Following is the full text of state Education Commission Mitchell D. Chester's written response of Jan. 6 to the report of Inspector General Gergory Sullivan regarding his, the Department of Elementary and Secondary Education's handling of the application for the Gloucester Commuinity Arts Charter School.
This letter/statemeny was addressed to Gov. Deval Patrick, Senate President Therese Murray, House Speaker Robert DeLeo, Senate Education Chair Robert O'Leary, House Education Chair Marty Walz, Sen. Bruce Tarr, Rep. Ann-Margaret Ferrante, and Inspector General Gregory Sullivan.
We have received the Inspector General's January 5 report on the process of the Board of Elementary and Secondary Education (BESE) and the Department of Elementary and Secondary Education (DESE) that resulted in the grant of a charter to the Gloucester Community Arts Charter School (GCACS).
We are continuing to review it with an eye toward working with the Board of Elementary and Secondary Education to implement any necessary enhancements to the process for evaluating new charter school applications. In the meantime, however, I want to address erroneous allegations in the (Inspector General's) report, including misstatements about document destruction and misunderstandings about the process for evaluating and awarding new charters.
The Gloucester charter application process has unfortunately been the subject of a long series of accusations, most of which have ultimately been shown to be without foundation. I feel it is important to note that most of the accusations originally made by the school's opponents were not mentioned in the Inspector General's report. Rather, he raises new accusations that I believe are similarly without merit.
We had offered to review a draft of the Inspector General's report for the purpose of identifying factual errors that could be corrected prior to the release of the final report, but unfortunately were not provided that opportunity. Therefore, to clarify the record created by the final report, we have identified the following errors and misstatements:
1. Erroneous allegations of improper document destruction and non-compliance with the public records law. (Pages 12-14 of the report.)
The Inspector General (IG) asserts erroneously that the DESE and its Charter School Office (CSO) disposed of and/or destroyed public records, specifically, "that DESE and CSO officials apparently implemented a policy of disposing of virtually all documents containing the written records of individual DESE and CSO evaluators in determining whether the GCACS charter school application had met the criteria of the final charter school application."
This finding is erroneous. The DESE and CSO long ago established a policy and practice of neither collecting nor retaining the "written records of individual DESE and CSO evaluators." This policy was applied to the GCACS charter as it is to all other application evaluations.
The individual review sheets are the panel members' personal notes that they bring to the review panel discussion. Panel members are not decision makers; they do not vote on the applications, score them or make recommendations about whether or not a charter should be granted. Panel members are asked to review the strengths and weaknesses of each application in relation to the criteria to identify questions that the CSO should ask applicant groups to address in the interviews. Panel members are more willing to advise us on the applications if they know their views will not be publicized and ascribed to them.
Indeed, the November 2008 CSO memorandum, provided to all "Final Application Reviewers" and from which the IG quotes extensively on page 15 of his Report, expressly states that "copies of both the final applications and the review sheets remain in your possession and are not returned to the (CSO)." These review sheets also are referred to by the IG as the "29-page rubric" at Page 15 of his report.
Even though the CSO does not collect or retain the reviewers' notes as reflected on the review sheets, the CSO captures the reviewers' impressions and reflections of the charter application during the review panel discussion. As described in the same November 2008 memorandum cited by the IG:
Review panels will convene to discuss the strengths and weaknesses of each of the applications and to identify specific questions for each founding group. We will keep a written record of the detailed discussion for each final application. Although the Charter School Office will not collect the review sheets for final applications I urge you to fill out each review sheet carefully and thoroughly so that review panel discussions remain closely tied to the specific criteria for review and grounded in evidence from each final application. [Emphasis added.]
This is a well established policy in state and federal agencies; reviewers commonly understand that their personal notes are not part of the official record. The individual panel members' review sheets are their personal notes, not subject to the public records law. We have consistently followed this practice with every charter application.
The CSO's rationale for not collecting and retaining the reviewers' notes was further explained to the IG in the December 23, 2009 letter from Rhoda Schneider, General Counsel to DESE, to Barbara Hansberry, General Counsel to the OIG:
Panel members provide feedback on each charter proposal ... Panel members do not vote on the applications, score them, or make recommendations on whether or not a school should be chartered. They are asked simply to identify, based on the criteria, what questions the Charter School Office should ask of the applicant group in the interview. For that reason, the Charter School Office does not collect or maintain the individual members' notes. The various questions that are raised by panel members are then compiled into the final list for the interview.
