Tuesday, December 28, 2010

Message for the Board

I have a message for the Board regarding my ethics complaints.

The Board will soon have to make a decision about two ethics complaints that I made about a District employee. This District employee has seats on the boards of two non-profit corporations but did not properly disclose those relationships and, in violation of state law and the District Ethics Policy, participated in the discussion and decision to enter into contracts with those non-profit corporations. The question before the Board will not be one of fact. It is an indisputable fact that the employee has the seats on the non-profit boards. It is an indisputable fact that the employee did not properly disclose those relationships. It is an indisputable fact that the employee did not include them on the annual disclosure and statement of financial interest. It is an indisputable fact that the employee participated in the decision to enter into contracts with these non-profit corporations. In short, there is no question that the employee committed misdemeanors and gross misdemeanors by violating state laws RCW 42.23.030, RCW 42.23.040, and RCW 9A.76.175 and, coincidently, also violated the District Ethics Policy. That's not in question. The question before the Board will be: So What?

So what if the relationships with the non-profits weren't disclosed – the Board knew about them.

So this: the disclosure isn't so the School Board will know about the conflict. The disclosure has to be in the official minutes so the public will be informed about the conflict.

So what if the employee participated in the decisions despite the relationship – it wasn't a REAL conflict because it didn't result in immediate financial gain.

So this: both the law and the District's disclosure statement specifically refer to non-profits, so they are both concerned specifically about non-profits. That indicates that the Board should be concerned about them.

So what about the violations of the law – this is a technical violation on the order of dotting i's and crossing t's; it's not really a big deal.

So this: these technical violations are misdemeanors and gross misdemeanors punishable by jail time. When the State Auditor called out the District for ignorance and non-compliance with laws and policies, the Board paid a lot of lip service to taking this matter seriously. Now is the time for the Board to pay something more than lip service to reining in the scofflaw culture of Seattle Public Schools.

Finally, just So What? In the immortal words of Chick Hearn, no harm, no foul.

So this: according to RCW 42.23.050 any contract made in violation of RCW 42.23.030 or RCW 42.23.040 is void. Not voidable at the District's option, but void. That means that the District's contracts with the Alliance for Education and the Council of Great City Schools are void. So we can't enforce our multi-year grants with the Alliance, and any money the District paid to these entities was not paid out of a legal obligation. That means that any money the District paid to these entities was a gift – a gift made in violation of the State Constitution. The voiding of these contracts puts the District in a legally and financially vulnerable position.

If the Board had approved the CSIPs when they weren't where the CAO said they were, it would have put the District in a vulnerable position. When the Board approved the NTN contract when the terms were materially different from the District staff's representation of them it put the District in a vulnerable position. Likewise, the voiding of these contracts puts the District in a vulnerable position. No one should be allowed to expose the District in this way.

Breaking the law has consequences.

When the Board considers these Ethics Policy violations, they shouldn't ask So What? Instead, they should consider the deep legal and financial liability these crimes create for the District. They should also consider the willful and arrogant presumption that anyone is above the law or any employee above the policy. They should also consider this: if they dismiss these violations of the law and the policy this time, how will they justify holding anyone else accountable in future?

20 comments:

Chris said...

The foul? Easy. And Big: 40,000+ schoolchildren got the MAP test instead of $4.3M worth of real services, like counselors, open libraries, etc.

ParentofThree said...

" The disclosure has to be in the official minutes so the public will be informed about the conflict."

I disagree with your use of the word "conclict" the discloure must be in the minutes because it is the law. This in turn allows the public to be informed and call attention to any conflicts associated with the relationship.

Sarah said...

Charlie,

How much did the district pay for the Council of Great City School report?

Melissa Westbrook said...

I'm with Charlie. Where is the line?

Are laws really laws? Regulations? Policies? Does it depend on who sits on the Board for these to be enforced (and, respected)? What if a Board member did this?

I'd like to believe that whoever the Ethics Officer turns this over to will take an objective look at this. He or she will have to explain why there would be no enforcement if Charlie's reasoning is sound (and I believe it to be so).

Otherwise, it's window dressing and lip service. And you set a bad precedent for any behavior of this nature that comes afterwards.

mirmac1 said...

Sarah,

It appears that Broad paid for some of them (as it paved the way for its Superintendent to remake SPS in Eli's image). That's the makings of another public disclosure request.

But the issue is not so much $$$ and from whence it came. Would it be okay for a relative to get a consulting contract just because Broadie paid? No.

Charlie Mas said...

I'm pretty plugged in, and I didn't learn that the superintendent has a seat on the Board of the Council of Great City Schools until just last week.

