After some controversy last week regarding the Christina School District Consolidation Plan and legislation sponsored by State Representative Paul Baumbach that would allow the removal of elected school board members, Baumbach sat down for an interview to say that the two issues are not connected, and then proceeds to describe his bill. The following is transcribed from an recorded interview.
Brian: So let’s start off with just this: what is the impetus behind this proposal [to remove school board members].
Paul: Well I think there was the experience of many Christina parents who tried to get referendums passed in the past few years. When you speak to people at the doors and when I speak people at my coffee’s, there’s sometimes occasionally the reaction of why should we trust this district, their board is nuts and you know when you’ve got the headlines of board members using the N word at school employees within earshot of kids you understand that. Now that’s past board members, so this is not to direct that criticism at the current board. When you look at it, there is nothing in the Delaware code, I could get elected as a board member in May and skip the next 60 monthly meetings. And there’s nothing anyone can do about that and that’s wrong. So that’s the wrong that I wanted to right.
As the PDF shows, this [the draft legislation] is something we drafted in June. We researched it in April and May. We found a model from Maryland and we picked it up and dropped it into the Delaware code. So that we prepared it in June and we said you know what. This isn’t something that warrants a rollout in June , so let’s bring it out when the next session starts come January. And getting it prefiled in late December seemed to be that the right approach to that. But that was the genesis of the distribution of the bill to legislators this week.
Brian: Right now as you know the Christina School District and the governor are working on an MOU with plans to address the city of Wilmington’s schools and consolidation, etc, etc. So a couple of the comments have suggested the timing of this [legislation] coming out and concern has been expressed about whether or not this may be a warning shot to the Christina school board. Because as I understand it a couple of the board members have asked for additional time to evaluate the MOU. So what else can you tell me about that.
Paul: I think that if I prepared the bill in December 2017 I would understand that. The fact that we prepared the bill in May and June indicates we had, this has nothing to do with that. This has to do with the problem of having board members that are, by structure, not answerable until the end of their five year term. The legislative schedule was in January to June. We’ve got prefile’s in December. That’s why it was floated. It was not released it’s not filed and the fact that they came out in my eyes is more likely to be used by those who oppose the [consolidation] plan. They looking for more reasons to oppose the plan. This to me is completely irrelevant to the plan. Let’s say that a school board member or more than one school member doesn’t like the process that is going on. They vote against it. There is nothing in this bill that touches them. That’s not … that’s not incompetency. That’s not failing to do their their duties. That’s not misconduct.
There is nothing in the MOU that has any bearing on this bill. To me it strikes me as just a convenient excuse to smokescreen. I don’t see it as being germane to the independent issue of Wilmington schools within the Christina school district.
Brian: So to follow up to that. What defines, under the bill, or who defines what misconduct in office, incompetency or willful neglect of duty?
Paul: So willful neglected duty I think is well understood in layman’s terms. If you don’t show up at your meetings that’s willful neglect. If you don’t answer questions from your fellow members, superintendents, their constituents, that’s a neglect of duty. If you just go AWOL, that’s a neglect of duty. With regards to incompetence, I think that’s not reading anything, or if you’re just not able to do the duties of office. Incompetence is pretty clear. I think misconduct is the is the word that’s of most interest. And I provided a legislative attorney’s research on that too. In the Delaware Code, Section 12217. This is a Class A misdemeanor which of course is not enough to take someone out of office. But it is the definition of misconduct in the Delaware code. You’re guilty of official misconduct when intending to obtain a personal benefit or to cause harm to another person, a public servant commits an act constituting an unauthorized exercise of official functions knowing that the act is unauthorized, or the public servant knowingly refrains from performing a duty which is imposed by law or is clearly inherent in the nature of the office. When a public servant performs official functions in a way intended to benefit the public servants own property or financial interests. There are circumstances in which the public servants’ actions would not have been reasonably justified in consideration of the factors which ought to have been taken into account in performing official functions or the public servant knowingly performs official functions in a way intended to practice discrimination on the basis of race, creed, color, sex, age, handicapped status or national origin. None of those have anything to do with a board member disagreeing with a proposed MOU for instance. This has nothing to do with the Wilmington CSC project that’s going on. It has to be with board members not doing their jobs.
