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California School Fiscal Services

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Appeals Court denies constitutional right to minimum K-12 funding

Posted on April 24, 2016 at 4:45 PM Comments comments (3627)
Two really important points jump out at me here...

1.  The California Court of Appeal's doesn't believe that the Constitution is responsible for defining what is considered "adequate" funding. This doesn't mean that they agree or disagree that our current level of funding is adequate - just that it's not their call.

2.  "Even after restoring lost revenue, California will remain the lowest in the nation in per-student staffing levels."  This is easy for many to forget  when we are in the midst of receiving year-over-year increases to LCFF.  

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By John Fensterwald | April 20, 2016 | 2 Comments

 

The state Constitution does not guarantee children in California a minimally funded quality education, a divided California Court of Appeal ruled Wednesday in a landmark decision closely watched by proponents of more K-12 spending.

 

The 2-1 decision on two six-year-old lawsuits denies the California School Boards Association and student advocacy groups the right to a trial to make the case that underfunding by the Legislature is denying students the quality education they’re entitled to. The plaintiffs immediately said they would appeal the ruling to the California Supreme Court.

 

The San Francisco-based 1st District Court of Appeal ruled on separate but related lawsuits filed in 2010: Campaign for Quality Education v. State of California, filed by Public Advocates on behalf of five nonprofits serving low-income, minority families, and Robles-Wong et al. v. State of California, jointly filed by the school boards association, the state PTA, the Association of California School Administrators and the California Teachers Association, together with Stanford Law Professor William Koski, representing low-income children.

 

Both lawsuits argued that the state’s “insufficient, irrational and unstable” school funding system failed to provide students their constitutional right to a quality education. The Legislature spelled out what that entails by imposing graduation requirements, rigorous academic standards and other mandates, but didn’t provide school districts with enough resources to meet the demands, the lawsuit argued.

 

In his majority decision, Associate Justice Martin Jenkins acknowledged children’s fundamental right to an education, which the 137-year-old state Constitution broadly defines as the obligation to “encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.” But the Constitution doesn’t include a requirement for a minimum quality level of education for schoolchildren, Jenkins wrote, or a minimum level of expenditures for education.

 

“We agree wholeheartedly with appellants that the provision of a quality education for all public school students is an important goal for society,” he wrote, but it’s the Legislature’s prerogative to determine what quality means. Jenkins quoted a school funding decision from Illinois that said judges lack the expertise to set appropriate levels of school funding; assuming that responsibility would preempt the public’s right, through open dialogue with elected officials, to do so.

 

In a concurring opinion, Associate Justice Peter Siggins wrote, “As much as I can appreciate the plaintiffs’ frustration and dissatisfaction with the overall adequacy of California’s public schools, and recognize our Legislature’s challenges in adequately funding schools to meet the standards it sets, I cannot agree” that the Constitution provides a right to “command the state to fund schools at some qualitative level.” If large numbers of students are underachieving, there are other legal remedies without expanding a constitutional right, he said.

 

But in his dissent, Associate Justice Stuart Pollak disagreed with the conclusion that there is no minimum requirement to support schools. The Constitution’s mandate to provide education “implies the need to maintain public schools at some minimum level of competence,” he wrote. Not only do the courts have a responsibility to determine whether the allegations of minimum funding are valid, but “the courts are capable of fulfilling that responsibility,” and providing “meaningful relief” if needed, he stated.

 

Both lawsuits were filed at a time of big state budget cuts for education, and the court of appeal considered only the arguments in the briefs presented to Alameda County Superior Court Judge Steven Brick in 2010. Since then, the Legislature has restored most of the funding lost during the recession and adopted challenging academic standards – the Common Core and the Next Generation Science Standards. Pollak alluded to the changing circumstances in writing: “Should these actions proceed to trial, the focus would of course be on current conditions to the extent that relevant data is available. Nonetheless, despite changes – hopefully improvements – that have occurred more recently, the fundamental issues raised by the complaints remain.”

 

California’s Constitution “requires a system that provides students with a meaningful basic education in reality as well as on paper,” he wrote.

