The Charter Working Group May Have Been A Public Body

Filed in Delaware by on June 10, 2013

Rep. Kim Williams had a few questions about the Charter Working Group:

From: Williams, Kimberly (LegHall)
Sent: Friday, June 07, 2013 11:23 AM
To: McConnel, Ian R (DOJ)
Cc: Williams, Kimberly (LegHall); Peterson, Karen (LegHall)
Subject: 24 Member Working Group – Charter

 Good Morning Ian,


I am requesting an opinion today from the AG’s office and I am also requesting a formal opinion from the AG’s office regarding the Appointed 24 Member Working Group that was formed to review the current charter law.  The group was appointed by the Governor.  The House will probably be voting on House Bill 165 (Charter) next Tuesday and it is important to have an opinion as to whether or not this Working Group violated Chapter 100. 


The Appointed 24 Member Working Group was formed last year and meetings were not posted, the public was not included, and no minutes were kept of these meetings.  According to Chapter 100 – Freedom of Information Act under Definitions and Open Meetings this Appointed Working Group should of posted their meeting schedule, had the publics involvement and recorded minutes. 


The House Education Committee just released House Bill 165 (Charter Bill) by a 7 to 6 vote in favor of releasing.  I am Vice Chair of the Education Committee and I presented my concerns to the Education Committee this week. I am extremely concerned about the Working Group and the lack of records and most importantly the lack of public input. 


Here is a little background.  I was on the Red Clay School Board at the time when the Working Group was meeting and we as a board were not informed or updated on the groups progress. There was a representative on the group who was to be keeping the school boards informed.  After I was elected to the 19th District, I requested information from the member of this committee (12/21/12 and 1/02/13) who should have been updating the school board members, he did not return my emails and I left one voice message for him as well.  I requested from a member of the Governor’s office (1/07/13) to see if she could get in touch with him and she had no luck. 

Back in December (12/13/12) I sent an email requesting that I could sit in on an upcoming meeting and for an invitation to be sent to the Red Clay School District.  Red Clay is the only district in the state to charter charters.  I also requested an invitation by phone to attend a meeting of the Working Group after being elected and again I asked if I could bring a guest with me.  This guest was from the Red Clay School Board and I was told I could attend but they did not want me to bring anyone with me to the meeting, it would not be right to open it for one and not open it for all.  I know for a fact that the President of the State PTA was allowed to sit at the table during these meetings but was not an appointed member of the Working Group.

First, GO KIM!  Second… check out the DOJ’s response:

From: McConnel, Ian R (DOJ)
Sent: Monday, June 10, 2013 3:45 PM
To: Williams, Kimberly (LegHall)
Cc: Peterson, Karen (LegHall); Reardon, Allison E (DOJ); Staib, Jason (DOJ); Rogalsky, Joseph E (DOJ); Mullaney Sr, Tim (DOJ)
Subject: RE: 24 Member Working Group – Charter


Dear Representative Williams:


I write to respond to your request for informal and formal opinions from this office with respect to the applicability of Delaware’s Freedom of Information Act, 29 Del. C. §§ 10001-10006 (“FOIA” or the “Act”), to the Charter School Working Group (the “Working Group”).   This office, as a matter of general practice, does not give informal opinions, particularly with respect to FOIA matters, which tend to be fact specific.  Nonetheless, in light of the important and pressing nature of your request, we conducted a preliminary review into the issues you raised below.  


Based on the information you provided and our review, the Working Group may be a “public body” within the meaning of FOIA.  29 Del. C. § 10002.  If that is the case, the Working Group was (and, if still active, remains) subject to the “open meeting” provisions of the Act.  See generally 29 Del. C. § 10004.  Thus, any prior meetings conducted without adequate public notice or compliance with other open meeting requirements may have been held in violation of the Act.  We note however that, as a practical matter, there may be no effective way to remediate any such violations.  According to your email below, the Working Group has already made its recommendation to legislators. 

 Of course, pursuant to 29 Del. C. § 10003, you are able to submit a FOIA request to the appropriate public agencies, officers or officials to obtain any publicly available documents, and in the event you do not receive timely or appropriate responses, you may appeal and bring the matter to our attention by filing a FOIA petition with this Office in accordance with FOIA §§ 10005(b), (e).

