Call to Order and Roll Call
The meeting of the Education Assessment and Accountability Review Subcommittee (EAARS) was held on Tuesday, June 21, 2016, at 10:00 AM, in Room 129 of the Capitol Annex. Representative James Kay, Co-Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Mike Wilson, Co-Chair; Representative James Kay, Co-Chair; Representative Linda Belcher
Legislative Guest: Representative Derrick Graham
Guests: David Wickersham, Deputy Director, Office of Education Accountability; Karen Timmell-Hatzell, Education Accountability Division Director of Investigations, Office of Education Accountability; Clyde Caudill, KASA; Wayne Young, KASA, Erin Klarer, KHEAA.
LRC Staff: Jo Carole Ellis, Joshua Collins, and Chris White.
Representative Kay stated that a quorum was not present at the meeting and that the December 1, 2015 minutes of the EAARS meeting could not be approved until the next EAARS meeting, to be held August 16th, 2016.
Representative Kay recognized the respective chairmen of the Senate and House Education Committees, Senator Mike Wilson and Representative Derrick Graham.
Representative Kay introduced David Wickersham, Deputy Director of the Office of Education Accountability (OEA), and Karen Timmell-Hatzell, OEA Division Director of Investigations. Mr. Wickersham introduced members of his staff: Rosemary Oaken, Tammy Daniel, Angie Jones, Sabrina Olds, Brenda Landy, Albert Alexander, Yvette Perry, Deborah Nelson, Bryan Jones, Roya Ghazi, Alicia Sneed, Bryan Moore, and Logan Rupard.
Mr. Wickersham discussed the findings of the 2015 OEA Annual Report in detail. The committee was informed by Mr. Wickersham that under KRS 7.410, OEA is required to present an annual report of the status and results of the annual research. OEA is also required to provide a summary of the complete investigative activity and a written report of the findings.
Mr. Wickersham explained that OEA’s outreach program has regular meetings and frequent contact with its educational partners. The outreach program is designed to ensure all inquiries receive consistent answers as provided through OEA and its educational partners. OEA conducts monthly meetings with Kentucky Department of Education (KDE) and maintains frequent contact with the Kentucky School Board Association (KSBA), Kentucky Association of School Superintendents (KASS), Kentucky Association of School Administrators (KASA) and the Educational Professional Standards Board (EPSB). The purposes of these meetings are to give an opportunity to identify common concerns and ensure those concerns are interpreted according to the laws and regulations required to be followed in local districts and provide an avenue for open feedback from a customer service standpoint that allows an opinion to be given on both the performance of the OEA employees and in an effort to ensure that all educational partners are on the same radar.
Mr. Wickersham gave an overview of OEA’s investigative duties. Under KRS 7:410, the OEA has the duty to investigate allegations involving the wrongdoing of any person or agency in violation of the Kentucky Education Reform Act (KERA). OEA is obligated by statute to make referrals to any agency that has the authority to take enforcement action, upon determining a violation has occurred. After gathering relevant information but prior to conclusions, OEA will provide information to the districts regarding the allegations. The districts then have an opportunity to provide a written response.
Mr. Wickersham said that any state agency with knowledge of a violation of KERA also has an obligation to make a referral to OEA for investigation. OEA is the state clearinghouse for any complaint. An investigation is conducted and OEA then refers back to those agencies for action upon the conclusion of the investigation.
Mr. Wickersham said that KRS 160.345 provides anyone who has been, or believes they have been, adversely affected by a school-based decision making (SBDM) matter the opportunity to file a written complaint. OEA is obligated to investigate all complaints and is required to either resolve that issue or to forward that matter on to the Kentucky Board of Education (KBE) for action.
In 2013, OEA opened a 80 new investigations and closed 77. In 2014, OEA opened 66 investigations and closed 63. OEA received 612 written complaints in 2015 that required formal action. This does not include phone calls, emails, or hotline messages. From the written complaints, OEA opened 49 cases, which is approximately 8 percent of the total complaints that were received. Three hundred ninety-three of the 612 written complaints were anonymous complaints. In 2015, there were 49 new cases opened and 59 closed. In 48 of the closed cases, OEA identified 80 violations of law. Mr. Wickersham said that it is important to remember that an initial complaint may raise other issues during the investigation that lead to additional issues which are substantiated. In 11 of these closed cases, there were no findings of any violations whatsoever.