 

John Affeldt, managing attorney for Public Advocates, said in an interview that even after restoring lost revenue, California will remain the lowest in the nation in per-student staffing levels, and the Legislature has not sufficiently provided enough funding to deliver quality academic standards for all students.

 

He said that he and the other plaintiffs disagree with the majority opinion that a fundamental right doesn’t guarantee “a minimum quality.” That right would be hollow without it, he said.

 

Confirming that the plaintiffs in Robles-Wong will also appeal the decision, California School Boards Association CEO & Executive Director Vernon Billy said in a statement, “Today’s decision is truly disappointing for California’s students and families. We firmly believe all students in California have a fundamental right to an education that meets the standards the state has set – and that is currently being denied to many, especially low-income students and students of color.”

 

 


Vergara Plaintiff Talks Landmark Decision on Teacher Tenure

Posted on February 2, 2015 at 5:00 AM Comments comments (84)

Do we all remember Jackie McHaney's great blog on the Vergara decision? Well, don't think that this lawsuit has gone away.

As a quick reminder, this decision attacked teacher tenure in California schools.  Take a few minutes to watch this update:


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More on the Vergara Decision

Posted on August 28, 2014 at 5:00 AM Comments comments (633)
A very interesting article that follows up on our own Jackie McHaney's previous blog.  You can find her original blog under "lawsuits".  

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TEACHER UNION WORDSMITHS

Mike Antonucci, Intercepts

 

I went over the press releases and statements on the Vergara decision from the various teachers’ unions and have drawn a few inferences about their communications strategy going forward. The language used – and omitted – appears to be highly crafted, polled and focus-grouped.

 

The NEA press release and statement from president Dennis Van Roekel includes in the first two sentences the words “multimillionaire,” “ultra-rich,” “deep-pocketed,” “corporate” (twice), “special interests,” and “privatizing.”

 

Missing from the statement are the words “seniority” or “tenure” (or its stand-in, “due process”). Instead there are two references to “experience,” which signals the angle NEA will probably take.

 

AFT president Randi Weingarten had a different emphasis. She mentioned “due process” and “teacher protections,” but also omitted “tenure” and “seniority.”

 

She did not use “corporate” at all and “wealthy” only once, but money was in her message. She referenced “budget crises,” “full and fair funding,” “funding inequities” and “high poverty.”

 

The California Teachers Association referred to “professional rights,” “these laws” and “challenged statutes” in lieu of “tenure” and “experience” in lieu of “seniority.” CTA focused on the conduct of the trial itself, though it also mentioned “millionaire” and “corporate.”

 

The California Federation of Teachers emphasized “taking away rights from teachers.” CFT followed Weingarten’s lead in “underfunding, poverty, and economic inequality,” but mirrored NEA in using “experience.” CFT did mention “due process,” but did not use “seniority” or “tenure.”

 

The outlier is the Chicago Teachers Union and its president, Karen Lewis. CTU used “tenure” prominently in its press release and spent a lot of space defending it. Much of the statement deals with the “calculated deprivation of resources.” Seniority is not mentioned.

 

My view of all this is that the unions will, as they have in the past, score well with the general public when attacking evil corporate puppetmasters. But judging from the media reports of the Vergara ruling – almost all of which prominently use “seniority” and “tenure” – they will have an uphill battle altering the public perception of protecting bad teachers.

 

Regardless of merits, in communications whichever side has to do the explaining is the side that loses. The legal process will be long and drawn-out. The PR process will be immediate and unrelenting.

 


Important Case Decision flies under the radar while we were focused on Vergara, -- could drastically impact school district employee evaluations- Author: Jackie McHaney

Posted on August 1, 2014 at 2:25 PM Comments comments (4526)

With all of our attention recently focused on the outcome of the Vergara decision, the recent Court of Appeal decision in Poole v. Orange County Fire Authority (2013) 221 Cal.App.4th 155, flew so low under the radar that it almost went unnoticed.