 With best regards,


I’m so tired of this nonsense.  Obviously Ed Reformers and charter advocates need secrecy – looks like their ideas/plans/”results” can’t stand the light of day.  Shame they needed to hide.  There was a chance to have a serious discussion.  But if we had that discussion, Charters wouldn’t have gotten their Happy Birthday 165!  Depressing.


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A stay-at-home mom with an obsession for National politics.

Comments (50)

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  1. Mike O. says:

    I wish I had petitioned the AG back in August. I have learned my lesson. Go, Kim!

    However, this is a preliminary opinion. When will the formal opinion come, and what will it say, especially after the Governor calls the AG?

    Left unsaid is WHO “may” have violated Chapter 11. “Violations were committed.” When the finger points back to the Governor’s office, who knows what will happen.

    Thanks, Kim, and all others who were involved. This is a victory no matter what happens to HB 165.

  2. Mike Matthews says:

    Holy shit.

  3. Mike O. says:

    I thought I ought to reprint this comment of mine from a few days ago:

    MIke O. says:
    June 6, 2013 at 11:21 am

    Under FOIA, public bodies under the executive branch are REQUIRED to keep minutes and to publish them on the web. So their only option to evade FOIA was to make a spurious claim that the group was not a public body. And that’s exactly what they did. FOIA does not have any exemption for informal groups, or groups without authority. I suspect there is an Alberto Gonzalez-style legal finding at the beginning of all this.

  4. pandora says:

    Kavips says: “Even if it barely passes by the skin of its teeth, we now have basis for the filing of an injunction based on an illegal action resulting in this legislation coming forward, to stop it in its tracks.”

  5. Mike O. says:

    I don’t think the legislation can be stopped by an injunction. Under FOIA any action taken by the group can be invalidated if FOIA was violated. But this group did not take any action, officially. Never mind that it was stocked with committee chairs, lawyers, and legislators including the guy who claims to have written the bill. In its mind the group’s mission was to write this bill, or at least provide cover for it.

    No, the best bet to defeat it is to hope decent legislators are overcome by the stench of charter lobbyists and their elected friends trying to wire this bill, and suppress and subvert the political process from the very highest levels to attain their ends. If I were a Representative I would be quite offended.

  6. It is ALWAYS very important for an elected official to petition the AG for opinions.

    VERY OFTEN citizens are brushed aside as having no standing.

    Well done, everyone.

    I didn’t get the sense it is MAY. I thought it is clearly stated that the group is subject to FOIA. Am I looking through rosey tints on that?

  7. pandora says:

    First line, second paragraph says: “Based on the information you provided and our review, the Working Group may be a “public body” within the meaning of FOIA.

    I used the wording from the email. But, who knows anymore, Nancy. My head is spinning. 😉

  8. Confused says:

    Why might this be a public body? Was it created by legislative action? If the Governor simply put together a “working group” to meet and put together draft legislation, how is that a “public body?” A “public body” is, presumably, a body created by legislation and has authority to do something. If DNREC or DelDOT created an internal working group to draft proposed legislation, I don’t think the working group would constitute a public body.

  9. SussexWatcher says:

    Confused: You certainly are. Read the law and try to keep up. A public body need not be created by legislation. FOIA is the clearest statute in state law. Here you go:

    (h) “Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political subdivision of the State, including, but not limited to, any board, bureau, commission, department, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which:

    (1) Is supported in whole or in part by any public funds; or

    (2) Expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or

    (3) Is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.

    Relevant bits bolded for emphasis.

    I’ve also been told that John Flaherty, bless his heart, has filed an appeal with the AG’s office.

  10. kavips says:

    Injunctions can be made for even the most spurious of reasons. This is not spurious. All it needs is a judge more inclined to lean to openness than endorse these closet politics…

    Now, in the very least and I could use some help looking this up, but the following who were a part of this illegal group, should in the very least, recuse themselves from this vote.

    They are: Rep. Darryl Scott (D-Dover); Rep. Earl Jaques, (D-Glasgow); Rep. Donald Blakey (R-Dover South); and if it makes it into the Senate, Sen. David Sokola (D-Newark), chair of the Senate Education Committee and Sen. Gary Simpson (R-Milford),

    For them to secretly craft a bill as a public body, a public body that broke the law by a) meeting in secret; b) not capturing minutes, in the very least, they should not be allowed to be able to assist in the vote’s passage; in the very least, the bill must go forward on its own merits (which are none) and be voted up or down by those completely uninvolved in its formation.

