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    “Operational independence” status report

    Over the course of the past year, the Ohio Department of Education’s Office of Community Schools (ODE) has pursued an initiative aimed, first, at assessing the degree to which conversion community schools share resources with their sponsor school districts and, second, at eliminating, or at least reducing the extent of, such collaborations. The purpose of this article is to summarize where things presently stand.

    Background

    As we discussed in our earlier publications on this topic, ODE initially asserted that it opposed community school/sponsor district collaboration on the ground that it violated state and federal laws regarding community schools. ODE variously cited to section 3314.01 of the Ohio Revised Code, federal non-regulatory guidance regarding the award of federal grants, and a monitoring report prepared by a private entity for the federal government concerning those grants. Upon review, it appeared to us that not one of these authorities actually supported the conversion school/sponsor district separation principle espoused by ODE.

    Earlier this year, ODE also objected to the provision of services to a conversion school by staff of the sponsor district based on prohibitions concerning incompatibility of office and conflict of interest. In a letter dated February 11, 2010, ODE asked Ohio’s Attorney General to issue an opinion regarding overlap between community school and school district board members, treasurers, and superintendents. We submitted to the Attorney General a letter in which we analyzed two of the five questions posed by ODE. Specifically, we looked at school district treasurers and superintendents who, in their official capacities (as employees of, and as directed by, the district’s board of education) provide services to a district sponsored conversion school. We concluded that in these circumstances there is no conflict of interest or other incompatibility. (We did not address the other situations about which ODE inquired, involving overlapping board membership or direct employment of a treasurer or superintendent by both a sponsor school district and the sponsored conversion school).

    ODE subsequently posed the same questions to the Ohio Ethics Commission, additionally asking whether sponsor school district employees may serve on the boards of sponsored community schools. We provided to the Ethics Commission a copy of our letter to the Attorney General.

    What is the current status of this controversy?

    We are currently in a holding pattern with respect to the questions referred by ODE to the Attorney General and the Ethics Commission. However, as we await their respective Opinions, it is important to note that those Opinions may not be dispositive of the issues facing individual schools. The reasons for this are twofold.

    First, even if the Attorney General and the Ethics Commission find no impropriety in the relationships questioned by ODE, ODE has indicated that it may not accept “yes” for an answer. Instead, ODE may then put the same questions to federal regulators, asking whether they have any objections to these relationships. The time frame in which federal regulators might respond to such an inquiry is uncertain.

    Second, even if the Attorney General or the Ethics Commission identifies an impropriety in the circumstances describes by ODE, the significance for the personnel of a particular community school or school district may be uncertain. This is because the Attorney General and the Ethics Commission typically limit their analyses to the hypothetical questions before them as opposed to analyzing actual, existing situations where the specific facts may yield a different answer.

    Additionally, an Opinion of the Attorney General is just that: an opinion. As such, it may carry considerable weight to the extent that it is well reasoned, but it does not carry the force of law in and of itself, and courts are not bound by them. Sometimes courts defer to conclusions reached by the Attorney General; other times courts do not. Sometimes Opinions are overturned by later Opinions of the Office of the Attorney General itself.

    There is little authority addressing the legal significance of an Opinion of the Ethics Commission. However, the status of these Opinions would appear to be similar to those of the Attorney General, except that to the extent that such an Opinion finds no violation of the ethics laws, the individual to whom the Opinion was directed (or anyone in similar circumstances) may rely upon the Opinion and thereby be protected from certain consequences of those laws.

    How are conversion schools and sponsors responding to current conditions?

    This past spring, ODE tempered its prior insistence on complete “operational independence” between conversion schools and sponsors, essentially permitting exceptions for cause. This, together with modifications implemented by conversion schools and sponsors, has enabled many schools to meet ODE’s present standards of “operational independence.”

    However, the treasurer and superintendent questions raised by ODE remain outstanding. And for many schools, these questions have the potential to tip the balance, forcing the schools into closure. This is because these schools do not believe they can afford to remain open if compelled to acquire administrative and fiscal services from sources other than their sponsor districts.

    With the opening of the 2010–11 school year approaching, these schools are in a very difficult position. Each must decide for itself how to proceed in this uncertain environment.

    Although ODE may eventually temper its opposition to shared treasurers and administrators, some schools may not survive long enough for this to be of help. Some schools have already closed or are in the process of closing, having determined that they cannot continue to operate effectively with ODE’s Sword of Damocles hanging over their heads. In some cases, the sponsor district is seeking to incorporate into its own schools all or a part of the program of the former community school. Whether the district can entirely fill the void left by the closure of the community school remains to be seen.

    In other cases, conversion schools and sponsors are committed to exploring every possible option for preserving the school, even if this means incurring significant new costs that divert resources from the education of the students. Conversion schools committed to remaining open tend to be larger schools or ones that are perceived as irreplaceable due to the unique populations they serve. Some enroll students who previously dropped out of the district and who are considered unlikely to re-enroll in the district (or anywhere else) if the community school closes. Ultimately, these schools, too, may need to close. But for now, they continue to look for ways of remaining in operation.

    What next?

    Although the regulatory environment remains in flux in ways that are not predictable, conversion community schools clearly have a right to exist.

    If yours is a school that is seeking to remain viable, we urge you to monitor announcements from ODE, the Ohio Attorney General, the Ethics Commission, and others. You may want to have contingency plans at the ready so that you are in a position to respond as more becomes known. For example, you might explore your options with respect to acquiring administrative and fiscal services from other sources, such as another school district, another community school, or an existing council of governments or other educational association (or a new one created for this purpose). Sponsors might consider trading services with another district so that district A provides services to the conversion community school sponsored by district B and vice versa.

    It may be the case that no substitute strategy will produce the kinds of efficiencies achieved through conversion school/sponsor district collaboration. But it is prudent to think through the options now so that you are in a position to act quickly should the need arise.

    The Bigger Picture

    Finally, there may be ways in which conversion schools and sponsors can help shape events rather than just responding to them.

    Of particular note, a subcommittee of the Ohio School Funding Advisory Council was created last year (by H.B. 1) entitled “Traditional Public/Community School Collaboration.” The subcommittee, which intends to issue its recommendations by September 1, is charged with making the following recommendations:

    (1) recommendations to foster collaboration between school districts and community schools

    (2) recommendations for fiscal strategies, including changes to the funding model that will provide incentives and compensation for Ohio school districts and community schools to enter into collaborative agreements

    The “operational independence” positions asserted by ODE’s Office of Community Schools appear to be at odds with the intent of the General Assembly as reflected in the establishment of this Subcommittee (and in other statutory enactments, including those aimed at maximizing the range of student options within the public school system). Additionally, we are unaware of anything that would indicate the State Board of Education affirmatively endorses the positions of the Office of Community Schools on these issues.

    This may be an opportune time to communicate with members of the Subcommittee about the kinds of collaborations that are important to your conversion school and sponsor district. You might also consider communicating with state board members, legislators or others who may be in a position to help confirm and support the legality of such collaborations.

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