Shawn Williams, Director
Public Records Division
One Ashburton Place, 17th Floor
Boston, MA 02108
Dear Mr. Williams,
I wish to once again appeal the decision of the Amherst Regional Public Schools to stonewall my public documents request for legal settlements that have cost Amherst taxpayers hundreds of thousands of dollars.
As you may remember your office sided with me last year on a previous complaint regarding ARPS settlement agreements with terminated employees totaling over $200,000. The schools continue to refuse releasing those documents.
Now I wish to appeal the 2/26/13 decision of Rob Detweiler, Director of Finance and Operations, to withhold settlement agreements totalling $229,300 from recent "Special Education" legal cases.
Obviously I understand certain information -- names of students for instance -- should be redacted to protect privacy, but certainly with that much settlement money involved the taxpayers have a right to know how many cases it represents and the details of those cases.
Even if the money was paid by an insurance carrier a Hampshire Superior Court judge found the settlement agreement between the Phoebe Prince family and South Hadley Schools were still a pubic document even though the $225,000 payout came from liability insurance.
Your office has also repeatedly stuck down the concept of "non disclosure agreements" citing Washington Post ., 690 F. 2d at 263 ( a government agency cannot circumvent the Federal Freedom of Information Act with a private agreement).
Please remind the Amherst Regional Public Schools that the general public has a right to know.
Sincerly,
Larry J. Kelley
25 comments:
Good job Larry. The few people like you are important because in this passive-aggressive, complacent town, everything is hidden behind closed doors with the appearance that all is good and being done in the best interest of the kids, and the rest of the town.
Clearly all one needs to do is look at the last two pages of your posts to see that this town is run like crap, by gutless people who can't even vote on flying flags because of fear they'd be hurting someone.
And how do you know that you are doing the right thing? When the nameless loser(s) who(m) post here complain about you, not what you do, but about you, then you know you've hit the nerve.
Any coward who will complain and not identify themselves, and then never offer any facts as rebuttle, rather simply try to throw darts at you to deflect your information is nothing you need to even respond to. They are the definition of anonymous, having no distinctive character or recognition factor. So ignore these fools and keep up your work. The foundations of real journalism in this country came from men and women who do exactly what you do.
And it's guys like us that make changes, not the masses as anyone who studies history will tell you, all revolution comes from the minority, never the majority.
Keep up the good work.
Signed,
Walter Graff
Thanks Walter. I have not yet begun to fight (even after 30 years).
I have a larger question -- if the three cases that the ARSD "won" can be posted on-line, then why aren't the cases that they have "lost" also posted?
If these "settlements" involve disputes that have gone to where a lawsuit has actually been filed in court, then while the plaintiff's name may be redacted (e.g. Roe v. Wade, the suit and the relief sought ought to be public record.
Furthermore, the tort claims act requires that prior to suing a public entity, one must send the Attorney General a letter outlining the claim that you have that will be the grounds for the lawsuit (e.g. the AHA not paying me 3 month's worth of wages). A copy of these letters are sent to the actual municipal entity, in this case the Maria G Fan Club.
I believe that when a SPED dispute gets to court, it is a request for money to pay for the child to be educated elsewhere not under the school's control. It would stand to reason that "settlements" -- generally considered to be the civil suit's version of a plea bargain -- would be a payment to satisfy the claim and get the lawsuit dropped.
While you can't require them to compile statistics, only to release the ones they have compiled, I would highly doubt that they haven't. And thus you might want to request "all statistics on the types of disabilities, the DSM classifications thereof where relevant, and any other information of a similar nature."
In each of the specific lawsuits, the relevant disabilities ought to be public record. In the settlements, the disabilities ought to be as well.
I suggest investigating this for a reason -- SPED is as broad a category as "woman" -- and if the legal fee and legal "settlement" expenses for an unspecified "sex discrimination" category were this big, we would be asking for specific details.
"Sex Discrimination" can include everything from sexual harassment to maternity leave, and if there were a lot of suits, we would very much want to know if they were for the same type of thing, and particularly if it was the same person repeatedly doing it.
Amherst could have an otherwise-exemplary SPED program with one weakness in just one disability and collect a lot of lawsuits, as could one bad person or one structural flaw that no one is noticing the cumulative effect of.
