When transparency becomes an inconvenience, legislate!

COG2In October 2017, we reported on a decision issued by the Kentucky attorney general in an open meetings dispute between The State Journal and the Finance and Administration Cabinet. The dispute centered on a State Journal reporter’s unsuccessful attempts to learn the identities of the members of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee and to attend the open portions of the committee’s meetings.

Fundamental to The State Journal’s position was the uncontested fact that the committee was created under authority of KRS 56.8163(1), a state statute, that the Open Meetings Act defines the term “public agency” as “any body created by or pursuant to state or local statute, and that the committee is therefore a public agency.

“The cabinet,” we noted in our discussion of the attorney general’s open meetings decision, “did not address either statute, or the statute authorizing the committee to conduct closed session discussion of specifically enumerated topics, in defending its longstanding practice of conducting committee meetings without notice to the public or complying with any of the other requirements imposed on all public agencies by law.”

Instead, we noted, the cabinet relied on an obscure advisory opinion issued by the attorney general in  1994 — relating to sub-delegation of administrative responsibilities in a university setting — and the argument that disclosure of the identities of selection committee members would expose the members to potential improper contacts and influence. This amounted to the unprecedented and legally unsupportable argument that “darkness is the best disinfectant.”

Happily, that position was soundly rejected  in 17-OMD-207. The attorney general’s staff determined that the Finance and Administration Cabinet’s refusal to publicize — and admit the public to —  the open portions of the meetings of the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee violated the Open Meetings Act.

In so holding, the staff concluded that “there is always a risk of improper contact in any issue of public importance,” and that “the Open Meetings Act makes no exemptions based on the mere possibility of improper contact.”

Unfortunately, the cabinet was not gracious in defeat. Although it grudgingly admitted The State Journal and the public to a scant few minutes at the beginning and end of a meeting conducted on October 26, it initiated an appeal of 17-OMD-207 to the Franklin Circuit Court  on November 3.

On appeal, as before, the cabinet cited no legal authority supporting its position other than the 1994 advisory opinion – an opinion that instead supported a finding that the selection committee is a public agency, the attorney general’s staff concluded –  and confidentiality statutes embedded in Chapter 56 of the Kentucky Revised Statutes – which The State Journal has never contested but which apply to the contents of bids before a contract is awarded and not to the open portions of the selection committee’s meetings.

The cabinet also resurrected the implausible argument that compliance with the Open Meetings Act could “undermine the confidentiality of the procurement process by exposing evaluation team members to great risk of improper contact, lobbying, and public opinion pressure, especially when a procurement is the subject of strong community opinions.”

That action is pending in the Franklin Circuit Court.

Now comes news of the introduction on January 18 of House Bill 216, sponsored by state Rep. Jason Petrie, R-Elkton. That bill is aimed at amending  the Open Meetings Act to exempt committees — like the Capital Plaza Redevelopment Project Built-to-Suit Selection Committee — from the requirements of the Open Meetings Act to the limited extent currently mandated by statute . The bill is also aimed at amending the Open Records Act to exempt from public inspection “[i]nformation identifying the members of a procurement or selection committee” and “[r]ecords of the procurement process.”

As we observed in October, “KRS 56.8169 authorizes [such] committees to discuss specific proposals in closed session. [No one] disputes this clearly established law. The General Assembly has statutorily fixed the limits of the committees’ permissible closed session discussion. The Finance Cabinet and its committees are not at liberty to exceed these limits based on unsupported claims that statutorily assigned duties will be compromised by public scrutiny.”

Apparently, the cabinet is not confident in its interpretation of its own statutes when read in conjunction with open meetings statutes. And rightly so. There simply is no ambiguity in the statutes which specifically require portions of the selection committee meetings to be conducted publicly and generally require compliance with the Open Meetings Act.

In the absence of any proof beyond a bare claim supporting the cabinet’s argument that sunlight is likely to infect the procurement process — and that darkness ensures integrity in that process – or any circumstance warranting a change in the existing law beyond the inconvenience of admitting the public to the open portions of selection committee meetings and otherwise complying with the Open Meetings Act, we are compelled to ask, “Why legislate?”

Rejecting or respecting the public’s right to know: the KRS pension report versus the House sexual harassment report

COG2On December 1 House leaders released the investigative report into sexual harassment claims against Jeff Hoover and other legislators first brought to the public’s attention one month earlier. The report was prepared at the House’s request by Louisville law firm Middleton and Reutlinger.