Mr. Wickersham stated that another concern frequently expressed to the investigators is the possibility of retaliation or negative repercussions to an individual who has filed the report should their identity become known or confirmed. Although OEA’s intention is to shield the identity of the complainant, it is not possible to guarantee confidentiality. Under no circumstance does OEA staff release or verify the source of the complaint, because anonymous information and protection against disclosure of a complainant’s history are worthwhile and necessary practices. OEA makes every effort to shield the identity of the complainants. Mr. Wickersham stated that the effort to shield identities encourages others to continue to come forward and raise complaints consistent with statutory obligations.
Mr. Wickersham offered that one of his greatest satisfactions is that OEA can investigate and demonstrate to the district that the law has been followed. Mr. Wickersham stressed it is important to remember that a complaint does not automatically mean that there has been a violation of the law.
Mr. Wickersham explained that upon receipt of a complaint, OEA will review past files to determine if previously received complaints about similar issues have occurred under that same district leadership. If a similar issues has been addressed, it may suggest that there is a repetitive behavior in a particular area. Before taking action to begin an investigation, OEA must consider the specificity of the information received, the seriousness of the allegation, issues of proof, possible outcomes, and availability of witnesses.
Mr. Wickersham testified that OEA declines and refers over 90 percent of the matters that come before them, including written complaints. These complaints are not ignored; however, they are steered to more appropriate resources that have both statutory and regulatory authority to act or investigate and reach a determination
Mr. Wickersham said that testing violation or special education matters are referred to KDE. OEA notifies the Kentucky Human Rights Commission or federal authorities regarding discrimination since they are empowered to act upon those matters. OEA refers criminal activity to the appropriate police or investigative agencies, fiscal matters to the Auditor of Public Accounts, and open meetings and open records matters that OEA is unable to resolve on their own to the Office of the Attorney General.
Mr. Wickersham explained that OEA will frequently refer a matter back to a district for resolution, often for a disgruntled parent or a disgruntled employee. There are procedures in place inside a district that perhaps the district has not yet had an opportunity to address itself. Often, a person that contacted OEA lacks awareness about what those processes and procedures are, so the district will have an opportunity to address that locally.
Mr. Wickersham stated that OEA avoids matters that are either already in litigation or most likely headed for litigation. The agency also declines to get involved if other formal proceedings are pending.
Mr. Wickersham said that cases are divided into investigative cases or SBDM cases. Preferably, OEA provides a 3-day notice to districts prior to making a scheduled visit for an investigation. OEA informs the district of the witnesses the agency would like to interview while also not giving too much information regarding the specifics of the complaint. This practice reflects OEA’s good faith effort to keep the district informed. OEA conducts interviews in the districts; but do not interview children or students. After fact finding is completed, there might possibly be an extensive follow-up period – this is due to the significant time it takes to complete these cases.
Mr. Wickersham said the vast majority of resolutions result in a recommendation for additional training. On the other hand, if any violation of a regulation, statute, or local board policy is confirmed, the assumption is that these are much more likely to be mistakes rather than an act of willfulness conduct or a crime. Simple errors in judgement are often committed without any ill will, thought, or intent to violate the law, statute, or policy. For that reason, OEA’s recommendations and resolutions made with districts are very much structured to be rehabilitative and not punitive. OEA partners with EPSB, KSBA, and KDE to provide training to allow the district to get back on track in terms of performance of their day-to-day work. Mr. Wickersham said that it is an extremely rare case in which OEA finds that someone has willfully violated the law, which warrants further action by law enforcement, the Auditor of Public Accounts, or the KBE. Most referrals that are made for action of that type are only in the cases of egregious conduct at the district level that is typically either repeated over a short period of time or has been a consistent problem in that district over a period of months or years.