Brian: I got a couple of questions just about the language and details in this draft. So my understanding is that the bill will require 60 percent vote from the State Board of Education to remove the sitting board member. But that is only following, for lack of a better term, a trial of sorts. And then again that would have to be all signed off on by the governor as well.
Paul: Right. [The Governor] would have to agree on that, yes. Yes.
Brian: So my first question would be: would this entire process, from the state board issuing a summons, so to speak, to a board member through the decision or a vote by the board and then the approval or disapproval of the governor. Would all of that be in the public view?
Paul: I think it pretty clearly is. The bill provides the school board member an opportunity to be heard publicly, so yes, it’s all public. Now, there is an exemption for public meetings if there is an issue of employment, if the issue is a sexual harassment for instance, then the issue would go to executive session. But that likely would require consent of both parties. I’m not certain of that, but that’s the only exception we have for the thing being in public.
Brian: That’s similar how it currently works now with boards of education when there’s employment decisions to be made, that’s done out of the public in an executive session.
Brian: If we had a a State Board of Education go rogue, how many board members would they be able to remove at any given time period?
Paul: Well what happens is if one board member is removed then the reduced board would have the opportunity to go into an emergency meeting and appoint a temporary board member for that vacancy, just as we do when somebody moves out of the district. So you know that that can happen pretty pretty easily. And you know, so all of this has to have cause, and there is an appeal process. So what you’re asking is could the state board can bring a majority of the [local] board up through this process all in one day?
Paul: I don’t see a restriction of that and I’m happy to insert a restriction on that.
Brian: Okay. Very good.
Paul: And we could have a 30 day waiting period, where a hearing can’t be scheduled sooner than thirty days since the last such hearing was held. I mean, there’s a lot of… I’m the king of amendments, so I’ve got zero problem making bills better.
Brian: Good to know.
Paul: For that matter, since the bill is not being filed this week, I can improve it without even having it officially filed. I’ve submitted, I’ve shared a draft with my colleagues but it’s not the filed bill until it’s filed and it’s getting filed this week.
Brian: If the state board does vote to remove a board member, what’s to stop that board member, former board member, from running for election again?
Paul: Nothing. Nothing. This doesn’t change the qualifications of office. This just takes them out again. It actually doesn’t stop the board from appointing them temporarily until the next election.
Brian: Here’s a bit of an open ended question. So what are your thoughts right now on where the Governor, the District and the city of Wilmington schools are with the MOU process. Now, I know you said that these are two separate issues and that they’re not entwined at all….
Paul: … but they’re happening at the same time.
Paul: I am not in the loop on the current version of the MOU. So I saw the first official draft, not the first draft that was leaked but the revised draft that came out 48 hours after that, and I’ve not seen the one that came out Monday. So you know what I understood is that the board and most of the board members and many of the stakeholders were very pleased at the difference in environment with this governor’s administration and how they were being partnered with as opposed to prior governor’s administration. And that there was there was hope that this could be done successfully. There were certainly concerns. And one of the concerns is timing. One of the concerns was funding. I think that anyone who understands the situation, the governor doesn’t have the ability to write checks. This requires action in the General Assembly which is in recess until January so that that’s the reality of the world we have to live with that. But the governor also has the ability to promote spending priorities. So you know I think that that did not worry me and my sense amongst my colleagues is that we recognize that we’re not doing our job for many of the Wilmington students and we need to do a better job and some of that needs more funding. So I think that a good faith partnership between the administration and Christina school district parties is one that can get the required financial support of the General Assembly. And on the timing, I understand the predisposition of wanting more time given the scale of the changes that are being proposed. But I also understand the frustration on year after year of waste going through these schools that are not getting the education they deserve. And every time you push off a year you send another class. You’re not going to get the benefits that this plan is proposing. So I understand the desire for as promised a timetable is as practical.
