Where does California’s STEM workforce come from? Not US schools

California is the land of high tech innovation, but according to the San Francisco area based Mercury News, “Immigrants are 42 percent of California’s STEM workforce.”

If you have not kept up with education fad acronyms, STEM stands for science, technology, engineering and mathematics – in other words, all the “stuff” that high tech comes from. And, the San Francisco/Silicon Valley area is the techiest place in the country.

This has some very disturbing implications for K to 12 education in the US. How come such a high percentage of our nation’s STEM innovators don’t come from our own school systems? Why do our colleges and high tech industries have to search overseas to find employees with the math and science skills needed to get the work done?

And, when our current education system says it is all about increasing STEM preparedness and then goes and adopts less than world class standards like Common Core and the Next Generation Science Standards (which don’t even teach kids about electric circuits, for goodness sakes!), is it likely the low numbers of US native born citizens in STEM careers is likely to improve soon?

Electrocution Cartoon

By the way, in Singapore they start teaching electric circuits as early as preschool! Here, our education science folks don’t think electric circuits are worth coverage at any school level.

No wonder so many STEM folks in the US don’t come from here.

Much ado about “something”

COG2“Much ado about nothing.” This is how the attorney for the Cabinet for Health and Family Services described the issue before the Oldham Circuit Court in the appeal of an open records decision issued earlier this year.

He was less grandiloquent in his description of the issue when we unexpectedly met outside the courthouse. Responding to his expression of surprise at my attendance, I explained that I thought the issue before the court was an important one. He replied, “it’s stupid.”

And so it remains. The Cabinet for Health and Family Services learned nothing from past mistakes which resulted in the imposition of penalties, attorneys’ fees and costs in excess of $1 million  for willfully circumventing the open records law as well as a scathing rebuke from the Kentucky Court of Appeals. A culture of secrecy and an attitude of contempt, disdain and obstructionism toward the open records law persists.

What is the “stupid” issue about which “much ado” is being made?

It is the issue we discussed in an earlier post involving a legal challenge to an attorney general’s open records decision, 17-ORD-007. In that decision the attorney general deviated from the well-entrenched principle that an agency cannot place restrictions on the use of nonexempt public records when it discloses those records.

The requester, a public employee, asked for copies of statements written about her that resulted in a reprimand. The Cabinet released the records to the requester but admonished her that she “should not discuss it [sic] with anybody, in any form or fashion, outside of [her] supervisors.”

“It is difficult to conceive of a clearer, and more improper, restriction on secondary use of public records,” we wrote, than the cabinet’s admonition to the requester.

“It is even more difficult to conceive of a clearer, and more improper, assault on the public’s right to know,” we concluded, “than an attorney general’s open records decision that endorses agency action aimed at censoring the requester’s use of the open records disclosed to her.”

The July 21 hearing in the Oldham Circuit Court began with counsel for the requester’s cogent defense of his client’s, and any open records requester’s, right to use nonexempt public records for any purpose that is not prohibited by law. In support, he cited prior attorney general’s open records decisions that affirm that right by stating that nothing in the open records law “permits an agency to restrict a person to whom records have been released from reproducing those records or sharing them with others.” See, for example, 95-ORD-77.

Counsel for the cabinet credited the OAG staffer who wrote the decision with an examination of hundreds of open records decisions. How he made this assessment is unclear. What is clear is that if, in fact, the staffer examined hundreds of decisions, he missed the decisions that were directly on point.

In a remarkable display of obfuscation, counsel for the cabinet invoked the familiar words of the Bard of Avon, also characterizing the issue on appeal as little more than a matter of “academic” interest.

He constructed a strained argument based on the fact that the cabinet’s admonition on use of the records was issued when the records were disclosed to the requester and not as a condition of disclosure, waiving the banner of prior restraint. In addition, he strongly suggested that a public employee has fewer rights under the open records law than an ordinary citizen.

And of course there were the apologies — always the apologies for the cabinet’s poor choice of words, or, in other cases, delays in producing records, false denials about the existence of public records, etc.

He cited, or actually miscited, a case involving the Kentucky Lottery Corporation, which he identified as the Kentucky Retirement Systems, and a defamation claim failed by corporation employees when the corporation created defamatory records, placed them in a file in anticipation of an open records request and released them when it received the request.

And how is that case relevant? Talk about muddying the waters!

What is at stake? Nothing less than the right of an open records requester to freely use the records to which she is afforded access. What good is a public record if it cannot be made public?

To paraphrase the Bard in a quotation from Hamlet, “[Counsel for the cabinet] doth protest too much, methinks.”

