Monthly Archives: January 2018

SAU 55 Prepares to take Board of Education to Supreme Court

In the upside down world of unlimited taxpayer dollars for legal battles that is Timberlane and SAU 55, there is a new development.  Yesterday, SAU 55’s attorney announced to the New Hampshire Department of Justice that SAU 55 intends to pursue the New Hampshire Board of Education to the state Supreme Court.

The state board of education ruled in my favor on Jan. 11, 2018.  Superintendent Metzler, without a vote of the SAU 55 board, immediately ordered your tax dollars to be spent to fight the Board of Education’s decision.  How could a Board of Education decision be so injurious to Timberlane students that the superintendent would demand an expensive court battle, you might wonder?  Is Superintendent Metzler striding in to protect our children?

The Board of Education simply ordered SAU 55’s board to give me a public hearing on my complaint that they are breaking the law by not setting SAU employee salaries and are instead allowing the superintendent to set those salaries. I am entitled to this public hearing by state administrative rules which have the force of law.

Rather than have the SAU 55 board hold a simple hearing where I get to put forward my complaint and they get to snigger up their sleeves and ignore it as they do all complaints, the leader of our school district and SAU 55 would rather battle in the highest court in the state.

  • Is he protecting children?  No.
  • Is he protecting your tax dollars?  No.
  • Is he protecting a principle?  No.
  • Is he protecting his own unfettered power?  Bingo.

Below is the email to the Department of Justice from SAU 55’s lawyer.  If you have the innocent notion that your tax dollars should be paying for children’s education rather than an attorney’s new car, you should call your elected representatives. The Hampstead board couldn’t be more delighted with this waste for which they pay a mere 23% and the Timberlane board is only just warming to the issue.

At the Jan. 25th school board meeting following the supplemental public hearing on the school district budget, TRSB voted to request a special meeting of the SAU board on this issue. The deadline they set was March 9. The legal battle will be well underway by then and thousands of your dollars would have already been spent.  Furthermore, Dr. Metzler assured the Timberlane board that the Hampstead board would not participate in a special meeting on this issue.  Now, how would the superintendent know such a thing?

from: James A. O’Shaughnessy <JOShaughnessy@dwmlaw.com>
to: “Jill.Perlow@doj.nh.gov” <Jill.Perlow@doj.nh.gov>
cc: Donna Green <donnagre@gmail.com>,
“Metzler, Earl” <Earl.Metzler@sau55.net>
date: Mon, Jan 29, 2018 at 3:39 PM
subject: Green v. SAU 55, Case No. SB-FY-18-10-007

Dear Attorney Perlow:

 I represent SAU 55 in the above referenced matter.  As you are hopefully aware, at its January 11th meeting earlier this month, the State Board voted 3-1 (1 abstention) to disregard hearing officer Attorney Peter Foley’s recommended holding that the State Board lacked subject matter jurisdiction to consider a complaint regarding the application of RSA 194-C to the hiring decision of an SAU Board.  Unfortunately, the State Board did not have the benefit of your presence during this meeting, and perhaps the lack of this legal guidance contributed its  unprecedented and troubling decision.  In fact, the only vote against the decision to disregard the hearing officer’s recommendation – a pure question of law – was made by the sole attorney member of the State Board.

 In addition to this poor decision, the State Board elected to go into non-public session to deliberate over a hearing that was held in public, where the petitioner (Ms. Green) expressly waived her privacy and requested that the deliberations be held in public. During the meeting, I joined her request and opined that the State Board was required to hold its deliberations in public unless one of the reasons for nonpublic session specified in RSA 91-A:3, II applied.  It is well established law in this state that a public body cannot meet in nonpublic session simply for the purpose of deliberation.  Ed 212.02 (h) does not trump state law.  Further, while I understand the State Board’s confusion given the problematic language in Ed 212.02 (h), the State Board always deliberated in public prior to this 2018 fiscal year.  This change in policy is concerning as is the decision to ignore multiple legal precedent.

