Education Assessment and Accountability Review Subcommittee




<MeetMDY1> June 20, 2017

Call to Order and Roll Call

The<MeetNo2> meeting of the Education Assessment and Accountability Review Subcommittee (EAARS) was held on<Day> Tuesday,<MeetMDY2> June 20, 2017, at<MeetTime> 1:00 PM, in<Room> Room 129 of the Capitol Annex. Senator Mike Wilson, Co-Chair, called the meeting to order, and the secretary called the roll.


Present were:

Members:<Members> Senator Mike Wilson, Co-Chair; Representative Daniel Elliott, Co-Chair; Senators Alice Forgy Kerr and Max Wise; Representative Derrick Graham


Guests: Lisa Moore, KDE/OET; Eric Kennedy, KSBA.


LRC Staff: Joshua Collins, Yvette Perry, Janet Stephens, and Chris White.


Election of Co-Chair

Co-Chair Elliott chaired for the purpose electing the Senate co-chair. Senator Kerr nominated Senator Wilson as the Senate co-chair and Senator Wise seconded the nomination. On a motion by Senator Kerr and seconded by Senator Wise, nominations ceased and Senator Wilson was elected Senate co-chair.


Due to lack of members, the House co-chair will be elected at the next EAARS meeting in August.


Approval of the minutes

On a motion by Senator Kerr and a second by Senator Wise, minutes of the February 14, 2017, were approved and adopted by voice vote.


Presentation: Office of Education Accountability 2016 Annual Report

Senator Wilson introduced David Wickersham, Deputy Director of the Office of Education Accountability (OEA), who introduced Karen Timmell, OEA’s Investigations Division Manager, and Bart Liguori, OEA’s Research Division Manager, as well as the OEA administrative staff, Tammy Daniel and Angie Jones. Ms. Timmel introduced OEA’s investigative staff: Bryan Jones, Shuo Han, and Brad Nelson. Mr. Liguori introduced OEA’s research staff: Albert Alexander, Sabrina Olds, Deborah Nelson, Logan Rupard, Chris Riley and Graduate Fellow Student Chris Joffrion.


Mr. Wickersham discussed the findings of the 2016 OEA Annual Report in detail. 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 said OEA’s active outreach program includes 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), as well as individuals from schools and districts. The meetings give OEA’s partners the opportunity to identify common concerns and ensure those concerns are interpreted according to the laws and regulations in local districts. OEA provides an avenue for open feedback from a customer service standpoint that allows an opinion to be given on the performance of the OEA employees and that ensures all educational partners are on the same radar.


Mr. Wickersham gave an overview of the OEA’s investigative duties. Under KRS 7:410, the OEA has a duty to investigate allegations involving waste, fraud, mismanagement, abuse, and any wrongdoing of any person or agency in violation of the Kentucky Education Reform Act (KERA). After gathering relevant information but prior to conclusions, the OEA will provide information to the districts regarding the allegations prior to making the final results public. The districts then have an opportunity to provide a written response. Upon determining a violation has occurred, the OEA is obligated by statute to make referrals to any agency that has the authority to take enforcement action. Mr. Wickersham said anything affecting due process goes to the executive branch.


Any state agency with knowledge of a violation of KERA also has an obligation to make a referral to OEA, which serves as the state clearinghouse for all complaints. An investigation is conducted and OEA refers the matter to the agency for action upon the conclusion of the investigation.


Mr. Wickersham said under 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.


During the last ten years, Mr. Wickersham reported that OEA has initiated and investigated activity in almost 750 matters and closed just shy of 700 cases. Of those cases, OEA had 556 investigative matters and closed 524. OEA opened 193 SBDM specific matters and closed 173 cases.


In 2014, OEA opened 66 investigations and closed 63 cases. OEA opened 49 cases, which is around 8 percent of the total complaints received, with three hundred ninety-three of the 612 written complaints being filed anonymously. In 2015, 49 new cases were opened and 59 closed. In 48 of the closed cases, OEA identified 80 violations of law. In 11 of the closed cases, there were no findings of any violations. In 2016, a significantly higher number of 97 cases were reported, of which 56 were closed. In 41 of those cases, the OEA found 75 violations of the law. Mr. Wickersham said the initial complaint may uncover other violations which are substantiated by documentation or interviews and will be addressed during that time.