Mr. Wickersham made a distinction between preliminary and final reports of agency issues. OEA’s statutory obligation is to provide an opportunity for districts to respond before taking final action. Mr. Wickersham said that occasionally, there is some speculation raised that there has been some violation of due process in the performance in OEA’s role. Mr. Wickersham explained that due process is based on notice of what the wrongdoing is believed to be and an opportunity to respond. Mr. Wickersham offered that the right to due process isn’t greatly impacted by OEA’s actions, because there is neither a deprivation of life, liberty, or property interest. Still the protections that the General Assembly has written into KRS 7.420 provide the notice and opportunity to respond that due process would require.
Mr. Wickersham said that a preliminary report is sent to the district with an opportunity to provide some response. A two-week window is given for the district’s response, unless additional time is requested. Districts pay close attention and give consideration to each one of the responses, thus OEA allows additional time to gather information.
Mr. Wickersham emphasized that it is critically important that OEA continues to press on the notion that OEA’s work is rehabilitative. OEA is very much interested in recognizing the hard work performed locally every day and under extremely difficult circumstances. OEA’s role is essentially to get districts back on track. Mr. Wickersham said that there is a significant difference between getting a district back on track and applying a penalty, which would result in taking someone out of the classroom or the district, or keeping someone from being able to continue in their profession. OEA recognizes the dedication of school staff and administrators and attempts to build upon helping them improve on their performance at the local level.
Mr. Wickersham testified that many written complaints focus on SBDM councils, which have been in place for over 20 years. Most schools have SBDM councils in place. At most schools, the SBDM council consists of the principal, three teachers and two parents of children who attend the school. Frequently, complaints regard the election of parent/teacher representatives. Parent representatives are elected either by the Parent-Teacher Organization (PTO) or by the largest group that has been selected for the purpose of conducting that election. Teachers are elected by the majority of the teachers. The statute provides limited guidance on who conducts the teacher elections, although there are fairly clear guidance regarding parent elections. Complaints received typically allege interference with one of those processes and the resolution involves guidance. OEA must determine whether guidance is appropriate or if there is a need for a reminder about what is in the statute.
Mr. Wickersham added that OEA also get complaints that SBDM councils have violated open meetings or open records laws – such as insufficient notice of meetings or meetings being held at an inconvenient times for parents or attendees. These complaints can also implicate closed session meetings, which are permitted as long as the appropriate procedures are followed. Another frequent complaint deals with SBDM councils that have failed to keep minutes or keep minutes that are inaccurate.
Mr. Wickersham conveyed that some complaints regard SBDM budgets - allegations that SBDM councils are not approving budgets or they are not properly recording that approval through the minutes of the actions of the body. Occasionally, there are complaints that there is an inappropriate policy or an absence of a policy that the SBDM is required to make. SBDM councils must make policies on curriculum, spending, the use of school space, discipline, extra-curricular activities, alignment with the standards, and the consultative role regarding hiring. The complaints typically state that there are no policies or that there is no fidelity to the policies that are in place. Mr. Wickersham said that the principal is to consult with SBDM councils on vacancies, and occasionally OEA will get a complaint that this type of consultation does not occur.
Mr. Wickersham said that there are concerns regarding local Boards of Education – mostly regarding allegations of hiring interference. KRS 161.80 provides clear instructions that Board of Education members may not influence or attempt to influence the hiring of any school employee with exceptions for superintendents, board treasurers, and board attorneys. It is possible for OEA to make referrals on an allegation of that type, if substantiated, to the OAG for action. Other complaints regard eligibility of a member to serve on a local Board of Education either through the holding of an incompatible office or residency. KRS 161:80 indicates that a member must live and vote in the district they serve. Occasionally OEA receives allegations that a member maintains more than one home, using one address for the purpose of attempting to serve as a board member for a particular district, when the member actually resides in another district. OEA also receives complaints regarding both direct and indirect financial conflicts, which are prohibited by KRS 161:80. If substantiated, OEA will make a referral to the OAG’s office.
