Smyrna Update: Board Meeting Tonight & Patrik Williams Evades Transparency

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.

 

Delaware Dept. of Justice Finding On Gateway Lab School FOIA Complaint

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!

In Today’s Game: Can You Spot The FOIA Violation?

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!

WEIC: What Happens Next & Separating Truth And Rumors

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

– Tony

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?

(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.

Shall

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.

shall2

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.

 

 

 

Contrary To Popular Belief: FOIA’s Are NOT Free

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:

  1. 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.
  2. 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.
    DOJ’s explanation:

     “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:

…Board members need to understand their roles and those that withhold information from others simply impede the governance necessary to help children. Worse, others don’t seem to take past experience in governance and apply the positive parts while discarding the negative. I’m not speaking of any single member, but some about all.
It’s a disease, and I think I know how you feel about those that flout the FOIA statute and act to secretly traffic information that board members need to make informed decisions. https://transparentchristina.wordpress.com/2015/08/22/my-foia-complaint-filed-in-response-to-the-8415-csd-boe-meeting/

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.

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.