 

In Poole, Steve Poole was a firefighter with the Orange County Fire Authority (Fire Authority) from 2008 to 2010. As part of the evaluation process, Poole’s supervisor had a practice of maintaining daily logs on a flash drive and in a folder kept at his desk, to enable him to refresh his memory and assist him in preparing written evaluations. Poole’s supervisor asserted that the daily logs included the recording of “any factual occurrence or occurrences that would aid … in writing a thorough and fair annual review.” In the case at bar, it was determined that Poole’s supervisor made over one hundred handwritten and computerized notes, which documented the efficiency of Poole as well as other firefighters in the department, in carrying out their duties. In 2009, Poole’s supervisor, relying largely on his daily logs to aid in the preparation of the written evaluation, issued Poole a substandard evaluation because his “work habits, personal relations, adaptability, and progress were unsatisfactory.” As a result of this substandard evaluation, Poole was placed on a performance improvement plan.

 

Unsatisfied with his substandard evaluation, Poole (with the assistance of his union) sought copies of the daily logs, which included more than 100 entries regarding Poole, many of which described areas in need of improvement. Poole was provided copies of these documents. Upon receipt of these documents, Poole requested that all adverse comments in the daily logs be removed because he never had any opportunity to respond prior to their use for personnel purposes in his performance evaluation and subsequent improvement plan. The Fire Authority refused to remove the comments, contending that, even though the notes were for personnel purposes, they were never “entered” into any file used for personnel purposes. Rather, the Fire Authority contended that Poole had the opportunity to respond to the comments in the evaluation, which would be placed in the personnel file.

 

Poole lost at the trial court level. The trial court denied the petition, likening the daily logs to “post-it” notes that were intended to remind the supervisor of events when he prepared the annual performance evaluation. The trial court also pointed out that the parties conceded that if Poole’s supervisor had written Poole’s annual performance evaluation from his memory and not based on written recollections in the daily logs, there would have been no lawsuit. The trial court therefore concluded the daily logs were not part of the personnel file and Poole had no right to respond to the adverse comments. Poole and the union appealed the trial court decision.

 

On appeal, Poole and his union asked the court to order all adverse comments to be deleted from the daily logs pursuant to a provision of the Firefighters Procedural Bill of Rights Act (FBOR) that provides that adverse comments shall not be entered into a personnel file “or any other file used for any personnel purposes by his or her employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment . . .” (Gov. Code, § 3255.) Obviously, the purpose of this request is to eliminate the ability of the Fire Authority to rely on these prior acts as a factual basis for the substandard performance evaluation and placement on the improvement plan.

 

In its review, the Court of Appeal relied heavily on an old California Supreme Court case, Miller v. Chico Unified School District, which interpreted an Education Code section regarding a teacher’s right to review and comment on information of a “derogatory nature” before placed in their personnel file. In Miller v. Chico Unified School District (1979) 24 Cal.3d 703, a school principal had been reassigned to a classroom position after the district’s governing board reviewed 20 (twenty) confidential memoranda prepared by an Associate Superintendent that the principal was unaware of. The California Supreme Court in Miller ultimately ordered the principal to be reinstated to his administrative position because the principal was not provided the opportunity to review or comment on the memoranda even though the district’s governing board made its decision based on these documents.

 

The Court held that the interpretation of the Education Code in the Miller decision should be applied to sections 3255 and 3256 of the FBOR. It noted that Poole’s supervisor’s daily logs were used for making personnel decisions and affected Poole’s employment status. Poole received a substandard annual performance evaluation and placed on an improvement plan, based upon the information maintained in the daily logs. (This of course discounts any independent recollection the supervisor may have had). The Court concluded that the FBOR was violated because the daily logs were used for personnel purposes. The Court noted that the FBOR’s right to respond to adverse comments that may affect personnel decisions “is frustrated when the firefighter’s supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter’s last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to adverse comments in that review.”

 

On February 26, 2014, the California Supreme Court granted a petition to review the recent Court of Appeal decision. It is important to understand, however, that if the Poole decision is upheld by the California Supreme Court, it will be problematic for school districts because many supervisors rely on informal notes compiled during an evaluation period to complete a thorough and accurate annual evaluation at the end of the year. Such a ruling will: (a) prohibit a supervisor from keeping or maintaining any negative notes or comments or documents regarding an employee unless the employee was provided a prompt opportunity to review and comment upon each separate note or comment; and (b) will require supervisors to start documenting every incident deemed worthy of consideration for inclusion in an evaluation, provide each employee with a separate comment or note and an opportunity to respond to it, and then place all of these documents into their personnel file – which we know employees will not respond well too.