  11. Steve Newton says:

    Meanwhile, charter school parents all over the state today received a link from their school leaders to an anonymous document that seems to characterize the work group as a public body, while at the same time urging them to lobby their elected officials for HB 165 …

    (yes, it is a shameless plug)

  12. John Young says:

    and a great read.

    thx Steve!

  13. Mike O. says:

    Sure, it was a diverse working group -it had representatives from MULTIPLE different charter schools.

  14. Mike O. says:

    Steve, can you post the direct link to the PDF for that document? There are pretty good indications it came from the Charter Network (duh).

    By the way Steve, I couldn’t post on your blog. Your captchas are just too hard for me 🙂 Your blog thinks I am a robot.

  15. Citizen says:

    John ‘s proposal above is excellent. Rep Jaques needs to pull this bill from consideration until the legal concerns surrounding the governor’s working group are sorted out. Call and/or email Jaques and ask him to do this, as the bill’s sponsor: 302-744-4142;

    Tell your own state rep., too, that it would be irresponsible and an offense to voters for the bill to be considered now, with legal questions under examination by the AG and Dept of Justice.

    Tell any friends of public education and/or honest, transparent government to do the same. These issues were not in the public eye when the bill was debated in committee last week (though plenty of objections were raised about the bill itself)–but now they are.

  16. Steve Newton says:

    Mike your comment did go through.

    Here’s the link (and yes it is the Charter School Network):

  17. liberalgeek says:

    Anyone know Catherine Nessa (the apparent author of the document). Last modified by “csw”.

  18. Steve Newton says:

    According to Linked In and other sources, Catherine Nessa is …

    … wait for it …

    Communications Officer for the Rodel Foundation of Delaware

  19. Mike O. says:

    Also Triumph Consulting. That name rings a bell. Weren’t we trying to figure out who they were a while back? I can’t remember the issue though.

  20. anon says:

    Wednesday is the last committee hearing day at Legislative Hall, so if HB 165 passes the House tomorrow, (there are a lot of bills on the House agenda so it might not), it will be in the Senate Education Committee on Wednesday. Now, El Som can help me out here a little, but if its not in Committee by Wednesday they can suspend the rules (El Som does that mean they can skip the committee hearing or do they have to hold a special hearing on another day?) and still get it on the Senate floor well before 6/30, aka “the end of all things.”

    This is the fiscal note attached to the bill, I’m sure our public school system didn’t need this money:

    1. This Act is effective July 1, 2013.

    2. This Act will fund minor capital improvements at the same level as Vocational Technical School Districts whereby the state will provide 100 percent of funding for minor capital improvements versus the current formula of 60 percent of funding.

    3. The proposed level of funding for minor capital improvements for charter schools included in the Fiscal Year 2014 Governor’s Recommended Capital Budget updated for current school year enrollment is $528,597. This amount represents 60 percent of funding for minor capital improvements. This Act will increase the proposed level of funding to $880,454, an impact of $351,857 as it represents 100 percent of funding for charter school minor capital improvements. These estimates do not include Pencader Charter School as it is scheduled to close at the end of the current school year.

    4. This Act also establishes a Charter School Performance Fund that is subject to an appropriation and shall not exceed $5.0 million annually. The Fiscal Year 2014 Budget Act, as written by the Joint Finance Committee, includes an appropriation of $2.0 million for the Charter School Performance Fund pending the passage of this Act.

    5. The Charter School Performance Fund is to be administered by the Department of Education through an application process focusing on an applicant’s performance, supplemental non-state sources of funding, plans for start-up or expansion, and service to high-need students, as defined by the Department of Education.

    Fiscal Year 2014: $351,857 for minor capital improvements
    Indeterminable for the Charter School Performance Fund as it is subject to available appropriation ($2.0 million is included in the FY 2014 Budget)
    Fiscal Year 2015: $351,857 for minor capital improvements
    Indeterminable for the Charter School Performance Fund as it is subject to available appropriation.
    Fiscal Year 2016: $351,857 for minor capital improvements
    Indeterminable for the Charter School Performance Fund as it is subject to available appropriation.

