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.

1 Comment

Filed under Sandown Issues

One response to “Round One: Metzler Takes on Commissioner of Education

  1. Pingback: Round One: Metzler Takes on Commissioner of Education | The New Media Militia

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