 

 

 

 

Why are teens going to school so early?

Alison Ross, a top-notch education reporter at the Courier-Journal, raises a question in “Why are teens going to school so early? Research shows educators may need a wake-up call” that has interested me, too. Research has been accumulating for some time that shows the average teen’s bio clock isn’t well aligned to the standard school hours set by adults.

Ross goes through the pros and cons of making school hours more suitable for teens in considerable detail. Along the way, she points to research from the U.S. Centers for Disease Control and Prevention, the American Academy of Pediatrics and the American Medical Association among others that says the current school start time in many Kentucky high schools isn’t set properly for optimal teen functioning. In fact the early start hours might actually be downright harmful.

So, why isn’t our school system reacting to this research? Some reasons were offered to Ross, but it seems like this is mostly more about convenience for adults and resistance to any change rather than doing what is best for students. And, with some researchers like Kyla Wahlstrom, a senior research fellow at the University of Minnesota, declaring this is actually a public health crisis, it seems like more serious attention is needed though little seems to be happening.

So much for our schools being data-driven. Ditto for putting student needs first.

Bluegrass Beacon: Spray schemes with transparency disinfectant

BluegrassBeaconLogoEditor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

Privatization done right can be a boon for taxpayers and those dependent on government services.

Outsourcing medical care for veterans – an idea floated by President Drumpf – would very likely reduce wait time and improve the quality of care received by those who have served our nation.

It couldn’t get much worse.

Too many veterans have died or needlessly suffered while waiting in line because of the inept delivery of government-provided care.

Worse, there’s an inadequate level of urgency to fix the problem.

Such earnestness is likely to be more present if a private company whose reputation and future is on the line is charged with delivering the care.

There’s really not a strong case for claiming that government somehow delivers medical care, builds roads, lands planes or more effectively educates children than conscientious competent engineers and teachers in the private sector.

However, even the fact that private entities can, and often do, provide these products and services at lower costs and more effectively doesn’t eliminate government’s proper, if limited, role of ensuring sound contracts, proper oversight and responses to demands for accountability, including transparency related to the spending of taxpayer dollars.

Just because government may not be the best entity to deliver a service doesn’t negate or minimize the importance of ensuring such services get delivered and that citizens still have access to how their hard-earned tax dollars are spent.

Creators of Kentucky’s sunshine laws diligently sought to provide such protection and ensure that outsourced services relying heavily on taxpayer dollars were transparent by making private companies deriving at least 25 percent of their funds from state or local agencies subject to the open records law.

However, loopholes created during intervening years weakened the law, allowing private entities like the Utility Management Group (UMG) to take Pikeville’s Mountain Water District (MWD) and its ratepayers for a ride in recent years.

UMG played hide-and-seek with ratepayers’ dollars behind those amendments, which – for some untenable reason – exempted funds received for certain types of publicly bid goods and services as being subjected to the 25-percent rule.

It must be deemed unacceptable by all taxpayers and legislators that not only did UMG deny the MWD itself the cost of operating the district, it thumbed its collective nose at then-state Auditor Crit Luallen’s request for cost information.

Whether UMG is subject to Kentucky’s open records laws will be decided by the Kentucky Supreme Court, which heard arguments in February but has yet to rule.

Kentucky legislators should now decide once and for all that secretive, costly and questionable, if not outright corrupt, agencies like UMG – which gets most of their revenues from public sources – need more, not less, light.

Private companies must understand: if they want to use taxpayer dollars to do business with government, how they spend those dollars must be subject to public scrutiny.

Failing to provide such oversight led to a decision by the Legislative Ethics Commission to fine former Rep. Keith Hall, D-Phelps, after one of his companies won $171,000 in no-bid sewer line projects he voted to include in the state budget.

Hall was later convicted and imprisoned for bribing a mine inspector.

Rep. Chris Harris, D-Forest Hills, who defeated Hall in his re-election bid in 2014, has twice introduced bills to close the loopholes and spray the disinfectant of transparency all over these public-private schemes.

“Regardless of whether a contract is placed for bid or not, the public’s business should be open and available for inspection and review,” Harris replied in a text message seeking comment.

Could consistently ensuring such transparency be even better than a disinfectant? Could it also serve as a vaccine against future secretive, self-serving and corrupt arrangements?

Let’s find out.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at www.bipps.org. He can be reached at jwaters@freedomkentucky.com and @bipps on Twitter.