    Office of Controller General (Amounts are shown in whole dollars)

  21. anon says:

    If this passes the House tomorrow, and out of the Senate committee on Wednesday, it could be on the Senate floor Thursday.

  22. OY, Just looked at the CSW report on John Young’s link above. When I asked Sokola recently if the working group had any parents on it he said yes, the PTA.

    Delaware PTA President Yvonne Johnson is also on the Development Committee for CSW as well as the Parent’s group.

    What better way to develop the charter school than find some dupes at leg hall to slather them with cash?

  23. Aoine says:

    but WAIT, there is more
    Ms Catherine is also:

    Public Relations Consultant
    Delaware Charter Schools Network

    Government Agency; 10,001+ employees; Government Administration industry

    January 2012 – Present (1 year 6 months)

    Media relations and communications support for DCSN leadership and schools.

    so she has on her profile she IS part of a governmental agency – then she is required to abide by FOIA! as are they by default…..but then, we know that already

  24. SussexWatcher says:

    Stupid much?

    Just because someone uses the “Government agency” label on LinkedIn does not mean they work for a public agency. It’s a nonprofit.

  25. mediawatch says:

    Nessa recently joined Charter Schools Network. She had been doing PR for Rodel.

  26. There were plenty of members of the working group who were being paid for their time (partly established by John Young’s links to the state checkbook) which is one measure of determining FOIA responsibility. I would assume that Taber wasn’t there on her own dime, for one.

  27. Mike O. says:

    Even if they were on there own dime, it wouldn’t matter in terms of FOIA. They were appointed by the Governor.

  28. Joanne Christian says:

    Of course John’s proposal is excellent of tabling or pulling the bill. But citizen, remember…..with our own ears we heard him proclaim, when asked “he would not table the bill…..or any other delay as written (as in revisit or rework)”, and then it went to a vote.

    The crosswalk on the legalities of this bill involving public education and public monies is staggering. I’m not dissing the sentiments here about FOIA and “slush funds”, but gang the meat and merits of the absurdity of 165 should be detonated to the ALARM of all our legislators, before the dialogue of idealogies becomes cacophony heard above BASIC FUNDING RIGHTS RESPONSIBILITIES and RESTRICTIONS per federal and state education law. Just sayin’. Hold the tomatoes. I don’t want to see 165 be carried, because of HUGE distractions to what “they” view as “details to be addressed….”, when right out of the gate is a dinosaur entered into a horse race. We need to keep emphasizing, and illuminating only horses, all horses, track conditions, stables, etc….I hope I am making sense to someone.

  29. In response to anon’s question, the legislative rules are the rules until the rules are suspended. At which point there ARE no rules.

    HB 165 doesn’t have to be routed through committee in the Senate, it can simply be introduced for consideration under a motion to ‘Suspend the Rules’.

    That’s one reason why the last two weeks are so dangerous. Plenty of unvetted bills being considered under rules suspension, often late at night when even the most eagle-eyed legislator becomes less diligent.

    It’s why there are more lobbyists in Leg Hall on June 30 than any other day.

  30. SussexWatcher says:

    “There were plenty of members of the working group who were being paid for their time (partly established by John Young’s links to the state checkbook) which is one measure of determining FOIA responsibility. I would assume that Taber wasn’t there on her own dime, for one.”

    Read the damn law, Nancy. Nothing states that the source of a public body’s member’s paycheck determines FOIA applicability. That would mean any outside committee upon which a state employee serves – say, a United Way panel – would be subject to FOIA.

    The issue instead deals with whether the PUBLIC BODY is supported with public money. If this committee met in government buildings and got admin support from state secretaries and had reccomendations printed out and copies made in the governor’s office, for example, that would be of importance. If public body members were paid for travel or photocopies or other expenses for attending these meetings, that would be a key factor as well. (It’s not clear that Mr. Young’s financial figures matched up to travel or expenses linked to these meetings.)

    But simply stating that Taber or the Seaford school district got state money and thus the whole working group is subject to FOIA – that’s a stretch.

  31. Citizen says:

    The DE Chief Schl Officers Association (superintendents) has written to state legislators asking them to reject this bill, due to the adverse impact it will have on their schls. I am not on a device that allows me to paste easily but have forwarded the letter to NW & JY for posting.