 

Hopefully, the Supreme Court will conclude that an individual negative note or comment kept in an employee’s pending evaluation file and kept solely for the purposes of aiding in recollection to ensure accuracy in the preparation of the annual evaluation does not trigger a separate due process requirement. In the alternative, we could add “Photographic” or ‘Eidetic” memory to the list of qualifications required for supervisors, if our only alternatives are to prepare evaluations solely from memory or increase our file cabinet budget because of the size our personnel files will need to be now to accommodate the additional documentation the Poole decision may end up requiring be maintained in the personnel file, in addition to the evaluation document that essentially summarizes the same.

 

Welcome back to the new school year!

 

Former CalPERS chief admits to receiving $200,000 in bribes in paper bag, shoebox

Posted on July 11, 2014 at 10:20 AM Comments comments (1518)

Wow! Just another example of why we should never say "I've heard it all!"

 

Notwithstanding that crime itself, I find a couple of things interesting here. First, I did have to laugh when I read that the payoff occurred at the Downtown Hyatt Sacramento. I hope it didn't coincide with a SSC workshop! Secondly, I also found it comical that the potential fines equal the amount he received in bribes. (If you believe that is all he received) Last, Buenrostro may have to forfeit part of his own PERS pension. Does anyone really believe that he doesn't have his "real" retirement fund in another shoe box somewhere???

 

Can we still say crime doesn't pay these days?

 

______________________________________________

 

 

By Dale Kasler

[email protected] By Dale Kasler The Sacramento Bee Last modified: 2014-07-11T20:02:34Z Published: Friday, Jul. 11, 2014

 

SAN FRANCISCO -- The first two payments were made in paper bags. The last installment came in a shoebox. The handoffs all came at a Sacramento hotel near the Capitol.

 

In a stunning admission covering years of corruption, the former chief executive of CalPERS said Friday he accepted $200,000 in cash, along with a series of other bribes, from a Lake Tahoe businessman who was attempting to influence billions of dollars in pension fund investment decisions.

 

Fred Buenrostro, who ran the nation’s largest public pension fund from 2002 to 2008, pleaded guilty in U.S. District Court to a charge of conspiracy to commit bribery and fraud. He has agreed to cooperate with federal prosecutors as they pursue charges against his longtime friend, Nevada businessman Alfred Villalobos, a former CalPERS board member.

 

Buenrostro, 64, admitted that Villalobos plied him with casino chips and a trip around the world, plus a high-paying job with his investment firm after leaving CalPERS. He also admitted working with Villalobos to create phony documents to ensure that Villalobos earned his multimillion-dollar fees representing a Wall Street private equity firm seeking CalPERS investments.

 

Most of those allegations had been aired publicly already. What was new Friday was the blockbuster admission that Buenrostro took $200,000 in cash from Villalobos. In his written plea agreement, Buenrostro said Villalobos paid him in three installments in 2007, “all of which was delivered directly to me in the Hyatt hotel in downtown Sacramento across from the Capitol.”

 

According to Buenrostro, Villalobos told him to be careful how he deposited the cash in order to avoid detection by banking authorities. “Villalobos told me to be sure to ‘shuffle’ the currency before making any deposit, as the bills were new and appeared to be in sequential order,” Buenrostro wrote.

 

Later, after he’d left CalPERS and the investigation into their relationship gained momentum, Buenrostro said he accepted an additional $50,000 from Villalobos, paid by check.

 

The former CEO’s guilty plea is the latest chapter in a corruption scandal that first surfaced in 2009 at the California Public Employees’ Retirement System. Documents showed that Villalobos, a former deputy mayor of Los Angeles, had earned $50 million helping his Wall Street clients win investments from CalPERS over several years.