What other undisclosed positions does she hold?

cascade said...

The other foul as I have heard from more than one district watcher. A4E running rampant at JSCEE, filling positions and projects with money and people that have Ed Reform top of mind. This unfettered access is not OK. Not with money flowing both ways and greasing the priorities of a Select Few that do NOT represent the majority of voices in this district.

Ethically speaking, President of Board and Superintendent need to get themselves off that organization. Yesterday. Unless the organization wants to return to its nonlobbying roots.

Jan said...

I think I see (though maybe the law does not -- which is important) a distinction between "boards" that the Superintendent and board members sit on in an "ex officio" capacity -- by virtue of the positions they hold, particularly if the decision making ability of the other entity rests entirely with an Executive committee -- and not with the larger membership body. In this case, I think there needs to be disclosure and maybe recusal -- but since ALL superintendents will sit on those boards (by virtue of their office) and it applies to superintendents everywhere whose school districts belong, it seems less poisonous to me than the other instances.

The one (or ones) that really bother me are other boards -- like the Broad Foundation and NWEA, where admission to the board is selective and implies, or imposes a commitment to the goals and objectives of that entity, and that probably (indirectly at least) is remunerative in some capacity -- through contacts, referrals, informal support, job referrals or recommendations for the next position, etc. The MAP contract strikes me as a real problem -- and so do the hirings of all those "Broad" associates, or interns, or whatever they are called -- with their high priced contracts that require (legally or not) that the District retain them after the Broad has stopped paying half their salaries. I do not, for an instant, believe that the loyalties of these people lie primarily (or even partially) with the District and Seattle's citizens. They were placed here with Broad influence and support, are paid (at least partially) by Broad at first, and their future career success lies far more in pleasing the Broad Foundation than it does our School Board (to the extent those two entities do not already share the same agenda) or our children, teachers, and parents.

We have been, and are continuing to, paying millions and millions in salaries, benefits, and contract payments for conflicted, biased, tainted transactions. AND -- to the extent the bias, etc. is real and not just "perceived" (which is bad enough), we are getting bad advice, services, etc in return for all that money, money that could be at work in classrooms.

This. Is. Driving. Me. NUTS!

MAPsucks said...

Jan, you nailed it. It is astounding to read SPS' "external assessment expert", obsequiously asking whether it's okay to make recommendations in her analysis regarding assessments, while at the same time inquiring about her Broad evaluation with the Superintendent, who had by then accepted the NWEA Board seat two months earlier. GAG!

Charlie Mas said...

Jan, I am sensitive to your question. The Alliance for Education reserves a seat on their board for the superintendent of Seattle Pubilc Schools, not specifically for Maria Goodloe-Johnson. Same for CGCS.

It is, to me, a distinction without a difference. When she flew to the semi-annual meeting of the CGCS board, it's not as if the airplane ticket was made out to "Superintendent of Seattle Public Schools" and, upon checking in at the airoport she showed them ID that had "Superintendnet of Seattle Public Schools" on it. I'm pretty sure that both the airline ticket and the ID said "Maria Goodloe-Johnson". Regardless of the the organization's intent, she is the person who sits on their board.

It's no less true for the other boards on which she sits. Would she be on the NWEA board if she were not the Superintendent of Seattle Public Schools? Would she be on the Broad board if she did not hold that office? Would she even be on the board for United Way of King County if she were not the superintendent of Seattle Public Schools? If she were just a private citizen new in town? Of course not.

So to say that it somehow isn't HER on these boards but HER in the role of SPS Superintendent - as if it were not her personally, but her as a trustee or custodian - is a pretty specious distinction. I don't see anything from the organizations that indicates that her appointment is for any split personality of hers, but simply for her.

Either way, the law makes no such distinction. There is no legal excecption for "ex officio" appointments.

Charlie Mas said...

This has been a useful exercise for me. I'm honing my message so that I can deliver it effectively in three minutes. Oh, how I wish the staff were similarly constrained. They would see what a ridiculous limit it is.

The question for the Board to answer is not whether the law or the policy were violated. It is beyond dispute; they were. The question for the Board to answer is "So What?"

In building the answer to that question, I want to start with the State Audit and the auditor's remark on the general ignorance and disinterest in the law or policy that was endemic in the District's culture.

The auditor wrote: "The Board and District management are not as familiar with state and federal law on school district operations and on the use of grant funds as the public would expect. As a result, the District exposes itself to greater risk of loss of federal funds and increases the risk for non-compliance with laws and regulations."