    So will our elected “leaders” listen to them? Let’s hope. I guess they were not among the stakeholders consulted during drafting.

  32. Put your pants back on, SW. You misconstrue what I meant. I believe that John was isolating what he thought were SPECIFIC monies related to the working group activities. D’uh.

  33. Citizen says:

    I’ve heard that Mike Mathews will tweet from the floor, and that there is streaming audio of House sessions. Anyone able to provide links for either? Thanks.

  34. SussexWatcher says:

    Nancy: That’s not what you wrote, but nice try.

  35. Mike O. says:

    House audio link


    LInk is live now; House is gong through honorary resolutions now.

  36. pandora says:

    Beat me to it, Mike!

    And Mike is tweeting!

  37. pandora says:

    Hmmm… maybe I should put up a new post with this link? Thoughts?

  38. Mike O. says:

    BREAKING: President of Delaware Chief School Officers opposes HB 165!! that’s the superintendents, folks!

    Full letter:

    From: Thomas Michael

    Sent: Tuesday, June 11, 2013 10:23 AM
    *To:* Ramone, Michael (LegHall); Miro, Joseph (LegHall); Baumbach, Paul
    (LegHall); Osienski, Edward (LegHall); Kowalko, John (LegHall)
    *Subject:* HB 165 Charter Schools

    I correspond to you as current President of the Delaware Chief School
    Officers Association regarding House Bill 165. There are several
    components of the bill in which the Chief School Officers Association has
    significant concern and is in direct opposition. The establishment of a
    charter school performance fund of $2 million is misguided and one of which the Chiefs Association is in direct opposition. We do not believe this fund
    is appropriate given the fact that many charter schools are selecting
    students and creating very much a form of re-segregation. Certainly we do
    not believe this was the intent of the charter law but clearly it is the
    resulting factor and should not be provided tacit approval by legislative
    action. Additionally, the bill provides the Department of Education
    authority over the transfer of funds from local public school districts to
    charter school districts. We believe this is wrong. If this would be a
    good practice, then it would seem reasonable the Department of Education can also transfer funds from charter schools to public school districts. Finally, the extension of a renewal term of a charter school for ten years seems excessive and does not provide reasonable and prudent oversight to allow a charter school to exist for ten years if it is ineffective, not holding to its original charter and not making educational progress. Such an extension would seem irresponsible. ****

    Therefore, the Chief School Officers Association asks your consideration in voting *no* to House Bill 165.

    Respectfully submitted,

    Michael D. Thomas, Ed. D.

  39. pandora says:

    That’s quite a letter. It brings a tear to my eye. Since 2002 I’ve been pointing out the re-segregation in our schools due to NSA, Choice and charters. Our voice is growing.

  40. mediawatch says:

    The supers would never admit that the NSA and choice contributed to resegregation, no matter how clear it might have seemed to the rest of us. When the charters do it, it suddenly becomes obvious to them.
    Good for Thomas for writing this letter, and raising the resegregation issue, but you’ve got to wonder what took him and his group so long to say anything.

  41. pandora says:

    Agreed, mediawatch, but by going down that path they might have opened… Pandora’s Box. (Sorry, couldn’t resist!)

  42. Mike O. says:

    Maybe if he had been on the Charter working group…

  43. mediawatch says:

    The governor wouldn’t have wanted him on the working group. Thomas was upset last year that a charter was approved for Early College HS at Delaware State campus (sked to open in 2014) while his district is building a new Dover HS. He surely would have raised a stink on the issue of considering impact of new charters on districts where they would be located.

  44. Mike O. says:

    the letter did say he was speaking for the Association, so he must have gotten some kind of consensus.

  45. mediawatch says:

    No doubt the consensus developed around the finance issues. You don’t see the superintendents screaming about curriculum and classroom issues associated with charters. But when there’s money at stake, it’s real easy for them to take a stance.

  46. SussexWatcher says:

    “I correspond to you”?

    This guy is an educator?

  47. Aoine says:

    Gee Sussexwatcher….apparently everyone in here is just too stupid for you to deal with..

    Sorry we r not all up,to your standard of excellence

    So why don’t you go blog with the intelligencia over at DP? Might be a better….ummm, fit?

    Just sayin’