Owing to the refusal of some legislative staffers to cooperate, and the firm’s inability to obtain critical documentation, the report was inconclusive.  Accordingly, House leaders turned the investigation over to the Legislative Ethics Commission “to give the people of Kentucky a full and complete picture of what happened.”

In contrast to its apparent disdain for the policy that supports the Open Meetings Act — at least with respect to discussions of pension reform — the House demonstrated respect for the policy that supports the Open Records Act by releasing the report. That policy recognizes that “free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others.”

Its decision to do so stands in marked contrast to the administration’s rejection of the public’s right to examine the report on how much its pension reform bill would cost taxpayers and how it would impact pension plans within the Kentucky Retirement Systems prepared by the Kentucky Retirement Systems’ “reputable, qualified and established actuarial firm,” Gabriel, Roeder, Smith & Co.

The Bluegrass Institute Center for Open Government questioned the decision to withhold this report in a November 18 blog, examining whether existing legal authority supports that decision.

Our conclusion?  Because the report is an analysis of “the cost and impact of the administration’s pension plan” — a plan that, “although subject to legislative revision,  is final as to the administration,” — the report analyzing it is a post-decisional, not a pre-decisional, record that is in no way preliminary as described in KRS 61.878(1)(j).” Nor, we reasoned, is the report a “draft” as described  in KRS 61.878(1)(i) simply because it may reach unwelcomed conclusions and is “clearly marked as a draft.”

Because we knew of no legally defensible basis for denying the public access to the GRS report, the Center for Open Government submitted an open records request for the report — along with a copy of the Kentucky Retirement Systems’ contract with GRS — on November 15.

KRS responded to the latter part of our request by producing a copy of the contract but failed to address our request for the GRS report. Upon inquiry, we were advised that “[t]he only documents purportedly responsive at the time of [our] request were under revisions and squarely fell within the commonly phrased ‘preliminary exceptions’ rule exempting production under the Act pursuant to KRS 61.878(1)(i) and (j).”

Agency counsel explained that “at the time of the request, Kentucky Retirement Systems was under the good faith belief that a final actuarial analysis would be available in the very immediate future and uploaded directly onto [its] website. . . .This did not occur because of revisions to the draft, and, to date, Kentucky Retirement Systems does not have in its possession, custody or control a finalized actuarial analysis for public release.”

The final sentence of this paragraph was most telling. Counsel advised that “[f]uture requests for these records should be directed to the Office of the State Budget Director.”

And there it is.

The Kentucky Retirement Systems was apparently prepared to post the report upon receipt, but one member of its Board of Trustees, State Budget Director John Chilton, stood in its way. Indeed, it was Chilton who publicly announced that the report would only be released  “whenever the legislature decides to file” a final bill.

Chilton does not have unilateral authority to deny the public access to the GRS report, and KRS is foreclosed from ceding its open records decision making authority on the report, or any other record that it prepares, owns, uses, possesses or retains, to a single trustee. KRS cannot abdicate its statutorily assigned duties by disclaiming possession, custody and control of the report – inasmuch as it “owns” and has or will “use” the report. The GRS report is a KRS public record.

The GRS report is also a public record of the Office of State Budget Director insofar as that office “possesses” and “retains” a copy of the report. That office may – improperly in our view – deny a request submitted to it for the copy of the report in its custody and control, and should be prepared to defend its position in the event of a legal challenge. But the report is not a record of the Office of the State Budget Director exclusively,  and Budget Director Chilton cannot usurp the role of KRS official records custodian by requiring all requests for the report to be directed to his office.

To its credit, the House released the sexual harassment report – characterized in at least one article as “preliminary” – though the investigation was inconclusive and was therefore turned over to the Legislative Ethics Commission for further investigation and action.  Under standard open records analysis, the House might have argued successfully for nondisclosure of the report while the investigation proceeds and before final action is taken.

But the House recognized that “free and open examination of public records is in the public interest” and that the exceptions it might have invoked, KRS 61.878(1)(i) and (j), “are a shield and not a shackle.”

As noted, Chilton’s argument for nondisclosure of the GRS report is far weaker. Moreover, the public interest supporting disclosure of the GRS report is at least equal to – if not greater than – the public interest supporting disclosure of the sexual harassment report. Although the public has a right to know when its public servants breach the public trust by engaging in improper or illegal conduct, every citizen of Kentucky will feel the effects of the pension bill whatever it looks like in its final form.