Ms. Schneider included with her letter to the OIG a copy of the notes that Ruth Hersh took on a laptop computer at the panel review meeting on Jan. 6, 2009 and the Draft Questions and Comments from Panel Review - Gloucester Community Arts Charter School that Ruth Hersh prepared shortly after Jan. 6, 2009 - i.e., the public record of the review panel meeting. In addition, she sent to the OIG the individual review notes of one final application reviewer, a staff member who happened to keep his notes.
Finally, I want to address the IG's contention that the CSO's policy of not retaining reviewer notes violates the public records law. Exemption (e) to the public records law allows the withholding of "notebooks and other materials prepared...which are personal...and not maintained as part of the files of the governmental unit." In this and every other instance of final application evaluation, the review notes are personal to the reviewers and not maintained by DESE or the CSO. As such, the review notes - even if they were maintained by the DESE or CSO - would not be subject to the public records law.
In short, our practice of not collecting or retaining the individual review sheets is entirely consistent with state laws on public records and records retention and common practice in other federal and state agencies. In fact, even in the highly regulated state system of contract procurement, individual reviewers' notes are not required to be retained by the agency. The written record of the panel discussion is a public record and is retained by the CSO, which uses it to prepare questions for the interview with the applicant group. The DESE cooperated fully with the IG and provided the written record of the panel discussion to his office.
2. Erroneous allegations about the roles and responsibilities of the Commissioner and the CSO.
* Page 7, first full paragraph - The IG asserts erroneously that the Commissioner failed to follow a rule that says he "will not recommend that the Board award charters to applicant groups whose applications do not meet the stated criteria in the application, as corroborated in the final interview of the applicant group by the Charter School Office." The "rule" to which the IG refers is not a rule, regulation or a statute, nor was it established by the BESE. The IG is referring to a Q&A guidance document on the DESE's website, which lays out the charter school application process, and affirms that the judgment lies with the commissioner. It makes clear that the commissioner recommends to the BESE only those charter applicants whose applications meet the criteria found in Appendix H. The commissioner's recommendation is informed by the application and the analysis by the CSO as corroborated in the final interview. It says that the CSO conducts the interview, not that the CSO makes the final determination. There is no requirement that the application must meet each of the 103 criteria; substantial compliance is the rule of reason.
In this case, I reviewed the application and the summary material prepared by the CSO, which reflected the final interview of the applicant group by the CSO. I reviewed the application and the strengths and weaknesses that the CSO identified in its evaluation in relation to the criteria, and had several discussions with the CSO director and associate commissioner. Based on my review and deliberation, I exercised reasonable judgment as commissioner that the application should be recommended to the BESE. Consistent with
the statute, the charter school regulations make clear that the DESE (headed by the commissioner) reviews charter applications, and the BESE makes the final decisions. The law does not give the CSO the final say on whether a charter application goes forward; rather it is left to the commissioner to exercise his best educational judgment on what to recommend to the BESE.
* Page 9 - The IG suggests that the commissioner's recommendation and the BESE's decision to grant the charter were flawed because I did not inform the BESE in February that the CSO had not recommended the Gloucester application. In hindsight, I wish I had informed the BESE that the CSO had advised "do not recommend." Nonetheless, the BESE expects me to exercise my educational judgment as commissioner in these matters after I review the application and the information that the staff has presented to me, which is what I did.
* Page 11, first full paragraph - The IG suggests that the commissioner "believes that he is justified in making a recommendation in favor of or opposed to the granting of a charter irrespective of whether the applicant meets all of the established criteria and irrespective of the CSO's conclusions." My recommendation of this charter was based on my review and discussion of the application and the summary material prepared by the CSO in relation to the established criteria. It is the job of the Commissioner to decide whether a charter school should be recommended to the BESE, and it is the BESE's prerogative to decide whether or not to grant the charter.
* Page 13, first paragraph - The IG asserts erroneously that the commissioner offered misleading testimony to the Joint Committee. I explained the process to the Joint Committee accurately and forthrightly. After my initial discussion with the CSO about the GCACS application, I had several further discussions about the application with Associate Commissioner Jeff Wulfson and Charter School Director Mary Street. Associate Commissioner Wulfson testified in his interview with the IG that he and I had several discussions about the merits of the Gloucester application, following the initial discussion with the Charter School Office. The IG's report omits this fact.
