Sunday, March 28, 2010

Appeal Rationale Doesn't Fly

I suppose this is rather late, but I just got around to watching the video of the School Board meeting in which a few Board members, Directors Maier, Martin-Morris, and Carr I believe, spoke about why they are supporting the District's appeal of the high school textbook decision. Their reasons, however, were all bogus.

It ain't right. We heard this reason in a variety of ways. The position that it is inappropriate for a judge to review School Board decisions. One of them, I think it was Director Martin-Morris, even quoted the law that grants the School Board the authority to make these decisions. Yeah, well, there is another law that does, in fact, give Superior Court judges this right. So get over it. It is right and it happened. I didn't hear any of them whine about the judge having this authority all of the times when the judges upheld the Board's decisions. Strike one.

We did a thorough review. No, actually, they didn't. If you will recall, all four of the Directors who voted in favor of the textbooks said that they did so because they believed that the Board had a very narrow role in this decision and that, so long as the Adoption Committee had followed the proper process, they had to approve the recommendation. Go back and watch the video. Their position at the time was that they were NOT reviewing all of that information about the materials and that they were NOT making a thorough review of the data but that they were just basing their decision on the committee's compliance with the process. Strike two.

We listened to all of the input and considered it. This may or may not be true, but that's not what they told the Court. When the Court asked for the full record of the information the Board used to reach their decision, the materials provided by the District did not include a single bit of community input. It did not include a single email or moment of testimony or submitted information. Not one scrap. So, as far as the Court knows, and, for that matter, as far as anyone else knows, the Board completely disregarded all of the community input on the decision. If that's not true, then why is that what they told the Court? You can't tell one story in Court and then tell another story to the public. Strike three.

You're out.

Not one of the reasons given to support the appeal is valid.

24 comments:

udubgrad said...

This is definitely a frivolous appeal. I suppose they are simply trying to wear down the plaintiffs with court costs. Problem is, they're spending public money against the public interest. Why would the board opt to appeal and throw more money at their bad decision when schools are struggling for dollars? Who is advising them? They may want to check into the possibility of the advisor being some sort of Rasputin-type character.

Melissa Westbrook said...

Considering all they had to do was "review" their decision to satisfy the judge, it seems a waste of time to drag it back into court. And I'd be willing to bet with outside counsel this time.

SolvayGirl1972 said...

Waste of money too.

Maureen said...

Link to video please? (Sorry, I'm feeling lazy.)

udubgrad said...

So let me get this straight--the board makes teachers use "discover math yourself" math books and then approves a performance management policy to punish teachers when math scores are low (because they used the "discover math yourself" books)... Am I missing something here? Why would the board insist on trapping teachers in this "catch-22"? Looks like open season on teachers alright.

dan dempsey said...

udubgrad I like your thinking.....

BUT consider the TEAM MGJ decision making ....

This appeal was filed because the Judge's ruling challenged the SPS right to exclude evidence and make decisions by WHIM.

As SPS has a long established pattern of such whimsical decision making.... Judge failed to appreciate the "Clearly Grandfathered nature" of SPS decision-making.

The Directors Carr, Martin-Morris, Maier, Sunquist are in full support as if this appeal does not fly, .....they will need to learn how to use evidence in decision-making.

This will definitely slow down the rubber-stamping process and hinder corporate efficiency.

The fact that ending whimsical decision-making might enable SPS to get into a closer compliance with RCW 28A.645.020 need also be considered. This would also address some of the complaints mentioned in the "Writ of Mandamus" filed with the Supreme Court on 3-26-2010.

Doing that might indicate that the appealed "decisions of SPS of the last several years" were in fact a "invalid".

Which is exactly why the "Writ of Mandamus" makes the point that if RCW 28A.645.020 is not satisfied then the SPS has no "Correct Administrative Record" and cannot defend itself from Appeal ....

Thus every appeal in such circumstance is an automatic SLAM DUNK you lose SPS.

Such a ruling by the Supreme Court would seemingly make all school directors elected in 2007 responsible for Malfeasance as these four continually vote on the wrong side of such issues.......
.....Then no Superior Court judge would stand in the way of approving a recall petition.

If Attorney Stafne can make this stick ... get ready to gather signatures .......... forcing a recall election.

Visualize a school board of DeBell, Patu, and Smith-Blum rolling until Nov 2011 elections.

If you like this plan how about throwing a few bones Stafne's way ... right HERE

dan dempsey said...

udubgrad said:
"This is definitely a frivolous appeal. I suppose they are simply trying to wear down the plaintiffs with court costs."

I am working with some WA Reps in OLY to introduce legislation in 2011 to require School Districts that lose decisions in any way connected to article IX of State Constitution to pay attorney fees of winner up to $20,000 and if appealed and lost the Max. goes up to 50K.

The only way to stop ongoing SPS lunacy may be to have the SPS pay for both sides major expenses. The ongoing legal mess the SPS creates by ignoring the public and rational thought processes, should not be the citizens duty to pay for to correct.

Charlie Mas said...

The expressions of support were given at the School Board meeting of March 3,2010 during the Board comments.