Mr. Wickersham state that less common are complaints concerning surplus property. This is a very difficult issue in a local district for a couple of reasons. In rural communities, there are school buildings that were once used but are now abandoned. Although many times the community has strong feelings about the structures, the schools no longer serve an educational purpose which are beneficial to the district’s current needs. The obligation of the board in that situation is to declare the structure as surplus property, and then dispose of it. Due to the expense of maintenance and insurance, OEA encourages the district to take action through surplus property. Even though it may be difficult from a political perspective, it is believed those monies can better be spent on the modern incarnation of the schools in the district.
Mr. Wickersham state that some complaints allege that boards are failing to properly exercise financial oversight, do not review and approve expenditures, and do not have adequate documentation regarding travel expenditures.
Mr. Wickersham highlighted outside activity funds as slight concern – often involving Booster Clubs. The KDE partners with OEA on the implementation and training of accounting procedures known as “the Redbook”. KDE provides assistance to insure that the training and guidance provided is responsive to issues that are commonly seen in districts.
Mr. Wickersham listed other miscellaneous complaints that arise less frequently: incompatible/dual offices held by board members, nepotism, boundary disputes involving the resident of students, certification of teachers, or teachers working in a district may not be properly certified.
Mr. Wickersham gave an overview of the OEA research division functions governed by the research agenda approved by EAARS. OEA has three pending studies that will be presented later in the year.
Projects completed and presented over this last year are:
1. The District Data Profiles for 2014
Mr. Wickersham explained that contains longitudinal data on each one of the districts that includes demographics, finance, staffing, and school performance. The report covered the years 2011-2014. The information relayed is extremely useful for legislators, general public, local school board members, and parents. While KDE’s School Report Card is a fantastic document and an appropriate alternative for school districts that have neither the time or the inclination to take a “deep dive” into that sort of information, this report gives more of an overview that captures a great deal of information in a very concise format. This report is provided every year and is available to everyone.
2. The Bi-Annual Compendium
Mr. Wickersham indicated that this report compares Kentucky’s public education system to indicators both national and selected peer states data. Mr. Wickersham advised that because the report uses the rankings is difficult to determine how far apart Kentucky is from some of the other states.
Peer states for this comparison were Alabama, Arkansas, Delaware, Florida, Georgia, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia and West Virginia. Excluded from the compendium were neighboring or contiguous states of Illinois, Indiana, Missouri and Ohio.
Regarding demographics based on 2013 figures, Kentucky was 12th highest nationally in student poverty. Median family income in Kentucky was among the lowest. Kentucky had a lower percentage of minorities in the student population than the national average.
In terms of student services, Kentucky had a significantly lower figure of about 3 percent of students learning the English language compared to a national figure of approximately 9 percent.
Kentucky has approximately 50 percent of the school population on some form of lunch subsidy. Kentucky also has about 14.2 percent of students with disabilities, which is higher than the nation average of 12.9 percent.
The student-teacher ratio is approximately 16:1, which is very close to the national average. Kentucky has more total staff than the average, principally appearing to be made up of aides for student with disabilities and more administrative staff. The administrative staff is made up of more assistant principals than is common, but also Kentucky has more Family Resource and Services Directors. Mr. Wickersham said that other states do not necessarily have these positions. Therefore, caution must be used when discussing whether Kentucky has too many administrators or “top-heavy” positions.
As of 2012, Kentucky was 34th in per pupil revenue, and 33rd in per pupil spending. In 2013, the average teacher salary was 26th in the nation.
On the National Assessment of Educational Progress, Kentucky ranked 17th in grade 4 reading, 15th in grade 8 reading, 28th in grade 4 math, and 36th in grade 8 math.
In terms of advanced placement exams, Kentucky ranks 20th in nation in participation and 25th in passing scores. Regarding 2013 graduation rates, Kentucky is ahead of the national average of 81 percent. Kentucky ranks 10th nationally with 86 percent of students graduating.
3. Recess and Physical Education Report
OEA analyzed both the amounts and types of physical activity for the years 2014 in grades K-5, and described the views of educators in terms of physical activity. OEA also looked at federal and state requirements and analyzed the effect that the different laws and regulations have on this study.