It is far better to respect the citizens’ right to examine the “reputable, qualified and established actuarial firm’s” analysis of the administration’s pension reform bill,  “even though such examination may cause inconvenience or embarrassment to public officials or others,” than to reject that right.


Elementary School KPREP achievement gaps for white minus black scores getting worse

The new KPREP results for the 2017 test administration are now loaded in the Kentucky School Report Cards Database, so I took a look at how the latest elementary school level achievement gaps for white minus black proficiency rates in math and reading look.

The simple answer to my question is: very disappointing.

In fact, for elementary school blacks, their reading proficiency rate as of 2017 has now sunk below the level for the state’s students with learning disabilities. That’s just not acceptable.

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How much do taxpayers really spend on education in Kentucky?

And, how does Kentucky’s education spending rank against other states?

We hear it all the time. Kentucky’s educators frequently complain that they are not getting enough resources (think dollars) to do their job well. And, we’ve often heard that per pupil funding for education in Kentucky ranks low compared to what other states spend.

But now, a report from a very surprising source indicates our educators have not been giving us the correct picture. According to this source, not only does Kentucky’s education funding rank a whole lot higher than our educators have been telling us, but in 2015 the total taxpayer support for education in Kentucky actually ranked above the national average.

Based on this new ranking information, the Kentucky taxpayer now has cause to take issue with educators’ complaints because it looks like financial support for education in Kentucky – especially considering the state’s relatively low income levels – is actually rather remarkable.

By the way, if our educators want to complain about this surprising new information, they will have to take it to their own union. You see, the state funding rankings I refer to come from none other than the National Education Association. If that catches your attention, click the “Read more” link to learn still more.

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Bluegrass Beacon: ‘Smart outsourcing’ could keep students in Kentucky

BluegrassBeaconLogoPrivatization, like money, is neither good or bad in and of itself.

It’s how it’s used, or in the case of outsourcing – how the contract’s written – that matters most.

Who anticipated the day when a Kentucky university freshman could go his school’s dining facility, swipe a meal card and sit right there and enjoy sushi for lunch?

While such red-carpet treatment wasn’t out of the question for a five-star basketball recruit in the past, it would have been unheard of for, say, a potential engineering major.

But thorns of economic downturns and less state funding coupled with demand for greater returns on higher-education investments are producing flowers of fiscal finery, such as the University of Kentucky’s decision to turn to the private sector for new housing in 2011.

UK via privatization undertook a $450 million building boom that produced 14 new residence halls and more than 2 million square feet of learning and living space.

Education Realty Trust (EdR), which knows how to build, operate and maintain campus housing, fulfilled its commitment to provide 6,500 new, but affordable, state-of-the-art dorm rooms.

In fact, students paid the same rate for a new room in 2013 that was charged for one of the 686 new beds at four residence halls built in 2005.

Now, it turns out that what works in building student bedrooms also succeeds in constructing new dining rooms.

UK contracted with Aramark to upgrade its dining halls so that not only can students find every desired menu selection, but the company’s approach is impacting the commonwealth’s entire agricultural economy through a commitment to purchase Kentucky-made food products and actively recruit farmers statewide to grow vegetables, raise meat and provide dairy products for use in its new facilities.

Throw in a worry-free eating station – where gluten and allergy-causing foods are exempt – a sustainability coordinator and composting system, and you have a truly innovative program run by a private company.

It’s all happening with no additional tax dollars, bonding or borrowing by the university, which signed a $250 million deal with Aramark in 2014 and for the first couple of years actually charged students lower prices for their meal plans than they previously paid.

It’s a worthy example of how effective privatization of what had previously been considered the exclusive purview of a government entity – in this case, a university and its dining facility – can work to the advantage of students and their taxpaying families.

UK free-market economist and Bluegrass Institute scholar John Garen calls it “smart outsourcing.”

“It’s just like private organizations have to do,” he said. “They often must decide whether expending the resources and bringing in the people to do it themselves is the best way, or ask ‘Should we go outside and look for companies that are wholly focused on the particular need?’”

Other schools have begun following a similar outsourcing path.

Aramark’s new dining facility at Eastern Kentucky University in Richmond should be completed by the end of this year.

The company also entered into a 20-year, $20 million contract with Western Kentucky University to renovate current dining facilities and provide new options at the Bowling Green school, including a 24-hour restaurant in a new residence hall currently under construction.