 Finally, Ed 212.03 requires that “all interested parties shall be notified of the board’s final decision in writing and shall be provided with a copy of the decision by certified mail within 10 days after the date such decision is made.”  The final date for the State Board’s written decision was January 21st.  Even if we don’t count weekend and holidays (Ed 201.04 does count such days if the period is greater than 7 days), the decision should have been sent to the parties this past Friday.  My client is anxious to move forward with the filing of post-decision motions as it prepares to appeal this decision to the NH Supreme Court.  Please advise if a decision is forthcoming or if I missed a pleading.

 We hope that the State Board will seek your legal counsel with respect to the above matters.

 Please do not hesitate to contact me if you should have any questions.

 Best regards,

 Jim

James A. O’Shaughnessy
Attorney

 

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Feb. 2 Deadline for Sandown School Board Candidates

Sandown needs a school board candidate.  I will not be standing for re-election.  So far, no Sandown resident has signed up to be on the ballot.

A Call of Duty

This coming Friday at 4 pm is the deadline to sign up to run for school board and budget committee for the Timberlane School District.  There are times in our busy lives when we have to put the interests of community above our own, and school board service to protect the interests of Sandown is truly a call of duty.

Yes, it is a lot of work.  Many meetings.  Much reading.  Yes, it is unpleasant continually trying to assert the authority of the school board when members are not jealous of their own authority and responsibility.  Yes, it is contentious and frustrating, but more people need to do it as a civic duty, as a service to our wonderful town, and as a personal education.  Anyone who is on the school board really trying to do the work, and without a personal conflict of interest, will become convinced of the need for Sandown to be its own school district. The more people who come to this conclusion, the better for Sandown students and our town.

Not every sacrifice is a good one though. Please don’t elect someone who has a spouse or relative working in the district. Even a parent with a child in the district will not be free from worry should a vote or position be one that exhibits, shall we say, independent thought.  Sandown’s representative needs to be an independent voice and mind.

“Do it for the kids!”

My education on the school board has taught me that the ed biz is very much an adult one with the interests of adults ruthlessly defended behind the sweet, kind cloak of children’s benefit. Whenever you hear, “Do it for the kids!” you know that a great many  adults are going to benefit. The taxpayers, and often the parents, are seldom represented.

Sign up is at the SAU 55 office:

30 Greenough Road, Plaistow, NH 03865 – Phone: 603-382-6119

It’s been an honor to serve Sandown, a home I love.  My service has been controversial, but it has always been driven by a conviction that government should be open, and that parents and taxpayers should control the educational destiny of their children through a school board and administration accountable to them.

 

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Superintendents should not be permitted to consult.

The Baltimore Sun today has a well researched article about a former Baltimore County superintendent earning undisclosed income from a shady now-defunct educational consulting organization.  It highlights the pernicious conflicts of interest that can arise when superintendents receive income from consulting.  It is a highly instructive walk down public corruption in the educational system.

“What is SUPES Academy? Dallas Dance indictment involves company that trains school administrators.”  By Liz Bowen, reporter, Baltimore Sun

SUPES Academy is a now defunct Illinois-based company that trained school administrators around the country.

At the request of Baltimore County’s then-new school Superintendent Dallas Dance, SUPES in December 2012 got an $875,000 no-bid contract with the school system to train principals in the district.

According to an indictment of Dance issued Tuesday, the company paid him $90,000 from November 2012 to November 2013, and Dance failed to report the payments on required financial disclosure forms.

SUPES Academy came to the attention of federal investigators in Chicago several years ago. In 2015, a co-owner of SUPES and the former Chicago school superintendent, Barbara Byrd-Bennett, were indicted on corruption charges.

Read more:  What is SUPES Academy?