Barren County Progress publisher prevails in open records dispute

COG2The Bluegrass Institute’s Center for Open Government was pleased to provide assistance to Barren County Progress publisher, Jeff Jobe, in his recent successful open records appeal. The appeal originated in the Glasgow Electric Plant Board’s partial denial of Jobe’s request for records relating to the $7.4M SET Project sponsored by the TVA and implemented by the board.

Specifically, the board denied Jobe access to records identifying 350 property owners who participated in the project.

The board vigorously resisted disclosure of the records on the theory that its agreement with the TVA required it to maintain the confidentiality of the information. Its efforts to avoid the application of the open records law to these records included a letter to the program participants notifying them of Jobe’s “keen interest” in records implicating their personal privacy.

We assisted Jobe in distinguishing the authorities on which the board relied, in locating pertinent authorities and in responding to the board’s claim that already disclosed records satisfied the public interest in ensuring that it had properly discharged its duties.

Ultimately, we suggested that Jobe remind the board that “the fundamental purpose of the open records act is to enable the public to scrutinize agency claims of compliance through inspection of records that confirm or refute those claims rather than accepting the agency’s claims at face value.”

Our combined efforts yielded the desired result.

On July 13, the attorney general issued 17-ORD-135  in which he rejected the board’s position, adopted the arguments advanced by the Barren County Progress and affirmed the public’s right to know.

The open records law affords the Glasgow Electric Plant Board 30 days to appeal the attorney general’s open records decision to the Barren County Circuit Court. If the board chooses not to pursue this course of action before 30 days has elapsed, 17-ORD-135 will have the force and effect of law and bind the parties.

Bargaining away the public’s right to know

COG2Twice recently we have been reminded of the problems created when public agencies offer assurances of confidentiality in spite of their obligations under Kentucky’s open records law.

In the most recent case the attorney general concluded that a commitment made by the Glasgow Electric Plant Board to protect the identities of customers participating in a TVA financed project was unenforceable. The board has 30 days from the date on which 17-ORD-135 was issued to appeal the decision to circuit court.

In June the Kentucky Court of Appeals heard oral argument in the Purdue Pharma case.  The central issue there is whether a previous attorney general’s agreement with the pharmaceutical company to seal documents obtained in litigation arising from the company’s fraudulent marketing of OxyContin must yield to the public’s right to know. An opinion in that case is expected soon.

On July 18 the problem reemerged. Attending a meeting of the Frankfort Plant Board, I listened to the board’s discussion of the pros and cons of adopting a confidentiality policy presented to the board by Kentucky Municipal Energy Agency (KyMEA), a public agency created by interlocal agreement to “allow the 10 Member Municipal systems to obtain cost effective, reliable, and environmentally responsible resources.”

The board wisely rejected the policy.

Going forward, however, the board may be required to execute nondisclosure agreements to obtain “confidential” information maintained by KyMEA unless KyMEA can be persuaded that access to public records is governed by the open records law and, in the case of two public agencies, a provision of the law authorizing agency sharing of otherwise exempt public records if the exchange serves “a legitimate governmental need or is necessary in the performance of a legitimate government function.”

In each of these cases I was reminded of an early line of authority emanating from the attorney general’s office recognizing that “a public agency cannot abrogate the mandatory provisions of the Open Records Law by a promise of confidentiality which is not authorized by KRS 61.870 to 61.884.”

In other words, a public agency cannot bargain away the public’s right to know but can only “promise confidentiality as far as the permissive exemptions permit.”

Kentucky’s courts have weighed in on this issue as well.  In Central Kentucky News-Journal v. George Kentucky’s highest court rejected the argument that “a confidentiality agreement may impute, per se, a public record with a privacy claim superior to that of the public’s right of access,” concluding that such an agreement “cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act.”

The Court declared that “the people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to . . .  information than that it remain confidential.”

Of course the open records law recognizes a legitimate need for confidentiality in fourteen exemptions approved by Kentucky lawmakers and codified at KRS 61.878(1)(a) through (n). From the exemptions “we must conclude that with respect to certain records, the General Assembly has determined that the public’s right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality.”

It is these exemptions, and not promises of confidentiality, confidentiality agreements or confidentiality policies that are not grounded in these exemptions, that govern access to records in the custody of a public agency.

Thus, KRS 61.878(1)(a) protects records implicating an individual’s privacy rights when those rights are superior to the public’s right to know.  KRS 61.878(1)(c)(1) protects records confidentially disclosed to a public agency that are generally recognized as confidential or proprietary if open disclosure would permit an unfair commercial advantage to competitors of the entity that disclosed the records. KRS 61.878(1)(k) and (l) protect records made confidential by separate state or federal law.  And so forth.