* Page 13-14 - The IG asserts erroneously that the commissioner had decided to recommend the GCACS charter application without further deliberation following receipt of the email from Secretary Reville. In my interview with the IG I testified that I purposely avoided committing to a decision in early February although I indicated that I considered the GCACS application to be the only one of the three that could merit my recommendation. Further, I made clear that if I were to recommend any charter, I would likely attach a fiscal trigger. I continued to deliberate the merits of the application and the incorporation of a fiscal trigger with Associate Commissioner Wulfson and others during the time period between the email and my recommendation to the BESE.
3. Erroneous allegations about production of documents.
* Page 15, second full paragraph - The IG asserts erroneously he did not receive any written record for the final application. In the first batch of documents sent to the IG on November 30, 2009, the DESE included all of the documents that constitute the written record of the final application, including the application itself, the questions resulting from the review panel discussion for the interview with the charter applicant, the summary of the public comments, the CSO's overall summary of the application's merits, and my memo to the BESE.
* Page 16, second full paragraph - The IG asserts erroneously that no records were produced by DESE or explanation provided about the missing records, following the IG's December 22 request. DESE General Counsel Schneider had two packages of documents delivered by courier to the Office of the IG, one on December 22 and the second on December 24, 2009. We have written confirmation that the documents sent on the 24th were received by the OIG but the report omits this fact.
* Page 16, fourth full paragraph - The IG asserts erroneously that DESE did not provide full information in response to a document request from Senator Tarr and Representative Ferrante. The request from Senator Tarr and Representative Ferrante went to the Executive Office of Education, not to DESE. The DESE sent all of the requested documents in DESE's possession to the EOE as requested so that EOE could transmit them, along with records in the possession of EOE, directly to the legislators, and the EOE did so.
* Page 16, fourth full paragraph - The IG refers erroneously to a "29-page summary document produced by CSO New Schools Development Coordinator Ruth Hersh." This is not a summary document; it is Ruth Hersh's own individual review sheet from her review of the GCACS application, including some notes from the panel discussion. Ruth Hersh happened to keep her individual review sheet even though that is not required (see #1, above), and she turned it over to the IG.
* Page 16, last full paragraph - The IG asserts erroneously that the DESE withheld relevant records from legislators and the OIG. No records were withheld. Further, the IG erroneously characterizes the commissioner's testimony to the Joint Committee as misleading. See discussion above.
As this detailed list of inaccuracies and erroneous statements makes clear, I emphatically challenge core conclusions that the Inspector General reaches in this report. In my 35 years in public education in four states, I have never encountered the opinion that the commissioner is bound by a recommendation of staff. Linking this assertion to a Q&A that is posted on DESE's website seems to be a weak basis for this conclusion. Moreover, as stated earlier, the charter school regulations make clear that the DESE, under the leadership of the commissioner, reviews charter applications and the BESE makes final decisions. The law does not give the CSO the final say.
The IG's conclusion that the commissioner never "reviewed the specific details of which criteria the CSO had found the GCACS not to have met or otherwise made a conclusion that GCACS had met those criteria" is also inaccurate. Further, as is discussed above, my testimony at the Joint Committee on Education hearing was accurate and forthright.
The characterization by the IG of "a policy of disposing of virtually all documents containing the written records" of evaluators rests on the longstanding practice of allowing individual evaluators to maintain private notes that are not subject to disclosure. This practice is widely employed, both in Massachusetts and nationally.
Lastly, the DESE was forthcoming with all information requests - providing the requested information directly or through the Executive Office of Education.
Massachusetts has a strong charter authorizing process and I credit its integrity to the staff who manage it. They are deeply committed to their work, believe in the promise of charter schools, and I have great respect for them. They have been troubled by the accusations in this report.
I recognize that the controversy surrounding GCACS, whether grounded in truth or not, has created a negative perception of our process. We need to see what lessons can be learned from this episode, and I hope we can do this as a Board in a deliberate and thoughtful manner.
I do not plan to make any changes for this year's application process, which is already well underway and nearing completion. After this year's cycle concludes, we will have the opportunity to discuss these issues further, in advance of the 2010-2011 application cycle, which begins in the spring. This will also allow us to implement any changes that may be required by the education reform bill currently pending in the Legislature.
As your commissioner, I remain committed to applying my professional judgment, grounded in what will best serve the students of the Commonwealth, to my work and to my dealings with the Board of Elementary and Secondary Education, General Court, and public.
— Mitchell D. Chester. Ed.D. Commissioner, January 6, 2010