My hunch, nothing but a hunch, is that Amherst has the structural weakness of arrogance, and can not deal with parents who challenge the initially proposed IEP. That instead of negotiating, as it should, it stonewalls.
But I may be wrong and it may instead be one specific special need that is falling through the cracks here -- and it is a legitimate need if it is getting to the point of legal settlements -- or these settlements shouldn't be being made.
I have a larger question -- if the three cases that the ARSD "won" can be posted on-line, then why aren't the cases that they have "lost" also posted?
If these "settlements" involve disputes that have gone to where a lawsuit has actually been filed in court, then while the plaintiff's name may be redacted (e.g. Roe v. Wade, the suit and the relief sought ought to be public record.
Furthermore, the tort claims act requires that prior to suing a public entity, one must send the Attorney General a letter outlining the claim that you have that will be the grounds for the lawsuit (e.g. the AHA not paying me 3 month's worth of wages). A copy of these letters are sent to the actual municipal entity, in this case the Maria G Fan Club.
I believe that when a SPED dispute gets to court, it is a request for money to pay for the child to be educated elsewhere not under the school's control. It would stand to reason that "settlements" -- generally considered to be the civil suit's version of a plea bargain -- would be a payment to satisfy the claim and get the lawsuit dropped.
While you can't require them to compile statistics, only to release the ones they have compiled, I would highly doubt that they haven't. And thus you might want to request "all statistics on the types of disabilities, the DSM classifications thereof where relevant, and any other information of a similar nature."
In each of the specific lawsuits, the relevant disabilities ought to be public record. In the settlements, the disabilities ought to be as well.
I suggest investigating this for a reason -- SPED is as broad a category as "woman" -- and if the legal fee and legal "settlement" expenses for an unspecified "sex discrimination" category were this big, we would be asking for specific details.
"Sex Discrimination" can include everything from sexual harassment to maternity leave, and if there were a lot of suits, we would very much want to know if they were for the same type of thing, and particularly if it was the same person repeatedly doing it.
Amherst could have an otherwise-exemplary SPED program with one weakness in just one disability and collect a lot of lawsuits, as could one bad person or one structural flaw that no one is noticing the cumulative effect of.
My hunch, nothing but a hunch, is that Amherst has the structural weakness of arrogance, and can not deal with parents who challenge the initially proposed IEP. That instead of negotiating, as it should, it stonewalls.
But I may be wrong and it may instead be one specific special need that is falling through the cracks here -- and it is a legitimate need if it is getting to the point of legal settlements -- or these settlements shouldn't be being made.
Thank you for pursuing this, Larry. When I saw Rob Detweiler mention those extra six figures worth of legal costs at a school committee meeting, I almost fell out of my chair. That is a lot of money and it is appropriate for the district to offer a more detailed explanation of these expenses.
Speaking of SPED-related expenses, I can't help but think about SPED services and costs in the context of the proposed regionalization of the elementary schools. Do the other towns send many kids of district for SPED needs -- I don't have the exact figures but don't believe so -- and if the Amherst elementary schools are combined into a region with the Pelham, Leverett, and Shutesbury schools, will this lead to an increase in costly out-of-district placements? If so, it could significantly erode the promised cost savings of regionalization (not the any of the presented fiscal models show Amherst savings any $ with regionalization in the first place; the primary savings is to the other towns and the four-town region as a whole).
anon@732:
you are right, reading the report on regionalization it isn't at all clear that Amherst would save any money and could end up paying (yet again more) which would be ironic as Amherst has by far the largest number of kids in the system from low income families. So you gotta ask why is anyone in Amherst pushing for regionalization?? Just so we could pay more (or at least not less) and have a significant cut in control??
AMHERST has the significant cut on control???? Really? Its the hilltowns who will have a significant cut in control.
On an regional school committee with regionalization, Amherst is always going to have the most votes by far. The hilltowns would be in a minority position for ever more. Except for the possible cost savings, it's hard to see why Leverett or Shutesbury would support elementary school regionalization.