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Free Classes on the First Amendment

The Nackey Loeb School of Communications in Manchester, NH offers fabulous classes on the First Amendment and other issues in media.
Last week I was the sole student in the Media Law class and had the pleasure of sparring with a law professor for an hour and a half.  It was incredible, and also sad that a high powered and fascinating lecturer was facing such an empty audience.
I highly recommend these classes.  You can join them at any time.  See the 2018 Loeb School Schedule (1)
All best,
Donna Green

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Round One: Metzler Takes on Commissioner of Education

Based on a complaint made by Danville’s  school board representative, Stefanie Dube, the NH Department of Education became aware of Timberlane’s administration of the Tripod student survey.  This is an online survey given to students in Timberlane schools about their subjective experience in the classroom.

Academic or non-academic?

Mrs. Dube complained that the survey contained many non-academic questions and should be classified as a non-academic survey.  As such, by state law, parents should be required to OPT IN to permit their child take the survey.  Normal academic surveys allow parents merely to OPT OUT.  Timberlane should but does not circulate a notice giving parents the opportunity to OPT IN to the Tripod survey for their children.

The Education Commissioner Replies

Within a day of Mrs. Dube’s complaint to the Commissioner, Frank Edelblut, sent this stern email to Superintendent Metzler, dated Jan. 11, 3:38 pm:

Dear Superintendent Metzler,

The Department of Education (“DOE”) has reviewed the information provided regarding the surveys that the Timberlane School District (“Timberlane”) is having students respond to from TriPod Education Partners (“TriPod”).   We have reviewed the December 11, 2017 letter to parents, which provides only an “opt out” option, the TriPod survey questions for three levels of students, and your January 10, 2018 email.

DOE finds that the TriPod surveys are, at best, mixed academic and non-academic surveys.   This finding is based on many of the questions asked, including, but not limited to, the questions included in the sections entitled “Engagement and Motivational Mindsets” and “Success Skills and Mindsets.”

We find that the December 11 letter to parents does not comply with RSA 21-N:11, IX-d or the Technical Advisory issued by DOE on September 15, 2017.   As a result, Timberlane should either remove the non-academic questions, including the questions in the sections entitled “Engagement and Motivational Mindsets” and “Success Skills and Mindsets,” or re-issue the parent letter including an “opt-in” notice.

DOE is very concerned regarding Timberlane’s actions implementing these surveys, as you stated in your January 10 email, under the current circumstances and believes that Timberlane should end any further dissemination of these surveys until the non-academic questions are removed or the parents are provide with the proper “opt-in” notice.

Frank Edelblut

Frank Edelblut

Commissioner of Education

NH Department of Education

101 Pleasant Street

Concord, NH 03301

(603) 271-3144

Frank.Edelblut@doe.nh.gov

Without any consultation with the board, Superintendent Metzler replied by email to the Commissioner at 4:09 pm:

Commissioner Edelblut-

The Administration has been completed at all levels except the middle school at this point. We are working on a customized version to address the non-academic questions removal for future years. We are also considering a paper copy for grades 6-8 for this year. We are under agreement through 2020 with Tripod. As previously stated, we have a legal opinion that disagrees with your assessment and also speaks to jurisdiction regarding this matter. I will certainly speak with the local governing body (School Board) regarding your concerns. Thank you for your quick response.

Respectfully,
Dr. Earl F. Metzler
Then, without any of the promised consultation with the board, our school district lawyer sent this hair raising letter to the Commissioner:
From: “James A. O’Shaughnessy” <JOShaughnessy@dwmlaw.com>
Date: January 12, 2018 at 4:43:57 PM EST
To: “‘frank.edelblut@doe.nh.gov‘” <frank.edelblut@doe.nh.gov>
Cc: “‘Earl.Metzler@SAU55.net‘” <Earl.Metzler@SAU55.net>, “Fenton, Diana” <Diana.Fenton@doe.nh.gov>
Subject:Timberlane School District Tripod SurveyGood afternoon Commissioner Edelblut:

I am writing on behalf of my client, the Timberlane Regional School District, regarding a recent email exchange between you and Superintendent Meltzer regarding the administration of the Tripod Student Survey.  Dr. Metzler asked me to contact you directly to address the allegations you made regarding these surveys.

