Tuesday, July 9, 2013

Public Documents Runaround

(click to enlarge/read)      Public Records appeal response:  late and stingy

Well that only took four months, relatively quick by Public Documents standards -- at least when dealing with the Amherst Public Schools.  And as usual the grudging response is pretty anemic.  Downside for the taxpayers of having a $225/hour school attorney is they have an economic incentive to be obstinate with these simple requests. 

Attorney Regina W. Tate

From: Larry Kelley
To: pre <pre@sec.state.ma.us>; donald.white <donald.white@state.ma.us>
Sent: Sat, Mar 2, 2013 10:20 am
Subject: Public Records Appeal of Amherst Schools

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/Regional 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 obstinately continue refusing to release those documents.

Now I wish to appeal the 2/26/13 decision of Rob Detweiler, Director of Finance and Operations, to withhold settlement agreements totaling $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 struck 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.


Larry J. Kelley


Anonymous said...

Seems like Ms. Tate gave you all the info you asked for..the number of settlements, their dates and the amount of each one. What more do you need to see?

Larry Kelley said...

The actual legal agreements, which the town handed over to me when asked in a separate filing a couple years ago.

And that is exactly what the state told them to hand over in the previous case of school employees who had left after taking settlement agreements worth more than $5,000.

Anonymous said...

Holy Cow! Does this mean that a school employee was given $150,000 as a settlement? Or is the a SPED settlement?

Dr. Ed said...

W O W !!!!!

Damn right they don't want you to see the settlements because the $229,292.21 is only that particular line item -- the liability for that particular budget line in (I presume) FY-13 which was only the tip of the iceberg.

Question: Expenses are only line items in the fiscal year in which they are due, correct?

And everyone (town/school) is following the state's July 1/June 30 fiscal year which means that July 1, 2013 was the start of FY-14, correct?

Two hypothetical examples - and I emphasize that the numbers used are only to keep the math simple -- I'm trying to ask a question here:

First, let's say that Maria G was offered (and accepted) a 5-year contract wherein she would be paid $1 per year, and the contract started on July 1, 2013 and terminated on June 30, 2014.
She would be paid $1 in FY14, FY15, FY16, FY17 & FY18 -- she is entitled to a dollar in each of those years, and it is a very real liability of the district.

HOWEVER, only the dollar due in FY14 shows up as a liability in the current fiscal year. You know that there will be dollars due in future years, but in future years -- on that year's spreadsheet and not this year's.

Now let's say her contract is a dollar for the first four year and a million for the fifth -- that in FY18 you have a "new" expense of $999,999.00 when your Maria G salary line jumps from $1 to $1M. That's not going to show up in your current year budget because it is not a liability due in this fiscal year.

The only place it would show up -- maybe -- is in a statement of assets and liabilities but even then it may be possible to either obscure and/or "bury" it such a way that it doesn't even appear there.

Ed's point: you can encumber future years -- create liabilities due in future years -- and that won't show up in the current year's line item. (The state pension plan is a good example of this, but I digress...)

So - and yes, I'm basing this hypothetical on a landmark (real) SPED case out of Atlanta -- John Doe is Dyslexic but the school instead categorizes him as retarded and winds up loosing a major lawsuit. There is a big expense this year -- which would be on this year's SPED budget line, i.e. part of the $229,292.21, as well as the expense of sending him up to Landmark for the next five years.

The future years won't show up in this year's budget.

And then there's "cost shifting" -- a SPED settlement may require you to pay for certain things, but it doesn't require you to pay for them out of the SPED budget.

A lot of things can be creatively taken out of other budget line items and thus obscured.

Team Maria inevitably will let loose a fuselage of personal attacks on me -- that doesn't answer the question -- is the $229,292.21 only the tip of the iceberg? And if it isn't, then what the h*ll did Attorney Tate mean in her second paragraph?

Dr. Ed said...

Tate gave you all the info you asked for..the number of settlements, their dates and the amount of each one

No she didn't -- and I misread her letter which actually strengthens my argument.

She gave the amount due in FY-13. She neither gave the total due in future years from just these settlements nor did she explicitly state that there were no others.

She also only said that this was what was behind that specific line item -- leaving open the possibility of other expenses.

Anonymous said...

Maybe they don't understand what the attorney general said.

Larry Kelley said...

For what she charges per hour she should be able to interpret the AG.

Larry Kelley said...

Anon 11:41 AM

The $150,000 is a SPED settlement.

Interesting thing is it cost another $40,000 or so in legal bills to Ms. Tate to litigate that case and the person who beat her was NOT an attorney (a parent acting as own pro se lawyer).

Anonymous said...

Do you know for a fact that Ms. Tate litigated that matter Larry? Or was it the other SPED attorney we had for a short time, who I understand was totally ineffective.

Larry Kelley said...

Know it for a fact.

Anonymous said...

Thanks, Lar.

Anonymous said...

What does ineffective mean when the district just spent $190K on a case it lost? Isn't that ineffective?

Anonymous said...

This is actually an important gauge of how many Amherst tax payers have deep concerns over this matter. So far:

1) Larry Kelley

Larry Kelley said...