As to a regional 4-town district, because Amherst is so much bigger than the other three towns, there is really no way to give the other three towns any effective voice without both screwing Amherst and violating the "one man, one vote" mandate of Baker v. Carr -- each citizen's vote must have the same weight.
Remember that there are more people in just three of the UM Southwest Towers than all of Pelham -- and that the UM on-campus students are counted as part of the "population" of Amherst, and that this "population" number is used in any representative apportionment calculation.
Lets hypothetically assume that these were the populations -- I am using these numbers to keep the math simple & to make a point, I know these are not the real population numbers.
Amherst: 27,000
Pelham: 1,000
Shutesbury: 1,000
Leverett: 1,000
One way to do this is the way that the US House of Representatives is set up, and to have one seat for every 1,000 citizens (i.e. drop the three zeros above) and you can see how Amherst would need to be given 27 seats on a 30 member board. But a board that large is unworkable so you reduce it by 2/3 to a ten member board and get this:
Amherst: 9 members
Pelham: 1/3 of 1 member
Leverett: 1/3 of 1 member
Shutesbury: 1/3 of 1 member
And as to the budget, a "majority rule" system inherently means that Amherst Town Meeting has the sole power to approve or reject it, with the other three towns having no say at all. They would be damn fools to agree to a regional district like this and would insist on something designed along the lines of the US Senate where each town gets, say, 3 seats each on a 12 member board.
To keep the math simple, let's drop the population of the other three towns from 1000 to 750 -- I want round numbers to make a point:
This results in the following:
9,000 Amherst citizens per SC member
250 Pelham citizens per SC member
250 Shutsbury citizens per SC member
250 Leverett citizens per SC member
The same sort of thing will happen if you use that actual populations of the four towns, except that you won't get round numbers. This is how Amherst is currently being screwed in the regional district -- there isn't equal representation between the citizens of each town.
This not only violates the "one man, one vote" mandate of the US Constitution, but as the majority of African-Americans are in Amherst, it serves to "dilute" Black votes -- and that is big-time illegal under the Voting Rights Act.
One other thing: I have it on good authority from someone who definitely is a credible source that all it would take is one Black Amherst resident writing a letter to the US Department of Justice and the existing regional school board would be thrown out by the Feds.
The current system "dilutes" Amherst votes, thus diluting Black votes, and that is big time illegal.
Larry --- one other thought on SPED.
I am sure you remember how structured the Catholic schools were, complete with the "blessing of the hour" and everything else. There are people starting to suggest that such structure is quite helpful and that it is the lack of such structure that has led to some of the SPED needs we have today -- in other words, that the children could have done well in a regular classroom with structure.
As we start evaluating SPED costs, maybe it would be worthwhile to also evaluate the regular classrooms and teacher effectiveness there.
Ed, I think that is what Mike Morris' position is, evaluating classroom teacher performance.
I love how commenters like Walter never respond to the ideas you offer or the criticisms you have, but only to their choice to not post their names on this poison blog.
Walter said: Clearly all one needs to do is look at the last two pages of your posts to see that this town is run like crap, by gutless people who can't even vote on flying flags because of fear they'd be hurting someone.
The select board DID vote on flying flags, and they stuck with their decision. What would have been gutless would have been to give into a chronic complainer like Larry Kelly, during a period of widespread albeit naive criticism.
The select board DID vote on flying flags, and they stuck with their decision. What would have been gutless would have been to give into a chronic complainer like Larry Kelly, during a period of widespread albeit naive criticis
No, they ought to have concluded that no one would be harmed by having the flags up, that this is a free country (or at least used to be) and simply told Larry that if he wanted the flags up, he had to pay te DPW overtime bill to do it.
Larry:
The district was sued in federal district court, case no. 3:12-cv-30124-KPN. Filed on July 12, 2012. On February 24, 2013, the plaintiff's attorney filed the following "by and through his attorney of record, moves to dismiss this matter, with prejudice In support of this motion, Plaintiff states that this matter has been resolved through a settlement agreement between C.C. and the Amherst-Pelham Regional School District. All Parties assent to this Motion and the dismissal of the present case.WHEREFORE, plaintiff requests that this action be dismissed with prejudice."
Plaintiff is a minor child.
PACER accounts are a marvelous tool!
case no. 3:12-cv-30124-KPN.