 

“We condemn the misconduct and ethical breaches admitted today by Mr. Buenrostro,” CalPERS said in a prepared statement. “CalPERS looks forward to justice being served in this case and for the individuals involved to be held accountable for their actions.”

 

After years of denying any wrongdoing, Buenrostro faces up to five years in prison and a $250,000 fine when he’s sentenced Jan. 7, 2015. He remains free on bond.“

 

There is no question that the chickens have come home to roost for Mr. Buenrostro,” said his lawyer, William Portanova of Sacramento, after a brief court hearing. “He is starting a new chapter in his life. He is a 64-year-old man who is ready to tell all.” Buenrostro declined comment as he left the courtroom.

 

His old friend Villalobos will continue to fight charges filed in the case, said Villalobos’ defense attorney Bruce Funk.

 

“We don’t think there’s any truthful information (Buenrostro) could give that could affect Mr. Villalobos,” Funk said after the court hearing.

 

The criminal trial was supposed to begin earlier this week with jury selection. Instead, it has been postponed, probably until the fall. Villalobos, 70, is in poor health and wasn’t in court Friday. He listened to the proceedings by phone.

 

Buenrostro, in his plea agreement, admitted taking bribes large and small. He let Villalobos host and pay for his 2004 wedding at Lake Tahoe. Villalobos took Buenrostro and a CalPERS board member on a 2006 worldwide trip (The member isn’t identified in the plea agreement, but a state lawsuit filed in 2010 identified him as Charles Valdes, who has since left the board).

 

Villalobos paid for his rooms at two Tahoe casinos, Harveys and Harrah’s. And Villalobos delivered on a promise of a $25,000-a-month job for Buenrostro after the CEO left CalPERS in 2008. The job ended two years later, about the time Villalobos and his company filed for bankruptcy.

 

In 2005, Buenrostro said he watched Villalobos give casino chips to certain CalPERS board members and to Buenrostro’s wife. At the time, CalPERS was considering awarding a pharmacy contract to a health care company.

 

Buenrostro didn’t identify the company, and said the board members are no longer at CalPERS. In 2011, CalPERS fired a New Jersey drug-distributor, Medco Health Solutions, after it was revealed that Medco paid Villalobos about $4 million to help win a contract to supply pharmaceuticals to CalPERS members. The firm, which was later sold, paid a $2.7 million fine to settle a state investigation but didn’t admit any wrongdoing.

 

In addition, Buenrostro said he worked with Villalobos to “cover up the evidence of our corrupt relationship by concealing and destroying records.” In 2010, after he invoked his Fifth Amendment right against self-incrimination during questioning by Securities and Exchange Commission investigators, Buenrostro said he received a $50,000 check from Villalobos.

 

Buenrostro said the $50,000 was supposedly a loan, but Villalobos told him he probably wouldn’t have to repay it.

 

If Buenrostro had gone to trial and been convicted on all charges, he was facing up to 40 years in prison. The conspiracy charge to which he admitted carries a five-year maximum penalty. So far the prosecutors haven’t made any sentencing recommendation, but agreed to ask for a reduced sentence based on Buenrostro’s “truthful cooperation,” said his lawyer Portanova. U.S. District Judge Charles Breyer will sentence him.

 

The original indictment was fairly narrow. It focused mainly on a series of letters Buenrostro said he created on CalPERS stationery at Villalobos’ behest.

 

Villalobos’ most important client, Apollo Global Management, had demanded disclosure letters in which the pension fund said it realized that Villalobos would earn fees from Apollo if the firm got CalPERS investments. When he couldn’t get a CalPERS investment officer to sign a disclosure letter, Villalobos turned to Buenrostro, who put together the letters on the pension fund’s stationary, according to the plea agreement.

 

Buenrostro said no one at CalPERS saw the letters, which Villalobos then mailed to Apollo. The firm got $3 billion of CalPERS’ money in 2007 and 2008, and Villalobos earned fees of $14 million. Apollo has said it wasn’t aware of any wrongdoing.

 

An investigative report commissioned by CalPERS said it was unlikely that Villalobos and Buenrostro were able to steer investment dollars to Villalobos’ clients. But the report, by Washington, D.C., securities attorney Philip Khinda, said Villalobos’ clients probably charged CalPERS millions of dollars in extra investment-management fees to compensate for the money they paid Villalobos.