Public agencies have no business offering assurances of confidentiality, entering into confidentiality agreements or adopting confidentiality policies that are not grounded in these and the remaining ten statutorily recognized exemptions. To continue to do so invites open records disputes and costly litigation at the expense of the public’s right to know.

 

 

 

 

 

 

Grade inflation: We’re not the only ones seeing it

In “A’s on the rise in U.S. report cards, but SAT scores founder,” USA Today reporter Greg Toppo discusses how trends in high school grades and SAT scores show grading in the country is getting inflated.

This isn’t news to us, of course. In fact, we talked back in February about research from the Kentucky Department of Education that shows grading is even getting unevenly biased according to students’ race.

This is why efforts in some places to drop ACT or SAT as part of the college entrance process continue to make no sense to us.

Jefferson County Public Schools denies Bluegrass Institute’s open meetings complaint

COG2On May 7 the Bluegrass Institute reported on an April 30 meeting of the Jefferson County Board of Education. Nothing especially newsworthy there except that the board conducted this meeting at a highly questionable time and place.

The meeting was conducted at 4:00 pm on a Sunday afternoon in the office of a private law firm located on the 28th floor of PNC Plaza, 500 W. Jefferson Street, in downtown Louisville instead of the board’s regular meeting site.

The stated reason for the unusual time and location? This was the only time all board members were available to meet and “the law office was used so as to not inconvenience district employees who would have to open a building on a weekend.”

The Kentucky open meetings law requires public agencies to conduct their meetings at “specified times and places which are convenient to the public.” The law makes no reference to the convenience of agency employees.

This is one of the objections we raised when we submitted an open meetings complaint to JCPS chairman Chris Brady on June 21.

Leaving aside the unusual decision to conduct the meeting on a Sunday afternoon – which might discourage some attendees — we alleged that the board’s April 30 meeting violated the open meetings law because the meeting was conducted at an inconvenient location. In support, we cited a 2016 open meetings decision issued by the attorney general’s office determining that a meeting conducted in a private residence was inconvenient to the public.

That open meetings decision, 16-OMD-178, was based on legal authorities dating back to 1949 recognizing that a public meeting must be held in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend.”

As a means of remedying the violation we proposed that the board acknowledge its violation of KRS 61.820(1) and agree to conduct all future meetings at times and places convenient to the public, namely its regular meeting site, unless the site does not provide adequate space, seating and acoustics.

JCPS denied our complaint, emphasizing the lack of proof that “any member of the public was in fact dissuaded from attending the meeting because of its location” and distinguishing a meeting held in a downtown office building from a meeting held in a private residence.

Chairman Brady noted that the downtown office building where the meeting was conducted “contains restaurants, a convenience shop and, until recently, a bank all of which are frequented by the general public during the week.” He maintained that “public, prominently-identified elevators transport the public to offices throughout the building, including the 28th floor offices of Wyatt, Tarrant & Combs where entry doors are (and were on the day of this meeting) wide open during the day.”

It was his position that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday.”

This is where we disagree.

Experience teaches that access to private offices is generally limited to business invitees during business hours. Private offices are entirely inaccessible to the public during nonbusiness hours.  Members of the general public do not freely enter and exist nonpublic buildings and offices at any time.

And certainly not on Sundays.

We confirmed this on a recent visit to PNC Plaza. At 4:00 pm on a Sunday afternoon we were unable to gain admittance through any of the doors to the building fronting Jefferson Street. All of these doors were locked.  On our final attempt to enter through a side door on Fifth Street, a guard unlocked the door. He confirmed that the doors to the building are locked on the weekend, and that if members of the public somehow gain admittance they are not permitted to take the elevators to the private offices located in the building.

None of the businesses which JCPS identified in its response were open much less accessible to the public.  As we were leaving, an individual who appeared to be an employee of one of the businesses located in the building admitted himself through an electronically activated door using a badge.

Whatever special provision was made for JCPS’s board meeting on April 30, to suggest that the meeting was conducted in “a place from which no part of the citizens . . . may be excluded by reason of not feeling they may freely attend” flies in the face of reasonable expectation and common experience. To assert that “the public would have no reason to believe that accessibility would be any different for the April 30th public meeting even though that day was a Sunday” is, at best, disingenuous.

Absent compelling justification, such as the inability to provide adequate space, seating or acoustics, the decision to conduct the meeting in any location other than JCPS’s regular meeting site was and is indefensible.