Mr. Wickersham said of the 533 written complaints (or 82 percent) the OEA had, were declined or referred and 18 percent of the complaints advanced to investigative activity. Two hundred ninety eight, or six percent, were anonymously submitted. The declined or referred complaints are not ignored but are steered to more appropriate resources that have both statutory and regulatory authority to act or investigate to reach a determination. Testing violations and special education matters are referred to KDE while discrimination issues are referred to the Kentucky Human Rights Commission or federal authorities. Criminal activity is reported to the appropriate police or investigative agencies, fiscal matters to the Auditor of Public Accounts, and open meetings and open records matters that the OEA is unable to resolve are referred to the Office of the Attorney General.


Mr. Wickersham said having 15 cases with no violations is an important part of their work as well. He said one of his greatest satisfactions is that OEA can investigate and demonstrate to the district that the law has been followed, because a complaint does not automatically mean that there has been a violation of the law.

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 said an on-line complaint form is primarily received by email; however, there are rare, occasional complaints delivered by the U.S.P.S.


Mr. Wickersham explained that upon receipt of a complaint, OEA designates the complaint as either a SBDM case or an investigative case. Upon that determination, the OEA provides a three-day notice to districts prior to making a scheduled visit for an investigation. OEA informs the district of any witnesses the agency would like to interview while at the same time not revealing too much information regarding the specifics of the complaint. This practice reflects OEA’s good faith effort to keep the district informed. OEA then interviews those individuals in the districts, with the exception of children or students. After fact finding is completed, there may be an extensive follow-up period due to the significant time the cases take to complete.


During the course of the investigation, reviews of past files will determine if previously received complaints regarding similar issues have occurred under the same district leadership. If similar issues have been previously addressed, the findings may suggest repetitive behavior in a particular area. OEA avoids matters currently in litigation or headed for litigation. The agency also declines to get involved if formal proceedings are pending.


Mr. Wickersham said the vast majority of resolutions result in recommendations for additional training. If violation of a regulation, statute or local board policy is confirmed, they are likely to be mistakes rather than an act of willful conduct or crime, since simple errors in judgement may be committed without any ill will, thought, or intent to violate the law, statute, or policy. For that reason, OEA’s recommendations and resolutions to districts are 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 cases of egregious conduct at the district level that is either repeated over a short period of time or has been a consistent problem in the particular district for months or years.


Mr. Wickersham distinguished between preliminary and final reports regarding the complaints. OEA’s statutory obligation, KRS 7.420, requires a complete and thorough preliminary report be sent to the district involved to provide an opportunity to respond to the determination of the facts, conclusion, and resolution before final action is taken. Mr. Wickersham explained that due process is based on notice of what the wrongdoing is believed to be and an opportunity to respond. He said 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. The protections the General Assembly has written into KRS 7.420 provide the notice and opportunity to respond that due process would require.


The vast majority of resolutions result in a recommendation for additional training. If any violation of a regulation, statute, or local board policy is confirmed, these are 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 emphasized that it is critical to remember that OEA’s work is rehabilitative. OEA recognizes the hard work performed in districts daily and under extremely difficult circumstances. OEA’s role is to get districts back on track. Mr. Wickersham said there is a significant difference between getting a district back on track and applying a penalty. OEA recognizes the dedication of school staff and administrators and attempts to build upon helping them improve their performance at the local level.


SBDM councils have been required in Kentucky schools since the 1990s and were a change in school governance necessitated by the Education Reform Act that gave a voice to both teachers and parents about the way the school is operated. The statute requires that SBDM councils be involved in 11 different aspects of school governance.


At most schools, the SBDM council consists of the principal, three teachers and two parents of children who attend the school. 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. 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 simply a reminder about what the statute entails.


Mr. Wickersham added that OEA also get complaints that SBDM councils have violated open meetings or open records laws pertaining to insufficient meeting notices or meetings held at inconvenient times or places. Complaints also include closed-session meetings although these meetings are permitted as long as the appropriate procedures are followed. Another frequent complaint deals with SBDM councils that fail to keep minutes or minutes that are inaccurate.


Other SBDM allegations are councils who are not approving budgets or not properly recording the approval in the minutes. Occasionally, complaints are reported regarding inappropriate policy or the absence of a policy required by the SBDM councils, such as making policies on curriculum, spending, school space usage, discipline, extra-curricular activities, alignment with standards, and the consultative role regarding hiring. Common complaints are lack of policies or policies which are out of date or lack of consultation with SBDM councils on vacancies.


The most common complaint regarding local Boards of Education are allegations of hiring interference. KRS 161.180 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 hiring interference, if substantiated, to the OAG for action. Typical allegations include a person not having the appropriate education, a conflict of interest with an incompatible office, or not residing in the district they represent. 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 161:180. If substantiated, OEA will make a referral to the AG’s office.