 

The guilty plea marked the latest chapter in the downfall of Buenrostro, a longtime state employee and former deputy director of the state Department of Personnel Administration who became CalPERS CEO in 2002.

 

Because of his guilty plea to a felony, Buenrostro could have to forfeit a portion of his CalPERS pension, said fund spokesman Brad Pacheco. The amount is to be determined, he said.

Did the Vergara decision go far enough? Author: Jackie McHaney

Posted on June 28, 2014 at 9:45 AM Comments comments (303)

Happy Friday and 4 of July,

Did the Vergara decision go far enough to ensure equal access to a quality education for all students and to elevate the standards for the teaching profession or too far? By now, Vergara is a name most of us are familiar with. It is a case of first impression in California. Specifically a California judge, for the first time found certain fundamental certificated employment protections (i.e., tenure, due process protections related to discipline and dismissals, and “last-in, first-out” in RIFs) to disproportionately hurt poor students and students of color and thus found them to be unconstitutional. Superior Court Judge Rolf Treu wrote in his ruling, citing a claim that an ineffective teacher costs a student $1.4 million in lost earnings over a lifetime. “The evidence is compelling. Indeed, it shocks the conscience,” wrote Judge Treu, setting the stage for what will undoubtedly be a heated conversation at local, state and national levels.

 

Unions will undoubtedly fall back on the arguments that teachers are just being used as a scapegoat and that the source of the failures, if any, is derived from a lack of sufficient funding of education in the first place and by factors out of their control in the family and community setting. Unions may also argue that if the 2-year tenure system is responsible for the approximately 3% of grossly ineffective teachers we have in our system, then it should also be credited with the 97% rate of success in recruiting and retaining effective teachers.

 

School districts will undoubtedly argue that teachers are not being made a scapegoat because the laws at issue really only protect a very small minority of teachers who are harming children and who should not be in the classroom – they will never come into play with the 97% remaining effective teachers. Schools will also undoubtedly argue that current teacher employment protections even though they affect only about 3% of the working force, create a serious quality gap and that current teacher employment protections and seniority rules tie the hands of administrators and prevent them from hiring, firing, and assigning staff in a manner that best meet student needs for a large number of students.

 

I know an attorney that testified as an expert witness in the case and he recently provided me with some information about the 2700 “unsatisfactory” performance cases that went before the CTC Panel and he opined that it is actually 400 times easier to get an attorney disbarred, than it is to fire a teacher for unsatisfactory job performance – (not take a teacher’s license away, which is what happens in a debarment process). It is believed that it is actually easier to get a death penalty conviction than it is to fire a teacher for unsatisfactory job performance. Of the 2700 cases analyzed, in those instances where school districts did in fact do 2-4 years of documentation and remediation efforts and could document continuing problems still existing, only 62% of the time were school districts successful at removing the teacher from employment.

 

Although at first glance it may appear that the ruling will have no immediate effect in California because the court stayed implementation of the decision pending the outcome of the appeals process, I believe we will see the impacts long before the appeals process is exhausted. I would expect to see political and legislative activity in California and elsewhere on this issue. I strongly suspect that unions will seek a legislative solution that causes the least harm to the current statutory scheme rather than wait for the appeals process. We saw this happen in the LAUSD case in which the Superior Court judge ruled that student performance should be a part of a teacher evaluation and gave the parties time to work out what this would look like, or the court would rule and the parties would be left with the remedied fashioned by the court. LAUSD’s teachers union decided to negotiate in student performance as a factor in the evaluation process. Although opponents of the decision understand that if the appellate court reverses the decision, the statutes will remain in effect. They are also equally aware that if the appellate court concurs, there is no guarantee that these laws will be replaced by anything better for them. Tenure could be eliminated and layoffs could be left entirely to the discretion of principals. It is the unknown that will drive a legislative conversation in the near future.

Will the Vergara decision improve education in the classroom for all students? It is simply premature to tell.

Enjoy your holiday!

Jackie