First, in your email you assert that the December 11th letter issued to parents does not comply with RSA 21-N:11, IX-d.  I assume you are referring to RSA 186:11, IX-d as there is no such law as RSA 21-N:11, IX-d.  You make the blanket assertion that my client violated the law without providing any explanation of the exact alleged violation.  My client would greatly appreciate it if you would discontinue making unfounded and vague assertions, and instead provide a clear explanation of the alleged violation with a precise citation to the provision of law violated.  I am interested to hear your explanation of how a survey about the climate of a school where students spend hundreds of hours a year learning is non-academic.

Second, you state that the Tripod surveys are “at best, mixed academic and non-academic surveys.”  However, you do not provide any explanation or rationale describing how the survey questions are non-academic rather than academic.  As neither my client nor are I were able to discern any specificity based on this vague and conclusory statement, I would be interested in discussing this with you or a representative from your office to learn more about your interpretation of the law.

Third, you assert that the communication does not comply with the technical advisory issued by the DOE on September 15, 2017, regarding non-academic surveys .  As I am sure you are aware,  your technical advisories are not law, regulation, or rule, and they carry no weight or authority whatsoever.  They are, as your website acknowledges, merely a means of providing support and communication to the communities your serve: “These technical advisories are issued in order to provide support to school boards, districts, schools, educators, and communities as they work to build learning communities that engage learners and support depth of knowledge.”

Finally, it is also rather concerning that you chose to send my client a threatening email accusing the District of violating the state law, without first picking up the phone to talk to the Superintendent directly.  What’s more troubling is the tone of your email and the power you display as the Commissioner.  The statute governing non-academic surveys, RSA 186:11 pertains to the duties of the State Board of Education, not the Commissioner’s office.  In my line of business, these legal distinctions are critically important because they define the duties and authorities of our government.  The State Board (not the Commissioner’s office) is obligated by law to ensure that school districts adopt a policy governing the administration of non-academic surveys.  The laws of this state do not appear to provide the Commissioner with jurisdiction to act as the super-police of local school districts.  If I am mistaken, would you kindly direct me to the language in NH law that gives you this authority so I can advise my client.

My client has asked that all future allegations and communications regarding this specific matter be directed to my attention for resolution.  I would be more than happy to speak with DOE legal counsel if that is most appropriate.

Regards,

James A. O’Shaughnessy
Attorney
603.716.2895 ext. 223
joshaughnessy@dwmlaw.com
1001 Elm Street, Suite 303ManchesterNH03101-1845
800.727.1941 | 603.716.2899 Fax | dwmlaw.com
Last night, Jan. 18, was the first meeting of the school board since this embarrassment of a legal letter was issued.  The board did not reprimand Superintendent Metzler.  It did not instruct Metzler to stop sending letters on their behalf.  It did not even attempt to limit his access to money for legal services.  It did nothing but kindly, and with a chuckle, say they don’t want to pick a fight with the commissioner of education. The board did not even vote to send the Commissioner a letter disavowing the previous unauthorized letter!
Dr. Farah, another Danville rep made a motion,”No litigation [on the Tripod issue] moving forward and to require an opt-in function.”  Metzler immediately announced that this was an SAU issue and Timberlane’s board had no authority to direct him on any of this.  He was using SAU money for legal services and the administration of surveys is under the superintendent’s authority.  That was enough for Dr. Farah and she backed down.  Thereafter board members expressed their personal wishes concerning the survey, but no one offered firm instruction or attempted to assert the board’s authority or even regain the board’s reputation in the eyes of our Commissioner of Education.
The superintendent did assure the board he was working with the DOE’s lawyer to work out a solution.
Earlier in the meeting before the Tripod discussion arose, I made this motion:   “The Superintendent may not engage legal consultation on issues concerning TRSD or TRSB without prior vote of the board.”
Only Mrs. Dube voted in favor of this motion.
It is hard to appreciate how derelict your board is on this issue.  Galactic irresponsibility is just the beginning. Your tax dollars are being used to pay a lawyer for an insulting and combative legal letter.  No one knows where this will end but of this much I can be certain – it will cost you money and the school board well-earned grief.