Unlike convoluted P3 projects, such as the corrupt, costly and cronyistic Kentucky Wired boondoggle and its tortuous contract with Macquarie Capital, which has produced a track record of abysmal failure on similar projects in other states, these university deals offer tried-and-tested approaches toward true privatization.

By providing new residence halls with all the amenities and dining rooms with myriad choices, in-state students looking to enroll elsewhere have real reasons to remain in their old Kentucky home.

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.

Will it be strike two for Jefferson County Schools’ Chief Academic Officer manning?

More major problems are brewing for the already beleaguered Jefferson County school system.

On April 21, 2017, an online service connected to the Birmingham News newspaper reported that Lisa Herring, the current Chief Academic Officer (CAO) at the Jefferson County Public School District (JCPS), is a finalist to become Birmingham, Alabama’s new school superintendent.

So, it appears Herring, who has been on the job less than a year in Louisville, isn’t exactly in love with her current position in JCPS.

This is no surprise. In fact, the CAO position at JCPS had a highly troubled history even before Herring arrived, and recent events point to a lot more heat headed in the CAO’s way.

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Charter School bill passes another hurdle

House Bill 520, which would introduce charter schools to Kentucky, was passed, with amendments, by the Senate Education Committee by a 9 to 3 vote and will probably go to the full Senate this afternoon.

If the amended bill is passed by the Senate, it will have to meet concurrence action from the House before heading to Governor Bevin’s office.

News release: Groups stand together in support of robust charter-school policy

TFF-2016-Website-LogoFor Immediate Release: Tuesday, BIPPS LOGO
February 21, 2017                                                                    

Contact: Martin Cothran @ 859.329.1919, Jim Waters @  270.320.4376

(FRANKFORT, Ky.) — The Family Foundation of Kentucky and Bluegrass Institute for Public Policy Solutions have joined forces in calling for state lawmakers to seize the opportunity to pass the nation’s most robust charter-school law.

“Educational innovation is only possible if the conditions allow for it,” said Martin Cothran, senior policy analyst for The Family Foundation of Kentucky. “If a charter law does not allow for innovation, then there is likely to be no innovation.”

Charter schools are innovative public schools in which teachers and administrators are free of many of the regulations that tie the hands of capable educators in regular public schools and where a higher level of accomplishment is promised in exchange for the freedom to innovate.

A winning charter-school policy for Kentucky allows:

  • Authorizers beyond local school districts

For example, Rep. Phil Moffett’s House Bill 103 lets local school districts, mayors of Louisville and Lexington, public or private universities with accredited education colleges and Council on Postsecondary Education authorize the creation of charter schools. Only this freedom will ensure that these innovative schools are not hampered in their mission to provide families a quality education alternative.

  • An unbiased appeal opportunity before the Kentucky Board of Education

Charter-school applicants whose applications are denied by the aforementioned authorizers must have the possibility of another path by appeal to the state education board.

  • A robust process for alternative teacher certification.

Teacher certification requirements should allow for teachers to be trained outside the standard processes now available almost exclusively through teachers’ colleges. This would allow prospective teachers to gain exposure and expertise in content knowledge and innovative teaching methodologies unavailable in many existing teacher certification programs. One of the benefits of charters is their ability to offer innovative alternatives to establishment schools, a benefit that is made difficult to gain if educators are trained in the antiquated progressivist practices common in teachers’ colleges.

  • Charter schools in all public-school districts in Kentucky

Considering that 42 percent of Kentucky’s population lives in rural areas, we must ensure everyone –  from poor rural Kentuckians to minority students in our commonwealth’s urban, low-income neighborhoods –  the same equitable access to an excellent public education.

“A failure to allow for these freedoms could hamstring charters and result in schools no different than the failing schools to which they are intended as an alternative,” Cothran said. “Lawmakers should make sure they pass legislation that does not set up charters for failure, failure the educational establishment will use to prevent further change.”

Both organizations pledged to stand together and work toward bringing the hope and opportunity of a great education to the children and families of the commonwealth.

For comment and more information, contact Martin Cothran, senior policy analyst for The Family Foundation of Kentucky @ 859.329.1919 or Bluegrass Institute president Jim Waters @ 270.320.4376.

