As announced by Newsworks and the News Journal last week, Governor Markell stepped into the battle between the Wilmington Education Improvement Commission and the Delaware State Board of Education. What he also did was change the context of the legislation as written in Senate Bill 122. By “brokering a deal”, he has effectively eliminated the transparency part of the whole redistricting initiative. From Senate Bill 122, signed by Governor Markell on 8/4/15:
(4) The State Board shall base its decision to change or alter school district boundaries on a record developed in compliance with state open meeting laws.
Governor Markell did not let the public attend this meeting. Furthermore, by not allowing all 23 members of WEIC to attend this meeting, and only four members, three of which were the chair and two co-chairs, they did not have the authority without a vote to even attend meetings like this. So much for the transparency promised by WEIC! This isn’t the first time members have operated in secret meetings that weren’t announced until afterwards. The first involved the Colonial School District when they announced they would not send their students to Red Clay Consolidated School District after their board voted not to.
Does the Governor have the authority to usurp a law he signed? I looked in Delaware’s Constitution and state code and couldn’t find anything directly referencing this. I sent an email to many of the individuals involved along with the attorney(s) for Governor Markell’s office, the Delaware State Board of Education, and the Wilmington Education Improvement Commission. I received one response which I will talk about after I show the email I sent.
From: Kevin Ohlandt <email@example.com>
To: “firstname.lastname@example.org” <email@example.com>; “firstname.lastname@example.org” <email@example.com>; Tony Allen <firstname.lastname@example.org>; email@example.com; “firstname.lastname@example.org” <email@example.com>; Gray Teri <firstname.lastname@example.org>; Donna Johnson <email@example.com>; “firstname.lastname@example.org” <email@example.com>; Hickey Catherine T. (DOJ) <firstname.lastname@example.org>; Denn Matthew (DOJ) <email@example.com>
Sent: Thursday, March 10, 2016 3:26 PM
Subject: Governor’s Meeting With WEIC & State Board
Good afternoon all,
I’m working on an article about the WEIC/State Board/Governor’s Office meeting that took place on 3/3/16 for Exceptional Delaware. I have several concerns regarding the transparency around this meeting and I was hoping some or all of you could clarify some of my concerns.
1) House Bill 148 states (c) Meetings of the WEIC and all WEIC committees shall be public, unless designated for executive session. Voting membership in WEIC shall be limited to subsection (a) of this section.
Would the meeting that took place on 3/3/16 count as a WEIC meeting? If they were able to discuss the WEIC plan in any way without public notice, could that not be considered a FOIA violation by not posting an agenda for this meeting? If this was considered an executive meeting of the WEIC executive committee aren’t they still beholden to Delaware open meeting law? Does WEIC even have an executive committee since it is not publicly listed on their website at http://solutionsfordelawareschools.com/?
2) Senate Bill 122 states (4) The State Board shall base its decision to change or alter school district boundaries on a record developed in compliance with state open meetings laws.
Since the language is now changing again in the final report, without the ability of the public to observe this process and allow for public comment based on the 3/3/16 meeting, and there was no public notification of this meeting seven days prior to the meeting, did this meeting legally happen? Furthermore, are the State Board, WEIC, and the Governor’s office all in violation of FOIA by even having this meeting?
3) What legal authority does the Governor have for suggesting changes to a “final plan” based on the law in Senate Bill 122 which was signed by him on 8/4/15?
4) Does the Governor have the authority to step over legislative authority and intervene in a plan that does not include the Governor or any of his staff as part of the membership of WEIC and not have that meeting be open to the public?
5) HB148 limits WEIC to 21 members, yet there are 23 members on the commission which is in violation of the signed law. Furthermore, each member shall have full voting rights but they were not given an option to take action on participating in, as a collective body or in part, the is meeting on 3/3/16, nor were they given an option to publicly vote on this action.
While I support the WEIC plan after months of hemming and hawing over the whole thing, I just want to make sure someone couldn’t open the door to a legal challenge down the road. I know a lot of things happen in Delaware behind closed doors, which is not something that matches with the Governor’s public statement that “Sunshine is the best disinfectant. Transparency and accountability of government is essential.” The law is the law. We have them for a reason.
I fully understand the very tight timetable involved with this action and I also agree with the WEIC vote to send the original plan back to the State Board of Education. Furthermore, I don’t feel the State Board’s bungling of the final plan helped anything involved with this matter and got us to the point we are at now. But we cannot, and should not, as a state, have any meetings in the dark without public knowledge. This is one of the core reasons Delaware received a failing grade in a recent and national state transparency rating.
There is no reason the Governor couldn’t have made this letter public and WEIC could have then called for a meeting with a full agenda published prior. Yes, they have done so to take action from this non-public meeting. Existing law does allow for an agenda to be published within hours of a meeting if an emergency exists, and this could very well be seen as an emergency, so WEIC is not in violation of their agenda for the 3/14/16 meeting. But no agenda was given at all for a closed-door meeting which violates the letter of the law.
I did attempt to look for parts of this in Delaware State Code regarding the authority of the Governor with situations like this and I was unable to find them. It doesn’t mean they don’t exist, but I couldn’t find it. I would rather have the facts in a situation like this.
I await your response on these concerns.
The only person from this entire list who responded back was Tony Allen. He indicated he would follow-up with me the next day (he didn’t). That was last Thursday afternoon. As well, he advised me this was not a commission meeting. Whether he thinks that or not, Governor Markell referred to it as a meeting with WEIC on a video from the News Journal:
So if the Governor, who arranged the meeting, is calling it a meeting with WEIC, I would say that is most definitely a WEIC meeting. Delaware… the home of people thinking one thing and a whole other thing going on behind closed doors…
To read the letter Tony Allen sent the WEIC members AFTER THE FACT, read below. Meanwhile, WEIC will “officially” meet tonight to decide on the secret meeting resolution. The State Board of Education has their third (fourth if you want to be technical) on the WEIC redistricting plan on Thursday.