Directors DeBell and Smith-Blum actually spoke against the District's decision to appeal the decision. Director Patu was absent.

Here is a link to the video.

Here is the URL:
http://www.seattlechannel.org/
videos/video.asp?ID=4490

You'll want to jump to about 106:50 in the video to get straight to that part of the meeting.

LA Teacher's Warehouse said...

Does anyone know how much the district has spent or will spend on the appeal?

Also, how long will the appeal take to work its way through court?

dan dempsey said...

Keith Scully attorney for Plaintiffs estimates plaintiffs will spend 7 - 9,000 on top of the $13,140 spent gaining initial victory.

Shannon McMinimee is now in private practice and likely acting for SPS from there.


If "Writ of Mandamus" action kicks ion at Supreme Court that might upset apple cart immediately.

Does the District have substantive grounds to appeal?

Looks pretty frivolous from here.

Charlie Mas said...

Near as I can reckon, they are appealing the decision because they don't like it.

The legal reasons for their appeal of Judge Spector's decision are narrower than those given to the public. They would have to be since the reasons given to the public are not legal grounds for an appeal.

The court decision was not confined to a review of the record that led up to the Board's vote to adopt these materials
One of the legal reasons they cite is that the judge used information in addition to the information that the District provided. That additional information was the public input that the District neglected to include among the information that they say the Board used to inform their decision. This is really, really bad. Not only did the District exclude public input from the catalog of information they say that the Board used when deciding the high school textbook adoption, but, with this appeal, they are saying that the exclusion of that information wasn't a mistake or an oversight but was intentional. They are saying that public input should not be a factor in the decision. Nice.

The court disregarded a yearlong instructional materials process that the School District followed prior to making its decision;
I'm not sure how they can determine that the Court disregarded anything. The Court did make reference to the process and the process was discussed in Court, so I don't see how they can say that the Court disregarded it. The Court, however, didn't have the duty to review that process but to review the Board's process.

The court substituted its judgment for that of the School Board and it is the School Board's duty to make decisions for the District about adoption of instructional materials.
This simply isn't true. The Court remanded the decision back to the Board. The Court didn't decide; the Court directed the Board to make a proper and well-considered decision. Had the Court decided to approve or reject the textbook adoption, then this question might be worth discussing, but since the Court only directed the Board to decide, I don't see how this accusation has any legs at all.

Marie said...

I don't get why you keep saying the court didn't get the testimony of the public. They did get it from the district within 20 days, because the district submitted the recordings of the meetings where the adoption was discussed.

Melissa Westbrook said...

Marie, Dan can help me out here but I believe the district was asked by the court about ALL public input including e-mail, phone messages and snail mail and the district said it had received some but it was not part of the record (either not submitted or unavailable).

Apparently, this was not good enough for the Court to only have the recorded public meetings as public input when the district admitted there was other input. I agree because not everyone can attend a public meeting on one night and ALL input received by either the Board or the district should be part of the public record.

Central Mom said...

Not only that, Marie, but the decisionmaking to be done by the Board is often FINISHED or at least close to complete by the time a proposal comes on the Board agenda for introduction/vote.

Plus MGJ has been quoted as saying public testimony at board mtgs is a legal necessity, but not necessarily a place she takes consideration on an issue.

So if they don't use email, snail mail, small group mtgs, etc., just when will public testimony actually make a difference??

That is why the initial results of the lawsuit cheered so many parental and community activists, including myself. It showed that the District repeatedly gives community input short shrift on items the District thinks are For Educators and Administrators Only.

But, guess what, the community is an equal partner and better start being treated as such in a demonstrable way.

Charlie Mas said...

The Court requires that the information be submitted in paper and ink, not links to a streaming video and not on audio tape.

In addition, any materials submitted to the Board along with public testimony was absent from the record. Three minutes isn't really enough time to make a cogent argument and support it with facts, so the supporting materials that people submit is a key element of their testimony, and it was absent from the record.

I have been told by a number of Board members that by the time a motion comes up for vote it is too late for the public to exert any influence. For a lot of motions, however, that is the first chance that people get to speak on those issues.

udubgrad said...

Thanks for the link to the school board meeting, Charlie. One board member actually said that if they don't appeal, "it would put the district in the place of always thinking what the courts would do on any decision the board makes." Isn't that what they're supposed to think--how the courts would view what they're doing--checks and balances? Why does this administration think it should be excused from checks and balances? Is this what the Broad Academy teaches? This is shocking stuff.

Charlie Mas said...

With or without a successful appeal, every citizen will still have the right - by statute - to appeal any decision (or non-decision) of the Board to a Superior Court judge.

So the idea that this decision makes the Board think that the Court could review any of their decisions is an appropriate idea BECAUSE IT IS TRUE.

dan dempsey said...

Dear Marie,

Read RCW 28A645.020

Within twenty days of service of the notice of appeal, the school board, at its expense, or the school official, at such official's expense, shall file the complete transcript of the evidence and the papers and exhibits relating to the decision for which a complaint has been filed.
Such filings shall be certified to be correct.

Every piece of information sent to the board is to be included. A video is not a transcript as it includes lots of other fluff.