Understanding that they are merely plaintiff's allegations and neither necessarily factual nor found by a court to be so, what were the basis of this suit?
Some of us don't have a PACER account -- can a non-lawyer with a legitimate academic interest obtain one? How?
I ask because I genuinely want to know where the courts are going with disability law, both SPED/IDEA in K-12 and ADA in Higher Ed and I want to be able to document what I strongly suspect -- a situation similar to the Ford Pinto's exploding gas tanks. In that case, Ford realized that it would be cheaper to quietly pay damages to the families of the people who burned to death than to install an extra part to protect the gas tank.
We have cases like Jason Draper v. Atlanta Independent School System
See http://www.wrightslaw.com/law/art/draper.aps.comped.htm and http://www.wrightslaw.com/law/caselaw/08/11th.jdraper.atlanta.htm
but if my hunch that a lot of cases are being settled is true, then it becomes quite interesting what the initial allegations were.
I am really wondering if there is an approach of refuse everything and pay in the few cases where we get sued.
Ed:
Anyone can get a PACER account at www.pacer.gov A few years ago, the general public was able to view so many pages for free, but they might have changed that. The same records are free at the courthouse clerks office. Pro-se litigants, and academics get a break on the charges. Take a look at website, its a great resource. You're able to search by district as well.
Ed:
I'm speaking as a practicing plaintiff's attorney.
Its not a Ford Pinto deal that forces the settlement. Its the process of a long litigation with huge attorney fees and the liklihood that if successful, the fee shifting statutes will give the plaintiff and plaintiff's counsel a windfall.
Its a two part business decision. Hypothetically, assume the district has a insurance policy for situations like this (the actual complaint is under seal, as the plaintiff is a minor child, however, the answer contains information to fill in the blank.) The district is obligated to spend up to the deductable, and then the insurance company is on the hood for the remainder of the attorney's fees and possible verdict.
The district cannot settle everything that comes its way, there is no way it will allow itself to become an easy mark, and at some point, they become un-insurable.
I've been in several settlement conferences with a US magistrate judge involving an insurance company. What typically happens is their in-house counsel has analyzed the exposure and risk. If a settlement is agreed to, its based on sound reasoning, not so much as hiding, or sweeping it under the rug.
Earlier, you mentioned listing the disability (specific?) in the settlement document. That never happens. Due to FOI, defendant counsel will draft an agreement that is legally sufficient to end the dispute, and nothing more. Listing the specific disability would be viewed as an admission of of engaging in prohibitive conduct. Both sides realize this and thus will not state more than is required.
Because the actual plaintiff is a minor child, all sorts of legal protections are in play as well. There may be a prohibition on listing the alleged disability in the document as well.
Its not a Ford Pinto deal that forces the settlement.
That was perhaps a bad example of the point I was trying to make. A better one -- and a true story -- involved a health inspector (me) trying to get a restaurant owner to install the required 10BC fire extinguisher, a $10 item.
He had a Fryolator but neither a range hood nor the automatic fire system -- just this vat of hot oil and while I don't know how much good a 10BC would have done, it was all the code required at the time.
He then pointed to the sprinkler head directly over the Fryolator that I had somehow managed to miss (OK, it never occurred to me that someone would actually put on there). My jaw dropped and I said "but what do you think is going to happen to anyone standing here when all that cold water goes spraying into that really hot oil?"
"I don't work here" he nonchalantly responded. "But what about the people who do?" I responded.
"That's why I have worker's comp" he coldly concluded.
Its the process of a long litigation with huge attorney fees and the liklihood that if successful, the fee shifting statutes will give the plaintiff and plaintiff's counsel a windfall.
But doesn't the 11th Amendment, Sovereign Immunity and the limits of the State Tort Claims Act come in here?
In general, of those with grounds to sue you, only a few are going to even get an attorney and "make some noise" -- and of those, only a few are actually going to file a lawsuit, which you then might be able to get dismissed on procedural or technical grounds. But as you point out, the potential of a "windfall" in the few instances that go beyond this is enough to influence business decisions all the way back to the initial liability.