Brian: You know I’ve spoken to on this a few times that there’s a time for urgency. There’s also a time for analysis to make sure you understand what you’re doing and they compete very often.
Paul: Yes indeed. Brian, you’re a nuance person you get that.
Brian: Thank you. So back to this proposed removal process. Who or what starts this ball rolling? Who would originate the complaint to the state board? Would the complaints come from parents, teachers, district administrators, voters, residents?
Paul: Let me start off by saying that several things have been shared with me regarding concerns over the draft bill and one is the body that does the deliberations, currently it’s the state board of education and the other is what is the process to get into the process. And one of the suggestions made was that what should start this debate was a petition of District residents in some number of them. And I liked that idea. So I liked the idea of let’s say 50 District residents needing to sign a petition to bring it to the body to bring the member up for analysis. So that’s not in the bill, but as I say I’m quite happy to improve the bill. And you know if we can get a consensus that that is a good improvement to the bill, I’m completely open to that. At this point there’s no path and therefore I’d say that anyone can petition the school board, the state board, to add it to their agenda. So there is no real gate on the process which is why I think it is good to get input and figure out what is a good gate mechanism.
Brian: One of the things that jumped out at me when I read this draft was it is essentially providing an avenue for the executive branch to remove, for all intents and purposes, a member of the legislative branch, a duly elected representative that sits on the school board and the State Board of Education being being a function of the executive branch of the state government. You basically have one branch unseating another.
Paul: But you have the judicial branch involved with the appeals, so that’s where the balance, separation of powers is.
Brian: OK, that’s fair enough. My secondary concern to that is, we all know that voter turnout for school board elections is anything but stellar. So, if a majority or a plurality of voters that come out to vote elects a school board member, would it be seen as fair if this petition was circulated by a guy with on the state boards or with a state board agenda that goes against a decision that was rendered by voters…
Paul: But let me let me just turn it around and say, let’s use the extreme example. You were elected and you don’t attend a single meeting. What should the remedy be? Give me an alternative.
Brian: Well, I’m not saying there is an alternative. [Laughter] There is no alternative for removal of a sitting board member for any reason at all short of a felony conviction rate and incarceration.
Brian: It’s just it just struck me as peculiar to see. Yes with the judicial branch does have opportunity to weigh in on this. The appeals process. It just struck me as peculiar to see an unelected appointed board render a verdict essentially on an elected representative.
Paul: Well I mean, the whole judicial branch is unelected and rules on executive branch people and legislative branch people. It’s pretty common in our systems. And for that matter, school board members, like the judiciary, have to be approved by the Senate, or the legislative branch.
Brian: Well, that is all I had for questions on this topic…
Paul: If you don’t mind, I’m just gonna vent for a minute or two.
Brian: No no. Go ahead.
Paul: I really appreciate, I always appreciate our dialogues. And I had good dialogues with some folks online last night and I really appreciate that. I wasn’t terribly pleased by by folks who take one side of things and run with it without getting any perspective on the other side. That disappointed me, and I think that’s a disservice for the readers. And I really appreciate you taking the time. And you know I think that that is far better for those who try to stay up on education issues. And lastly is, I’ve got no problem, not you but more my colleagues, if you don’t like something, give me a good alternative. We have a problem in that we have unanswerable board members who can be not doing their jobs and there is no way to get rid of them. You don’t like this version of it. No problem! Give me an alternative. I’m completely open to that. But just saying “Hey I hate that,” I think that that’s just half of your job. You got to give them alternatives. I’m disappointed when people rail against this without saying what they suggest we do when someone’s not doing their jobs on school board.
Brian: Well thank you very much for taking a little bit of time tonight to talk about this.
Paul: I appreciate that. I appreciate it. Thank you so much. Have a good night.