Bluegrass Beacon: Holding public records hostage

Amye BensenhaverBy Amye Bensenhaver, Guest Columnist

Editor’s note: The Bluegrass Beacon column is a weekly syndicated statewide newspaper column posted on the Bluegrass Institute website after being released to and published by newspapers statewide.

While employed as an instructor at the University of Kentucky’s School of Journalism, former hostage Terry Anderson recounted his five-year battle with federal agencies to obtain copies of public records under the Freedom of Information Act (FOIA) relating to the government’s efforts to secure his release from Hezbollah kidnappers during his nearly seven-year captivity.

Anderson described his bemusement when agency officials suggested he obtain signed releases from his former captors to expedite disclosure of the records he sought and protect his captors’ privacy. He shared his frustration when the records he received consisted almost entirely of newspaper articles and photos.

Although the content of the records ultimately disclosed to him was disappointing, Anderson’s protracted struggle illustrates, as the federal courts have observed, that “the value of information is partly a function of time.”

In the federal case recognizing this well-entrenched principle of records-access law, the U.S. Department of Justice postponed access to records requested under FOIA for up to 15 years.

The federal court decided that the delay was excessive, noting “Congress gave agencies 20 days, not years, to decide whether to comply with requests and notify the requesters.”

The court acknowledged that the Freedom of Information Act “doubtless poses practical difficulties for federal agencies,” but refused to “repeal it by a construction that vitiates any practical utility it may have.”

In other words, the court was unwilling to erode the principle of timely access to public records as an accommodation to the agency’s burden – real or imagined – and suggested that the agency present its concerns to Congress.

Kentucky’s public officials regularly complain about the three-day statutory deadline for responding to a request under the Open Records Act.

Lawmakers undoubtedly adopted a short turnaround for agency response in recognition of the fact that “the value of information is partly a function of time.”

The Kentucky Attorney General’s office in a recently issued decision admonished Louisville Metro Government for failing to explain the reasons for a 45-day delay in producing records responsive to a series of broadly worded requests relating to a complaint of sexual harassment, hostile work environment and retaliation filed by a Louisville Zoo employee.

The attorney general found that the facts on appeal supported the delay in producing the records beyond the three-day statutory deadline based on proof that just one of the multiple requests involved more than 23,000 records.

Delays in producing public records by state and local agencies in Kentucky may pale in comparison to delays at the federal level but are no less offensive to the principle that “the value of information is partly a function of time.”

Perhaps the solution to this and other problems lies in the statutory revision of the 40-year-old law.

Any such revision must be faithful to the law’s strongly worded statement of legislative policy favoring the public’s right to know but recognize the dramatic changes in the public-records landscape since the law’s enactment in 1976.

The newly created Bluegrass Institute Center for Open Government proposes revising the commonwealth’s open records and meetings laws in a new report, “Shining the Light on Kentucky Sunshine Laws.” We identify deficiencies in the laws exposed by successive legal challenges, suggest where revision is needed and make recommendations for change.

Our goal is to preserve what is best in the open meetings and records laws but encourage lawmakers to close loopholes in the laws that are frequently exploited by state and local agencies at the expense of the public’s right to know. Doing so will ease the burden on public agencies, reduce the likelihood of legal challenges, preserve administrative and judicial resources and, above all, promote the clearly stated policy of open, transparent and accountable government.

Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government at www.bipps.org. She wrote nearly 2,000 legal opinions regarding open records and meetings laws during a 25-year career as a Kentucky assistant attorney general. She can be reached at abensenhaver@freedomkentucky.com.

Is there a backlash growing over Kentucky’s proposed school accountability system?

Unbridled Learning, Kentucky’s current public-school assessment and accountability system, is on the way out, and Education Commissioner Stephen Pruitt and the Kentucky Department of Education have been working on an as-yet unnamed replacement accountability system for some time. Pruitt and his team have held two sets of public hearings seeking Kentuckians’ input into the new program and he formed several advisory committees to further develop ideas for the new system.

Now, a proposed system is starting to take form. The Kentucky Board of Education took its first formal look at the proposal in June, and a follow-up discussion is expected during the board’s August meeting.

Surprisingly, amid this movement toward finalizing Kentucky’s new accountability program – which, by law, must be submitted to Washington, DC for approval by mid-September – a curious letter appeared last week, co-signed by leaders of several organizations including the Kentucky Chamber of Commerce and the Prichard Committee for Academic Excellence, who were members of one of Pruitt’s key advisory committees.

It almost seems like the letter is, to use technical lingo, a minority dissenting report.

[Read more…]