The Board responded with a resolution that paid lip service to the idea of greater oversight. They claimed that "the School Board and the Superintendent are committed to rectifying the concerns raised by the audits and will seek to implement the necessary measures to become a stronger district with better systems and business processes and a higher level of oversight".

Now comes the time to pay something more than lip service to this commitment. If the Board brushes this off, they will be proving their lack of resolve. They will make a lie of their high-minded claims of concern.

Worse, by making light of these violations of law and policy, the Board will signal their indulgence of exactly the scofflaw culture that the auditor described.

If the Board falters in their response to this incident, they will be unable to justly take stronger action with future violations. Moreover, they will rob the superintendent's office of the moral authority to take stronger action in future cases.

A timid response to these violations would grant license to the staff, now and in the future, to violate laws and policies at will.

Aside from principles, what of the pragmatic claim that no harm was done?

Perhaps your ignorance of RCW Title 42 chapter 23 also extends to section 050. That law mandates that any contract made in violation of the Conflict of Interest rules is void. Not voidable at the District's option but void. That means that we no longer have any agreements with those agencies. We cannot rely on their payments to us. It also means that any money paid to the outside agencies in the context of these contracts was not an obligation of the District but a gift. Gifts by school districts to private entities is a violation of the Washington State Constitution.

These violations of law and policy have put the District in grave legal and financial risk. They have created a vulnerability that anyone - anyone - could choose to exploit. We're treading water in a shark tank and your employee has cut us, putting blood in the water. Where is the pragmatist to say that it doesn't matter because the cut itself isn't much harm?

Jan said...

Charlie: I agree with all your points, I think. The law does not make this distinction -- and for good reason. Here is how I think it matters in conversations with Board members and the public:

1. IF MGJ sits on a board in an "ex officio" capacity, it is reasonable to think that, for the most part, those positions are known to, and acceptable to, Board members -- as a general proposition (NOT with respect to specific items of deliberation, disclosure, etc. -- more on that below). It doesn't mean it shouldn't be generally disclosed to the public (it should) or the Board (if they are NOT aware of EACH of these positions, they should be!). But she gets those positions the day she signs her contract, and loses them the day she resigns, so they seem less tainted to me -- less a matter of "you are on this board because you agree with us and support our cause" or "you will not remain on this board if you disagree with our positions." None of those things is true. I am not making a legal distinction, really, but an ethical and perceptual one.

In terms of disclosure -- it is irrelevant. She has a duty, I think (and if not, there should be a Board policy creating one) to disclose, at the outset of ANY District business involving ANY board she sits on) to "disclose" (or redisclose) her relevant board position(s), and to recuse herself from any deliberations on, or any voting on, any issue that involves those entities. (By the way, I am assuming that all of her ex officio positions are "voting" positions, but perhaps one or more is not.)

As for the NWEA Board, and the Broad board -- yes, I think she WOULD hold those positions regardless of her job here (maybe not if she gets out of the ed business altogether, but that is a different situation). She holds those positions by reason of a combination of her perceived talents, experience, contacts, and the alignment of her philosophy with that organization's strategic business goals. If she wakes up one morning and announces to the world that ed reform is a waste of time and talent, that repeated high stakes testing through MAP is injurious to children and leads to bad educational practice, etc., etc., (none of which is inherently incompatible with being our superintendent -- we wish she WOULD do that!), her welcome as a "member" of the ed reform community (from whom board members are selected) would dry up pretty darn fast. How many socialists sit on the boards of Fortune 500 companies? Not many! They don't advance traditional corporate agendas (maximizing shareholder value)! She is on these boards because she DOES advance and support their agendas. They, in turn, support her (at least indirectly -- prestige from sitting on the board, contacts, influence, etc.) -- and I suspect they believe she will, because she believes in their cause, naturally manage and direct the SSD in a manner that is sympathetic to their goals and objectives. This is why, before she raises her voice in support of a contract, the Board and the public need to know whose Boards she sits on -- where ELSE she has competing loyalties.
Cont'd

Jan said...

The disclosure of the conflict, and the record of the recusal from deliberation or voting, has to be in the minutes, so the Board can prove compliance -- but practically speaking, this stuff needs to be disclosed at the RFP stage -- so the Board can decide whose proposals it wants to entertain, etc.
One of the worst aspects of MAP testing was -- the Board was told it was the ONLY product out there (and at a time when they were unaward of her Board status). We never even got a SHOT at evaluating or comparing other possible tests. (I am not a testing fan, so none would have pleased me, but might one have been less awful?) None of all that rah rah testimony by staff was presented or evaluated in light of the fact that their boss, the Superintendent, might have predisposed to like and promote that company and its products, as she sat on its Board.