 

And just in case this isn’t enough, Attorney O’Shaughnessey composed another lovely letter to lecture the Timberlane school board and the Hampstead school board on default budgets.  Think of it.  These are your tax dollars spent by a superintendent without request of any board to  address actions and interests of the boards under which our superintendent is supposed to serve.  Dr. Metzler refuses to allow this letter to be made public.  He claims he has the client/attorney privilege which he has established to the disadvantage of your elected representatives and the public as well – all on your dime.

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Recording of NH Board of Ed. Green v. SAU 55

On Thursday, Jan. 11, 2018, the New Hampshire Board of Education heard arguments to dismiss or not dismiss my complaint to them about salary setting practices at SAU 55.

James O’Shaughnessy represented SAU 55.  He spoke first for 23 minutes, arguing that the board did not have jurisdiction over the matter.  He dared not argue the merits of my complaint because he knew that would be a clear cut loss.

I spoke next.

After the two parties presented, the board voted to go into non-public for deliberations though there was great confusion about what legal reference gave them the authority to enter non-public in this matter, an issue still not resolved.

You can hear the proceedings here.  If I do say so, I delivered a stem winder of a speech.  Welcome to my world

The board spent a sizable time in non-public deliberations.  The audio editing doesn’t indicate this time gap, but I’m grateful it captures the 3-1-1 vote in my favor once the board resumed open session. To my happy surprise, and contrary to their own Hearing Officer’s recommendation, the board of education ruled they did indeed have jurisdiction over the subject matter of my complaint.  That may appear a trivial and technical matter but SAU 55 has been spending oodles of money over a number of months trying to convince everyone that there is no higher authority in the state than a superintendent and an SAU board.  The NH Board of Education ordered SAU 55’s board to hold a public fact-finding hearing on my compliant.  So, against the determined wishes of SAU 55’s board, (your elected officials, by the way) they are finally going to have to confront the substance of my allegations.

Later that day, Mr. O’Shaughnessy informed me by email that he was instructed to pursue a request for reconsideration.  This instruction came without any consultation by the superintendent with the SAU 55 board.

It’s your tax dollars in legal fees being burned for no reason whatsoever.  I haven’t engaged a lawyer over this and there is no reason the SAU needed to do so. Deal with my complaint via a public hearing, as is required by Administrative Rules from the Department of Education, and be done with it!  Is that such a frightening prospect?

Thanks to Peter Martin of Exquisite Productions for the audio recording and the convenient editing.  The full video of the meeting will be available Sunday night at http://www.nhboardofeducation.com.

 

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Green Prevails at State Board of Education

Today the New Hampshire State Board of Education took jurisdiction over the matter of my complaint concerning SAU 55.  Further, they ordered SAU 55’s board to hold a “fact-finding” public hearing.  The vote was 3-1-1.  SBOE member, Bill Duncan was not present.

When I returned home from other meetings in Concord, I received this email from SAU 55’s lawyer:

Hi Donna: 

I wanted to let you know as a courtesy that I have been directed to pursue an appeal of the State Board’s decision and will be filling a motion for reconsideration upon receipt of the State Board’s written decision. 
Sincerely,

Jim O’Shaughnessy

DRUMMOND WOODSUM
_________________________________
This decision to appeal did not go to any board for authorization.  When is Superintendent Metzler going to stop wasting your money in legal fees?
When are YOU going to insist he does?
Tonight is a public hearing on the Timberlane budget.  A motion to strip money out of the legal line would be exceedingly appropriate, but is there anyone to do it?

 

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