Mr. Wickersham said that less common are complaints concerning surplus property in a local district. School buildings in rural communities have buildings that were once used but are now abandoned. If the schools no longer serve an educational purpose which is beneficial to the district’s current needs, it is the obligation of the board to declare the structure as surplus property and dispose of it following local policy and law. Due to the expense of maintenance and insurance, OEA encourages districts to dispose of surplus property. Although it may be difficult from a political perspective, it is believed those monies can better be spent on modernization of current schools in the district.


Some complaints allege that boards are failing to properly exercise financial oversight by not closely scrutinizing expenditures and providing inadequate documentation for travel expenditures. Another complaint is the board is not reviewing budgets with enough frequency to be good stewards of the public’s money.


Mr. Wickersham highlighted outside activity funds as a 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 training to comply with restrictions of outside activity funds and insures 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 as incompatible/dual offices held by board members, nepotism, boundary disputes involving the residence of students, and certification of teachers. Also reported is an emergency certified person being hired when a certified person was available. OEA occasionally gets allegations regarding alternative certified teaching.


Regarding an overview of the OEA research process, the governing statute requiring that EAARS, on or before December 1st of each year, must adopt an annual research agenda for the following year. OEA’s studies, research and investigations are at the discretion of the EAARS Committee. OEA prepares a suggested list of relevant topics for the committee to consider. The members then determine what OEA will study. Statutes dictate if the General Assembly mandates the study of a particular topic, the research agenda can be modified to incorporate that topic. According to Mr. Wickersham’s knowledge, this has not happened previously but said the biggest difficulty for OEA would be executing such a request in a timely manner because of the time necessary to complete study on an individual topic. Any additions would require some adjustment.


Mr. Wickersham acknowledged OEA staff for a recent award to be recognized at NCSL meeting in August. OEA’s publication on recess and physical education K-5 was given an award based upon it being an innovative study that was both substantive and contemporary in terms of helping informed legislative decision making.


Mr. Wickersham reported on the three studies presented in 2016:


In August, OEA presented Special Education in KY 2016 Study, an update of some earlier studies. Mr. Wickersham condensed the overall findings and recommendations in the reports he will refer to, but provided a link to the study is available on the website.


OEA’s September presentation involved a review of the Safe Schools Program. The Kentucky Center for School Safety (KCSS), also available on the website.


District Data Profiles were completed in September, 2016; however, OEA has now adjusted the presentation and publication schedule to provide the information earlier in the year in an effort to better serve the members of EAARS and the members at large.


In October, OEA presented an overview of achievements gaps in Kentucky schools, which is available online as well.


Mr. Wickersham said later this year OEA will be providing the 2016 research agenda covering the topics of attendance, pre-school and half-day kindergarten, and high school indicators associated with post-secondary success.


In response to Chairman Wilson’s question regarding whether violations are willful violations or simply a lack of knowledge of the regulations, Mr. Wickersham, from his perspective, said it is rarely a willful or intentional violation but more likely lack of attention to detail, training issues, or preoccupation with one particular facet of implementation of a new law and a neglect of another facet.


Ms. Timmell said that it is rarely intentional; however, the method of determining is the pervasiveness of the violations. If complaints are received about every school in the district, then it is an indication of an intention not to follow the law. However, the complaints must be an egregious type of violation for a referral to be made.


In response to Representative Graham’s question, Mr. Wickersham said the greatest violation reported is failure to consult and hire with the SBDM at the school level and at the district or board level. Ms. Timmell said at the SBDM level, the majority of complaints is failure of consultation policy. At the district level, the majority of complaints regard failure to post or the position is posted for the 30-day period knowing they have pre-selected a candidate. In response to Representative Graham’s question, Ms. Timmell said she believes a lack of knowledge or intentional acts. By pre-selection, Ms. Timmell said the district generally feels they have the most qualified person for the position, but may not realize they qualify for a waiver, so they simply do not ask for one.


In response to Representative Graham’s question, Mr. Wickersham said new school board members with no prior exposure and inconsistency within the regular workforce may not fully understand the training. Once OEA is involved in a matter, has conducted a full investigation and required specific training, it is typically the end and no more complaints are received.



Presentation: 2016 District Data Profiles

Albert Alexander presented the Kentucky District Data Profiles for School Year 2016, which won a notable documents award in 2012. The report was created in 2007 school year, however, caution should be used when comparing certain measures over the years such as graduation rate, ACT, Student Achievement, and fund balance percent and change over the years.