Kentucky is 7th in childhood obesity for children between the ages of 10 and 17. Kentucky does not have specific requirements in place for a set amount or type of physical education or recess. There are some general recommendations and governing law regarding physical activity. There is a requirement that wellness policies be developed locally, and that reports be provided which assess what the physical activity environment is in a school and district. There must also be an adoption of tools that measure on an annual basis what physical activity is like. There is no direct state funding to support that requirement. KDE has used grant funding to attempt to provide guidance and assistance to districts.
Mr. Wickersham stated that one of the difficulties encountered in the study was that the data for physical activity is not reported in a consistent way that allows the aggregation of statewide figures, so a great deal of this information is district by district. The research staff was able to determine that nearly all K-5 schools provide recess. Two two-thirds of the schools provided 20 minutes or more every day. It is also the case that most school’s used classroom-based physical activity in addition to the allotted recess time. Educators tend to agree that Kentucky has the right amount of physical activity, given the curricular demands that are placed upon the schools. One of the tensions that educators identified was the recognition that a healthier child is probably more likely to learn well and function effectively in a classroom, but due to the limited number of hours in the day, minutes that are spent exclusively on physical activity compete against the academic demands that are placed on those students, schools and districts.
OEA made eight recommendations regarding physical activity to KDE and the General Assembly. In response to the report, KDE has executed significant activity to address some of these concerns. KDE continues to have a good partnership with OEA in carefully reviewing the recommendations and making legitimate and active responses.
4. The Primer on Independent Schools and Districts Report
This report reviews statutes that are relevant to independent school districts and includes the history of independent school districts and legislative changes over time.
Kentucky has a total of 53 independent schools and districts that are defined by boundaries that are set inside counties. These boundaries are essentially locked at this point as a consequence to a law introduced in 1934. Generally speaking independent schools and districts have fewer students in fewer schools. They are permitted under KRS 160 to annex territory and also to merge with county districts. Independent schools have a greater percentage of non-resident students than county schools. There are a total of approximately 27,000 non-residents students in Kentucky in 2014. About 5 percent of the revenue in independent school districts is from non-resident students. Support Education Excellence in Kentucky (SEEK) monies follow these non-resident students to the schools they are attending in these situations.
Kentucky has five independent school districts that do not have a high school, nor is there a statutory guidance on what high school those children must or may attend. Independent school districts spend a bit more money – approximately $600 per student – than county schools spend. They typically have less taxable property, largely based on geographical boundaries, but the property is taxed at a higher rate. In terms of student demographics and student performance, there are very few distinctions between independent and county districts. There is no real variation in special education, limited English proficiency, and migrate student counts between county and independents school districts.
Independent school districts are disproportionately both the highest and the lowest performing schools. Based on 2014 figures, achievement is a bit lower in the elementary and middle school levels than in the county school districts, but achievement is somewhat higher at the high-school level. However, that figure is likely to be skewed by the fact that there are a few exceptionally high performing independent school districts at the high school level.
Responding to a question by Senator Wilson, Mr. Wickersham stated he is unaware of any state agency that has not adhered to KERA regulations by attempting to exercise more authority than actually possessed to investigate a reported violation, rather than referring them to OEA. Mr. Wickersham indicated the aggressive “outreach approach” with educational agencies ensures all agencies are cognizant of both OEA’s investigative and research functions. There appears to be no hesitation from a district or state level in referring those cases to OEA. Mr. Wickersham attributes the success of the outreach program to the professionalism of the people in the agencies with whom they work closely and the willingness to keep the discussion open. The agencies do not want to have their work diminished by someone who is stepping outside of their scope.
In response to a question by Senator Wilson, Mr. Wickersham said he will provide further evaluation regarding the number of students allowed to attend independent schools, since the county district boundaries can change but the city boundaries are locked in by law. Senator Wilson asked if any district has solved this through merger or other means. Mr. Wickersham said there have been three mergers that have occurred over the last several years, but not specifically on the facts of which Senator Wilson spoke.