So, I am not really trying to let her off the hook, legally or otherwise, for the ex officio positions that were not disclosed and properly dealt with -- but I think we need to be prepared to recognize, in the debate, the distinctions between boards that ask you to join them ONLY because you are the Superintendent -- where they presumably want you there precisely to advocate the SSD's positions and interests to THEIR organization -- and the others (like NWEA and Broad), where her position as a board member is more likely to be associated with her advocacy for, and marketing of, those organizations and their values.

MAPsucks said...

Jan,

That's very logical. I beg to differ on the NWEA Board, however. She was offered a seat on their Board coincident with a visit of their top execs to Seattle with her, Santorno and Bernatek to discuss SPS assessment needs in Jan 2008. Ya think they woulda floated that if there weren't dollars signs in their eyes? Shoot, the first meeting she attended as a Board member was held at JSCEE. They had a beachhead.

I understand this was their modus operandi, get in through the back door. The only contract they actually competed for, in Delaware, they LOST.

MAPsucks said...

Oops, my bad...the SECOND meeting I mean, in Sept 2008.

Charlie Mas said...

I honestly agree that the harm done by the conflicts of interest is small if viewed in that narrow context. But the conflicts did not occur within a narrow context.

They need to be seen in the context of a couple other facts.

1) The auditor scolded the Board and the district management this year for their disregard for laws and policies and the scofflaw culture of the District saying that these violations put the District at risk. The Board responded by paying lip service to improvement with a resolution full of high-minded ideals. To brush off these violations would prove the lack of resolve in the Board's resolution, would prove the lie of the "everyone accountable" slogan, would endorse the scofflaw culture, and would preclude the board or the superintedent from ever imposing a real penalty on anyone else. A weak response from the Board would throttle their nascent efforts at governance in the cradle.

2) Per RCW 42.23.050, the contracts with the Alliance for Education and the Council of Great City Schools are void. That means that the Alliance has no legal obligation to continue their promised support and that any payments that the District made to these entities were not legal obligations either. If they weren't legal obligations they are gifts, and it is a violation of the Washington State Constitution for school districts to make gifts to private corporations. These violations expose the District to some serious risks. So while the conflicts themselves are small wounds, the District is treading water in a shark tank and these little cuts have put blood in the water. Whether the vulnerability is exploited or not, the District cannot tolerate employees creating this kind of exposure.

MAPsucks said...

Charlie, don't forget the $309K+ contract with NWEA in 2009, and the $$$ contract for the NWEA pilot in 2008.

Charlie Mas said...

MAPsucks, did you make an ethics complaint about the conflict of interest around the NWEA contract?

Didn't the Board has already decide that the superintendent disclosed her position on the NWEA board before the MAP contract was approved? Whether that is actually true or not, I thought that's what they decided to believe.

MAPsucks said...

If the Board somehow knew, then SPS counsel and Brad Bernatek wouldn't have felt obligated to prepare this:

CYA memo

The timeline runs something like this:

1/08 NWEA invites MGJ to the Board

4/08 REA needs to hurry up with a MAP Pilot

6/08 MGJ attends first NWEA Board meeting

9/08 MGJ attends second meeting and a press release announces her official election to the Board. Like most SPS media releases, nobody notices.

6/09 First MAP contract is voted on by Board

11/09 MGJ's position on NWEA Board becomes common knowledge to Board and public. CYA memo is prepared.

1/10 MGJ "discloses" her seat on Board.

6/10 Board votes on MAP "renewal" (that really isn't a renewal).

MAPsucks said...

No, I did not. What's the point?

Did the Board decide that? Sure, if they're on 'shrooms.

A summary timeline:

1/08 MGJ invited to join NWEA Board coincident w/ MGJ, Santorno and Bernatak meeting with NWEA execs to discuss SPS assessment needs.

4/08 Bernatek urgently needs to get a MAP pilot moving. MGJ tells him she got invited on the board (what a surprise!)

6/08 MGJ attends first NWEA Board meeting.

9/08 MAP pilot started. MGJ "officially" voted onto NWEA Board. Press release issued but largely ignored (like most)

6/09 Board approves MAP contract for $300K+.

9/09 Before NWEA contract finalized, SPS feels compelled to prepare CYA memo:

CYA memo

11/09 MGJ's position on NWEA Board becomes common knowledge.

1/10 MGJ feels compelled to reveal NWEA board status.

7/10 Board approves second NWEA contract (with MGJ "recused" of course!).