The attitude I have heard expressed at UMass is that with the $100K limit of the tort claims act, there is no potential of the "windfall" and thus not only is there not the exposure to this but there is far less incentive for anyone to go through the effort & expense of suing in the first place.
Is a school district somehow a different legal entity than UMass?
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The district cannot settle everything that comes its way, there is no way it will allow itself to become an easy mark, and at some point, they become un-insurable.
I would argue that the district ought not have to settle any of them -- that if it was doing things the way it ought to, any claim would be frivolous and without merit. This is what bothers me as an educator -- why isn't the district doing what it is supposed to do in the first place?
Due to FOI, defendant counsel will draft an agreement that is legally sufficient to end the dispute, and nothing more.
Yes, and some aspects of FERPA also likely come in here as well. And as a public policy matter where laws are defined by legal precedent, if the majority of cases are settled in this manner, there is no guiding precedent as to what is (or isn't) a FAPE. ("Free & Appropriate Public Education") And then you have that truly asinine Mt Holyoke decision from the Region 1 OCR and law which are supposed to be observed become totally irrelevant.
Ed:
Two points.
The state tort claims act normally applies to state law claims, i.e. a tort action in superior court. Here, the minor sued in federal court, and jurisdiction was conferred under a federal statute. The federal statute preempts MA state law. So throw the limit out of the window if it is conflict with the federal statute.
Second, in regards to settlement strategies, the district defends all suits at the outset. The decision to settle is made later in the case for obvious reasons. With frivolous or garbage suits, they can offer nuisance value to go away, or in many cases, can have the case dismissed at the early stages.
The state tort claims act normally applies to state law claims, i.e. a tort action in superior court. Here, the minor sued in federal court, and jurisdiction was conferred under a federal statute. The federal statute preempts MA state law. So throw the limit out of the window if it is conflict with the federal statute.
Hmmmm.... So this would also include anything brought under 46 USC 1983 ("violation of civil rights under color of law") in addition to anything brought under IDEA, Section 504, or ADA, wouldn't it?
Very interesting. VERY interesting....
Easy there, Eddie boy! Or people may start (continue?) to wonder whether dreams of revenge and comeuppance are literal masturbatory fantasies for you. (Now I understand where the "grunt" in disgruntled comes from...)
Easy there, Eddie boy! Or people may start (continue?) to wonder whether dreams of revenge and comeuppance are literal masturbatory fantasies for you. (Now I understand where the "grunt" in disgruntled comes from...)
S___ my ____.
As there may be children reading this, I am exercising discretion, and those who know me personally know that I don't use language like the above lightly.
I put up with an awful lot of grief from that institution for an awfully long time and let me explain part of what started it.
A professor and a student were at least very close if not sleeping together. Unknown to me, not only was the School of Education aware of this, but the Graduate School was as well. There were a lot of concerns but no one did anything as the young lady's mental health deteriorated that spring.
While I now know *how* I can do it, I always have known that I can answer the phone in my sleep, and either wake up or not depending on if I think it is an emergency or not.
She calls me at 3AM on a pretext, and I realize that there is a reason why I am wide awake, that there was something in this situation that I didn't like the sound of. And then I realize what it was, and those who know this story know what it was.
Well, Ed acted. There was an emergency departmental faculty meeting later that morning, at something like 8:30AM, and I was subsequently told that "strong words were exchanged" and that the situation had been "resolved." And it had -- the young lady graduated and last I heard is a successful mid-career professional.
But whom do you think the faculty blamed for having to come in for that 8:30 AM meeting? Yes....
From the Bulletin:
Amherst
Eric S. Einhorn is the president of Echo Hill South Association.
Ideas for school
budget cuts suggested
To the Bulletin:
To fill the School District’s budget gap without affecting direct services the Amherst SC should consider:
• requiring summer furloughs for administrators not directly involved with student services;
• requiring administrators to teach classes, coach teams or otherwise participate in the provision of direct services;
• making sports intramural rather than interscholastic to eliminate transportation costs, or cutting altogether sports that are simply too expensive;
• trimming administrative staff by 25 percent through attrition over the next five years.
Creative application of a combination of these measures would likely fill much of the budget gap without degrading essential educational resources available to students.
Michael Aronson
Amherst
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