Representative Graham discussed school deficits caused by the eroding tax base caused by the construction of new buildings. These buildings displace residents who provided taxes to the school districts. Mr. Wickersham agreed the topic should be studied to address the impact of lost revenue affecting these schools. Since many districts have limited ability to merge, Mr. Wickersham offered to conduct a study to determine what can be done to aid the districts who are losing tax dollars yearly, thereby impacting their district’s budgets. Mr. Wickersham will provide members of the General Assembly with data for members who have similar situations in their districts.
Representative Graham said that board members may not always follow open meeting and open records law. Representative Graham suggested that all board members should be fully trained and informed if they are to be held accountable.
Referring to a scenario discussed regarding a principal being involved with elections of parents and teacher in the SBDM council, Representative Graham expressed concern. Ms. Timmell reported that although some allegations have been substantiated, the violation has generally occurred in schools that do not have an active PTO/PTA. Since the school may not be aware of the steps to be taken, the school will proceed with managing the elections. In response to Representative Graham’s question regarding how elections should be conducted if there is no active PTO/PTA, Ms. Timmell advised the burden falls upon the principal to create a group of parents and direct the focus to that group to elect the representatives for the council. Representative Graham expressed concern that the principal may be able to manipulate the outcome of the process by choosing parents that would benefit his agenda. Ms. Timmell explained that the parents are not elected representatives; therefore, the principal has followed the statute by appointing parents to supervise the election. That group would then disseminate the information to the other parents.
Representative Belcher questioned whether training is monitored after a violation occurs, or if the investigation ceases without further follow-up. Mr. Wickersham advised that proof of training by a specific date is required as part of the resolution, which is monitored internally. There is continued contact with the district if the deadline is nearing or missed. The district can request additional time if needed as this demonstrates a willingness to address the issue. There is, however, a set period of time in which corrective action must be taken, whether it is training, revision of policy, or institution of minutes. If a district refuses to administer the training to an acceptable level, the matter will be referred to the KDE.
In response to Representative Belcher’s inquiry as to whether OEA has the authority to investigate home schools that are not effective, Mr. Wickersham replied that OEA has no control over home schools since these are not public schools.
Representative Belcher then questioned OEA’s role in tribunals, and whether they conduct an investigation if the teacher has done something inappropriate. Ms. Timmell stated that OEA has no role in a local tribunal or in a tribunal conducted by the state board or by KDE. She added that it depends on when the complaint is received and on what level the complaint stands at the time. OEA has conducted investigations which ultimately went to a tribunal, but if there is a tribunal pending, OEA would not get involved. In response to Representative Belcher’s question as to whether it is referred to a tribunal once OEA has conducted an investigation, Director Timmell reported that the final report is sent to the person being investigating unless a referral to another agency is made. However, there is a policy in place whereby a copy of the investigation can be acquired by making an open records request. Although OEA is not subject to open records statutes and the information is not automatically released, the information can and will be provided if requested.
In response to a question by Representative, Mr. Wickersham confirmed Kentucky has the 12th highest student poverty rate among all states. Representative Kay relayed the importance of emphasizing to the committee the information regarding our ranking, and added that student poverty brings inherent challenges which students without poverty do not experience. Representative Kay also reminded the committee of the successes in the rankings, which provide testament to school districts, administrators, and teachers who help students in poverty. Representative Kay thanked all Kentucky teachers for what they do on a daily basis.
Representative Kay expressed appreciation to Senator Wilson, Representative Graham, and OEA for the resources and assets provided to the educational community.
Representative Kay suggested that one of the goals of the subcommittee should be to raise the level of awareness in the General Assembly regarding information, studies, and data that OEA distributes. Studies performed by OEA in the past and studies that are currently being done provide useful tools for legislators and educational partners. Representative Kay added he would like to raise awareness and make the public and legislators aware that the information provided in these reports is readily accessible and can be used for the good of education in Kentucky.
There being no further business, Senator Wilson moved to adjourn, and the meeting was adjourned at 11:10 a.m.