The 5 parents who had to sue the school system.

Anonymous said...

Folks, it isn't just Amherst taxpayers you need to worry about. Eventually -- it *is* coming -- there is going to be concern raised on both the State and Federal level about districts that loose a lot of SPED suits. Remember that a lot of SPED money comes from both entities, and he who holds the gold makes the rules...

The other thing to be aware of is that SPED and ADA litigation, on both the K-12 and higher ed levels, is not something where there currently are a lot of lawyers. But there ARE a lot of unemployed ones. And ....

Anonymous said...

I am assuming there are about 600 special education students in the local schools - it's around 20% of the student population, right? If my assumption is correct, 5 doesn't seem like an excess of litigation. The worst part is the possible loss of services that students need. In that regard, 5 can be a lot.

Anonymous said...

Just because the parents think the 5 students need cadillac services doesn't mean they really do need those services. Just because parents sue the schools to get services does not mean they should necessarily get what they are asking for.

Anonymous said...

Larry, what leads you to believe that the 5 parents who sued the schools share your concern over the timeliness of the fulfillment of your records request?

Has it occurred to you that maybe the 5 parents don't care about how quickly you get your information, or how the total number breaks down, and actually resent your publicizing the details of events they'd rather keep private?

Sometimes it seems like you intentionally try to change the subject you post about to deflect criticism, or maybe you actually forget what the subject of your post was.

Larry Kelley said...

Actually CAN, I never forget.

Anonymous said...

You can always tell when a poster gets under Larry's skin. He starts calling them a CAN. Sure sign ole Lar is annoyed at you.

Larry Kelley said...

Not in the least. Just doing what I always do: Telling it like it is.

Anonymous said...

Dear Mr. Kelly,

I know for a fact that your facts are incorrect in your posting at 2:34 yesterday.

For your information, settlement agreements are typically used to avoid litigation because of the costs and time invested. Therefore, it is unclear how the $150,000 is a result of litigation.

In addition if one did a little research on line of the cases against Amherst, one would see that no such court order or decision was made issuing such a payment in recent years.

It is baffling how a person with no special education legal experience or training has made the determination that he knows more than everyone else or even worse is willing to mislead others.

Also based upon your conclusions one has to wonder about your "source" and the agenda behind these posts and their involvement in litigation with Amherst.

Please ask hard questions but based them on accurate information before your begin your assault on school personnel and the attorney.

Margaret S.

Larry Kelley said...

If you knew your facts you would know how to spell my name.

Anonymous said...

It is most unfortunate that the only thing you could profer as a response is that I mispelled your name. My apologies.

Here's the research if you are interested in facts...


Anonymous said...

Thank you for the link. What a sad, sad story the third PDF tells! A 20 year old whose main educational goal is to be able to toilet without being prompted. And he has regressed compared to former years when he had more success in not soiling a diaper. It seems clear to me (a know-nothing) that is due to the fact that they show him a video in order to keep him on the toilet. He can't communicate, but now he is brought to the toilet every 15 minutes -- to watch a video!

Anonymous said...

So 5 parents didn't have to sue the school system after all...

But I knew that all along, I just wanted you to make yourself sound even more ignorant of the facts!

I'll bet the source is Angry Aaronson, the guy who garnered votes from less than 1% of the town's populace in his run for the SC...

Larry Kelley said...

Actually "Margaret S." that link brings you to "decisions" of the BSEA, not "settlements".

None of the five "settlements" in my article would show up there.

But you did give me the idea to now request all the money spent on lost "decisions" over the past few years.


Anonymous said...

Hello Mr. Kelley,

That is correct, the link brings you to decisions which reflects litigation outcomes and that settlements would not show up there. It appears you have the number of settlements and dollar figures from the attorney.

Interesting idea you pose about asking for all of the money spent on lost "decisions"; not sure how that would be obtained. You have the case decisions so you can see what the resulting outcomes and costs would look like.

Perhaps you missed my earlier point, I think you are wasting the tax payers money with your misguided requests to try to prove something.

Every district in Massachusetts and elsewhere deal with legal cases and settlements. That is a fact. Just spend some time on the website researching school districts and hearing decisions.

Ultimately, my hope is that the students get what they need. That should be the bottom line.

As you can see by the limited number of hearing cases from the list online over the last five five or more years, there is no "story" here.

Margaret S.

Larry Kelley said...

Actually Margaret, what is kind of interesting is a case that cost the town both as a "decision" of the BSEA and also had a "settlement" does not show up on the website at all.

Which makes me wonder how many more may be Missing In Action.

Anonymous said...

Private entities providing SPED services (tuition, transportation) should be mandated to provide services at reasonable cost.

Private school SPED placements are more beneficial to the schools coffers than to the child in need.

Dr. Ed said...

Private school SPED placements are more beneficial to the schools coffers than to the child in need.

My experience is that the benefits do not extend to the persons working at such schools. I've had a lot of students who were working at such places and they have shared with me both how little they personally are paid and their working conditions.

"Sunlight is the best disinfectant" and it starts with districts being willing to tell folks how much money is going to these outfits.