regulation would have been discussed at the AFWG meetings.  So in a finding that “substantial public rights” did not apply in that situation with pending legislative action, I take issue with that.  As well, in the attached minutes from the minutes for the Pathways Steering Committee, there is talk of legislative action and a discussion with the Delaware General Assembly.
In FOIA Complaint #13-IB05, issued October 1st, 2013, citizens filed a complaint against the Charter School Reform Working Group in regards to having closed-door meetings not open to the public.  In that Attorney General opinion, it states the following:
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”).
While that opinion was an appeal to an earlier complaint, it states the following:
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;

But in the minutes on the Googledrive for the steering committee, it said this:
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;
While the two items look very similar on the surface, the action of taking out Dr. Brainard from the updated minutes which were created on October 24th by Luke Rhine, which the Googledrive suggests that no action was directed to Luke Rhine, the main Delaware Dept. of Education representative, when in reality it was.  This change is substantial.  The opinion issued today states that no action was taken at this meeting so the perception that no “substantial public rights” violations occurred by not making a public body meeting public is visibly changed between the two meeting minutes.  As well, if the Delaware DOE is the state entity that answered the FOIA complaint and is in charge of posting information about it, why is there absolutely nothing on the Career and Technical Education portion of their website?
We are also expected to believe the minutes and agenda they presented are accurate when they were created at the earliest, six days after the meeting, and at the latest, seventeen days after the meeting:
dtccgoogledrivepathways
As well, the response from the Attorney General’s response today shows a link to a website that was not included in the original DOE response to the complaint which means there was further communication between the Attorney General’s office and the parties to which I issued the FOIA complaint against.  In all other FOIA complaints I have submitted, I have been a party to those communications every single step of the way but not with this one.
The Deputy Attorney General who wrote this opinion, Danielle Gibbs, handled a FOIA opinion from a complaint I submitted in 2015.  She made sure I received all communication from the Delaware DOE on that every single step of the way.  But this time I guess I wasn’t so blessed.  She actually wrote in the FOIA opinion issued today:

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.

When you go to this website, there are also extensive plans and reports, involving millions upon millions of dollars of funding.  I would think that would be crucial for the public to see.
pathwaysstrategicplan
To see these large amounts of funds being talked about over the next three fiscal years, please go here: DE Pathways Priority 4 Funding Plan 10/6/16.  Feast your eyes on this document, created on October 6th, one day prior to the Steering Committee meeting.  Furthermore, the two entities planning this funding are not even state agencies, they are 3rd party non-profit companies: United Way of Delaware and the Rodel Foundation.
We have three entities involved with this FOIA complaint: the Delaware Dept. of Education, Governor Markell’s office, and Delaware Technical Community College.  How did the college get involved?  If you look at the Googledrive, the website is listed as:
This is a Del Tech website.  Why is Del Tech storing the minutes for this when it is supposed to be under the authority of the DOE?  And why is Markell’s office issuing the agenda (ten days after the fact)?  When I do a Google search for the past month using “pathways” “steering committee” “dtcc” and “minutes”, nothing comes up on the search.  So how would anyone be able to find these minutes without seeing them in a response to a FOIA complaint?  Even if I take out “dtcc” and replace it with “Delaware” nothing comes up.  Furthermore, there is nothing in the meeting minutes even discussing minutes or where these minutes were to be stored for public consumption.  I believe this to be a very sloppy response from all parties involved and further contend this Pathways Steering Committee is not making a good faith effort with transparency.  By allowing this public body to be open to the public, all three parties involved seemed to have communicated extensively with each other after I filed a FOIA complaint.  I will also add that additional communication provided by the other parties to the Delaware Attorney General’s office needs to be provided to me by the Delaware Attorney General’s office post haste.  The Attorney General opinion states it reviewed the website of the Steering Committee but the only way they would have been able to review that was by getting a link for it.  Since there is no viable way to search for this Steering Committee through internet search engines, I contend they were given this website by someone involved with it.
This Pathways Steering Committee, that is making gigantic decisions about students, in secondary and post-secondary setting, with plans for huge amounts of money at state and local levels, is all about substantial public rights.  When the General Assembly decided not to move forward with the Pathways Steering Committee as sponsored by Senator David Sokola with Senate Bill 277, Governor Markell took it upon himself to issue an Executive Order to create this committee.  When our Governor doesn’t get his way with the General Assembly, it seems he has the authority to bypass that with Executive Orders.
What is the point of a FOIA complaint if the Delaware Department of Justice, under the control of the Delaware Attorney General, has no ability to do anything substantial or with any consequences in regards to a FOIA complaint?  Why did they rush through the opinion on this FOIA Complaint without really checking into everything?  Why was there (in my view) an intentional attempt to lock me out of communication concerning this FOIA complaint when that has not happened in the past?  These are the things I want answers for, as well as Delaware Attorney General Matt Denn himself to issue a statement that this public body has to reconvene their October 7th meeting so the public is well aware of this Steering Committee that is deciding the future of thousands of Delaware students with significant amounts of taxpayer funds.
Updated, 4:53pm, 10/28/16: Since I finished this article, I can now see on the Delaware DOE website where they did a link to this on their website.  But it is filled with completely wrong information, as seen below.  First off, this is not a “task force”, it is a “steering committee”.  Second, it was not passed into law on June 14th, 2016 through Senate Bill 277.  It became law through Governor Markell’s Executive Order #61, issued on August 11th, 2016.  Senate Bill 277 was released from the Senate Education Committee on June 15th, 2016, but it never came up for a vote with the full Senate and the bill died as of the end of the 148th General Assembly on July 1st, 2016.
dedoetaskforces

State Board & WEIC Transcription: FOIA Violation, Priority Schools, And Funding

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?

Allen: No

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?

Gray: Sure

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?

Allen: Correct

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?

Johnson: Yes.

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.

 

Brandywine Board Violated FOIA According To DOJ Legal Opinion Over Removal Of Student Discipline Record

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.[2]  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.

**UPDATED**DOE Has Meeting For Assessment Inventory Committee

It turns out there is a Senate Joint Resolution #2 Committee meeting tonight at the Delaware Department of Education in Dover.  When was this announced?  Not a week ago which is required by Delaware law.  As well, who is on the Committee?  We know who the legislators are, but not the rest.  This was announced on the Delaware Public Meeting Calendar on 11/3/15, so I was mistaken about the DOE not giving the required 7 day notice for public meetings, to which I apologized to the DOE in an email this morning.

 

sjr2

 

Breaking News: DE State Rep. Kowalko Publicly Blasts Governor Markell Over Refusal To Release 3rd State Email

Delaware State Rep. John Kowalko and Delaware Coalition for Open Government President John Flaherty responded in a big and public way with the response Governor Markell’s attorney gave to them in regards to a FOIA request for all of his state email addresses.  You can read the response from Markell’s office and see that this FOIA request was in clear violation of Delaware law!

But in true Kowalko style, he doesn’t stop with a letter to the Governor, he issues a Press Advisory on the matter!

Governor Markell only believes in transparency when it fits his own agendas.  He is NOT a Governor for the people, but for corporate interests.  When will the legislators do the right thing and impeach this man?  The Delaware Way is vile and corrupt, and until Delaware wakes up, our children will pay the price.