In one incidence the SPS gave plaintiffs 68,000 emails received over an extended period of time as the administrative record on which a decision was based. (This might have been school closures ... note among the emails was a "Help wanted for Waitresses and Bar-tenders in Liverpool England".

In regard to the math action not a single written page of material through emails or hard copy or even the National Math Advisory Panel's report "Foundations for Success" was used by the board.

McLaren et al. submitted 300+ pages that had been submitted to the board that was not included in the SPS board's decision-making.

This 300+ pages became the supplemental record that the Judge said the Board must include in the Order of Remand decision making.

MGJ refused to do that and the Whimsical Four jumped right on that so incredibly far off the tracks train.

If the "Writ of Mandamus" is successful look for a recall petition for sure for the "Four".

dan dempsey said...

Math and Common Core Standards try this from the SJ Murky News.

dan dempsey said...

A "Writ of Mandamus" update:

Excerpts from letter to

Tom Kuffel
Sr. Deputy Prosecuting Attorney

........ I best believes describes the facts and the law from my clients point of view. With regards to the school board admission that it does not attempt to comply with RCW 28A.645.020 I would refer you to the two documents attached to the Writ application.

I intend to move to consolidate all of the pending actions in the Supreme Court. You might want to think about your clients position with regard to this. My thought is that this matter should get promptly resolved because all of the Board's decisions are subject to direct, and perhaps collateral, attack if the Board continues to ignore its obligations to create a record pursuant to RCW 28A.645.020. See e.g. Mueller v Miller, 82 Wash.App 154 (2005).

Although I have not pursued it so far, I believe the Board' policy of not following RCW 28A.645.020 also exposes the District and the members of the school board to liability pursuant to 42 USC 1983 - 1988.

In any event, I hope you agree with ..... a prompt resolution of these matters as many members of the public believe they are not being heard.

Best Regards,

Scott E. Stafne
===================

So if you are among those who feel you are not being heard ... then toss a few bones "Stafne's Way"

HERE.

There should be street dance proceeds and Walk-a-tons for Justice sending Stafne payment for his phenomenal work.

To all those who have said "Why does not somebody do something other than complain?"

Well here is the Man Scott Stafne doing a lot more but does anyone really care?


If so toss Scott a few bones and start a fund raiser.

I really do not care how many public dollars the MGJ TEAM blows on litigation as I want them removed from having the opportunity to damage the city and its children further. To make that happen more than a handful of folks need to be supportive.

dan dempsey said...

Here is the type of Stuff that Stafne is producing on our behalf.

Response to districts request for additional time to submit the administrative record beyond the time allowed by the Law.

This representative of the work you are buying when you throw Scott a few bones. Now please get rolling on the fund raising, if possible....

..... Unless of course you are just happy as a clam with TEAM MGJ. (not meant to offend any clams or other shellfish).

dan dempsey said...

Kudos to Central Mom......

say this enough:

"But, guess what, the community is an equal partner and better start being treated as such in a demonstrable way."

Then perhaps even the Four For Everything MGJ is For ... may get it.

"the community is an equal partner and better start being treated as such in a demonstrable way"

If the "I can't hear you because I have my fingers in my ears" Directors, still cannot hear you, then perhaps the Washington Supreme Court may be within their decibel range.

Charlie Mas said...

I can't speak for anyone else, but a lot of the time when Dan writes these comments about the Court stuff and the writ of mandabus it makes my eyes go kinda swimmy and starts sounding like the adults in a Charlie Brown cartoon "wah wha wah wha".

So I was really pleased and excited when some part of it suddenly made sense to me.

When a person wants to appeal a School Board decision they must file that appeal within 30 days. And believe me, if you're late then you are totally out of luck.

But after the person files their appeal the School District has an equally hard deadline: 20 days to produce a record of the evidence that the Board considered when making the decision.

Some folks appealed the NTN contract decision. They got their appeal in on time. The School District, however, asked for an extension on their 20-day time limit to produce a record of the evidence and testimony considered by the Board.

This is the American legal system, so the appelants' lawyer gets a chance to argue that the School District shouldn't be allowed the extension. And that's the part that I suddenly understood.

The School District, in their request for the extension explained that they needed time to assemble it. They also said that it would include some things that they cannot be sure that every member of the Board saw.

Each of these statements sparked response from the appelants' lawyer, the insightful Mr. Stafne.

First, he wrote, any record that they assemble after the fact is clearly a false record. I don't know if you've ever seen any of these ex-post facto "decision matrices" that the District staff put together, but they are more creative writing than history. The record is supposed to be collected contemporaneously and raw, not selectively, edited, and from memory.

Second, they have to certify that the record is what the Board used as the basis of their decision, therefore it must not include things that the Board didn't see.

Mr. Stafne argues, and effectively, that by the District's own admission the record will be false or at least non-compliant with the law and therefore the Court should deny the extension since it will be used to manufacture false evidence. The Court cannot be a party to such an exercise and, by granting the extension, it would become so.

I get it.

Dorothy said...

Me too Charlie. I read Stafne's response to the extension request yesterday and immediately wrote a check. And started thinking about how law school might be a lot of fun. It's definitely worth reading.