The changes this year are students are no longer tested with PLAN and EXPLORE assessments, allowing OEA to add two additional years of ACT 11th grade test data. In addition, two years of dual credit are now shown for comparison purposes. In the attainment section, adult GED is no longer tracked by the KDE and was replaced with retention rate.


The purpose of the profile support is to provide easy access to commonly used education data. It is intended as a quick, reliable reference for seeing how each district compares to the state as a whole and other districts with similar characteristics.


The primary source of the data is from the KDE School Report Card that is available online. Report cards provide information about each district, including test performance, teacher qualifications, student safety, and parent involvement. The data is recorded by districts in two main systems – The Student Information System – usually referred to by its vendor, Infinite Campus (IC), and MUNIS, a depository for district staffing and financial data. The profiles are organized by a data dictionary which provides data definition to the sources, followed by 173 district profiles in alphabetical order.


The report continues with one profile for Kentucky as a whole and several ranking tables, useful for comparing districts and to see where certain districts rank. The report shows an overview of staffing information, student characteristics, graduation and other attainment data, discipline data, financial data and student performance data.


The overview section of each profile confirms the number of students in terms of membership and adjusted average daily attendance as well as the number of A1 schools in the district. A1 schools, as reported in the data dictionary, are the number of schools under administrative control of a principal and eligible to establish a SBDM Council. An A1 school is not a program operated by or as part of another school. The profiles also divide demographics and membership by grade level for the current years and three previous years. Mr. Alexander said free and reduced price lunch eligibility is 60 percent for the state as a whole, an increase of two percentage points from 2013. Also noted are graduation, retentions, drop outs and disciplinary actions. This is the first year retention rates have been included.


The staffing section includes the number of classified and certified personnel, teacher experience, rank, and salaries. The number of full time equivalence (FTE) teachers includes only classroom teachers. The section also includes state and district salary schedule by rank and years of experience. The state profile shows an average of all the district schedules. The district schedule shows the number of contract teaching days which are the number of base days the KBE has adopted to pay certified staff each year. The minimum contract days any district can have is 185, and 86 districts are at this level. The maximum days any district is allowed to have in 2016 is 188, which only one district had at this level.


The categories for student performance are Advanced Placement (AP), ACT 11th Grade, Kindergarten Readiness, Dual Credit and Next-Generation Learners. This is the second year of dual credit, which allow students to earn high school and college credit for the same course simultaneously. Next-Generation Learners score is the component of the current accountability model and includes achievement, gap, growth, college and career readiness, graduation rates and other performance information.


Finance is also in the report, which provides per pupil current expenditures and revenues. Revenues are broken down by source. It also reports tax rates and SEEK distribution. The average per pupil assessment for the state is $393,537; however, this number does not show the range and district per pupil property assessments. The district per-pupil property assessments range from a high of $1.3 million to a low of just above $100,000. Page 365 of the report shows a wide range of assessment by district. The District Profile reports the number of districts with various types of taxes.


The finance sections also reports the end-of-year fund balance as well as expenditures by function as a percentage of all current expenditures. As indicated by the slide, the state as a whole in 2016, 58 percent of the current expenditures are spent on instructions and that figure has remained constant throughout the last four years.


Regarding the District Current Expenditures Report, the fund balance percentage calculation changed at the beginning of 2011-12 School Year to a 2 percent minimum fund balance.


In conclusion, OEA hopes the committee finds the District Data Profile information useful. Some parts of profiles provide four years of data but previous years can always be viewed online. The time series can be used for tracking trends such as those that affect student, staffing or finances. Trends may also show the impact of various improvement initiatives and context for other information.


In response to Senator Wise’s question, Mr. Alexander said KDE definition of homeless on the demographic profile is defined as a child who was determined under the McKinney-Vento Homeless Education Act. OEA will provide the specifics of the Act to the committee. Mr. Wickersham added that KDE added a change in the calculation regarding children who are awaiting foster care placement and has modified its guidance due to a shift in federal guidance. Before the change, the end result was an incredibly high homeless student counts in some school districts that would seem to defy logic. The revision was to disavow students waiting foster placement. Mr. Wickersham will follow up to ensure this information is correct.


In response to Mr. Wickersham’s question, Senator Wilson suggested District Data Profile distribution be segmented for each person’s district. Senator Wise added that he prefers having his specific counties and districts to use as well.


On a motion by Senator Wise and a second by Representative Graham, the 2016 OEA Annual Report was accepted by the committee.


On a motion by Senator Wise and a second by Representative Graham, the District Data Profile Report was accepted by the committee.


There being no further business, the meeting was adjourned at 2:00 p.m.<MeetMDY1>