C’mon Prichard, let’s get this right

I just ran across an article in the Messenger-Inquirer (subscription) where the Prichard Committee claims that based on its “A Citizen’s Guide to Kentucky Education:”

“In 2002, Kentucky was given $6,316 per student; the U.S. average per-pupil spending was $8,206, and at that time, Kentucky ranked 42nd among the other states. Compare that to the 2013 spending, which says that $9,266 was spent per student in Kentucky. The U.S. average was $11,254 spent per student, and Kentucky ranked 37th out of 50 states, the report indicates.”

So, according to Prichard’s numbers, in 2013 Kentucky would have spent $1,988 less per pupil than the national average.

Going to page 5 in the Citizen’s Guide, I learned the ultimate source for these financial figures is supposed to be the annual Public Education Finances documents from the US Census Bureau.

OK, we use those Census documents, too.

But, Prichard’s 2013 numbers didn’t look right. So, I went to Table 11 in Public Education Finances 2013 where this data and ranking information is found.


Kentucky’s “Current Spending” for 2013 was actually $9,316 per pupil while national average spending was just $10,700. That is a spread of only $1,384 per pupil. That difference is over 30 percent lower than Prichard’s numbers show. That’s a pretty big difference.

Oh, the real Census information also shows that Kentucky ranked 35th, not 37th, for its spending in 2013.

Prichard’s numbers don’t agree with the 2002 Census report, either.

But, I guess a 30 percent error is OK when you want to push the state to spend a lot more than it can afford.

You see, Table 12 in the 2013 Public Education Finances edition shows how Kentucky supports education in relationship to taxpayer average income. We ranked 15th in the nation in 2013 for education spending once you allow for the fact that we are not exactly the richest state in the country!

Wow! In 15th place!

You’re not hearing that from Prichard, sadly.

Do Kentucky’s KPREP school assessments do what they are supposed to do?

If so, why is the evidence not available after five years of KPREP testing?

The Bluegrass Institute has discovered a rather extraordinary January 6, 2017 letter from the US Department of Education to Kentucky Commissioner of Education Stephen Pruitt.

This letter says evidence provided by the Kentucky Department of Education only shows that the state’s public school assessments just partially meet requirements of federal education legislation.

The letter lists the following general comments:

  • Reading/ language arts (R/LA) and mathematics general assessments in grades 3-8 (Kentucky Performance Rating for Educational Progress (K-PREP)): Partially meets requirements
  • R/LA and mathematics general assessments in high school (ACT QualityCore EOC for R/LA and math): Partially meets requirements
  • R/LA and mathematics alternate assessments for students with the most significant cognitive disabilities in grades 3-8 and high school (Alternate K-PREP for R/LA and math): Partially meets requirements

The letter continues:

“The partially meets requirements designation for a component means that it does not meet a number of the requirements of the statute and regulations, and Kentucky will need to provide substantial additional information to demonstrate it meets the requirements. The Department expects that Kentucky may not be able to submit all of the required information within one year (underlined emphasis added).”

Keeping in mind that the Kentucky KPREP and End-of-Course tests have been in place since the 2011-12 school term, the letter’s expanded details about the missing evidence are very disturbing.

For example, Under Critical Element 1.2, the US Department of Education says Kentucky needs to provide:

“A description of State stakeholders involved in the development and/or adoption process for the R/LA, mathematics, and science content standards that includes detail on subject-matter expertise, individuals representing English learners (ELs) and students with disabilities.”

This might be really hard to do. Kentucky basically just adopted the Common Core State Standards for English Language Arts and Mathematics (CCSS) at a high level. State stakeholders really had no say in the final decisions about what went into the CCSS. The adoption was made by the Kentucky Board of Education, the Kentucky Educational Professional Standards Board and the Kentucky Council on Postsecondary Education. Subject matter experts were not involved in this widely televised, media event joint meeting of these three boards.

In fact, the adoption of Common Core took place about 3-1/2 months before the final version of the Common Core was even published. It is hard for experts to have looked at something that didn’t even exist at the time of adoption. In fact, the public comment draft of the Common Core didn’t even come out until March 2010, weeks after the three Kentucky boards had already adopted the Common Core, sight unseen.

Under Critical Element 1.5, Kentucky still needs to provide:

“Evidence that the State has procedures in place for ensuring that each student is tested and counted in the calculation of participation rates on each required assessment.”

How’s that? Kentucky can’t provide evidence it really is testing all students with KPREP? Not even after the test has been in used for five testing cycles? That is a real problem.

And, the letter doesn’t stop there. To learn still more, click on the “Read more” link.

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