The Washington Post’s Valerie Strauss reported Monday that the DC Public Charter School Board violated city law when it proceeded to approve two charter amendment requests at its May meeting involving D.C. Prep PCS.

As you recall, the board gave the green light to one of three charter amendment requests from this school at its April meeting, which dealt with the relocation of its Anacostia Elementary School.  But two other requests involving replication were turned down due to concerns about the D.C. Prep’s student suspension rate, which is higher than the charter sector average.  After this action was taken, the board received widespread criticism for taking into account suspension rates when denying growth of a school since this factor is not included in either its criteria for charter expansion or the School Reform Act.

Then, in a surprise at the PCSB’s June meeting, member Don Soifer reintroduced the two charter amendments for D.C. Prep that were rejected a couple of months prior.  This time however, after the school’s chief executive officer and founder Emily Lawson was able to testify and attenuate concerns over student suspensions, the motion passed in the affirmative.

So the matter was closed.  Well, not exactly.  The problem was that the D.C. Prep charter amendments were never part of the June meeting agenda and therefore the public had no opportunity to comment before the second vote.  This led DCPS parent and blogger Valerie Jablow to make a formal complaint to the D.C. Office of Open Government.  Here’s what she said, according to Ms. Strauss:

“At the DC Public Charter School Board (PCSB) meeting on March 20, 2017, several citizens and public interest groups either submitted written testimony or testified in person against a petition by DC Prep for an enrollment increase that would allow it to open a new elementary school and a middle school. Some opposition was based on DC Prep’s high student suspension rates, and the overcapacity in available seats that already exists among all DCPS and charter schools.

At its next meeting, on April 24, 2017, the PCSB denied DC Prep’s petition, citing concerns about suspension rates at DC Prep among other reasons.

On June 19, 2017, the PCSB held its most recent regularly scheduled monthly meeting. The agenda for that meeting was posted a day or so in advance of the meeting, on the charter board website. DC Prep was on the agenda for a charter amendment to its Performance Management Framework (PMF), but not for an enrollment increase.

At about an hour and a half into the June 19, 2017, meeting, one of the board members, Don Soifer, introduced additions to the agenda for the evening, citing Robert’s Rules of Order. The first addition was to renew DC Prep’s application to amend its charter to add a middle school, with a corresponding increase in students. The second addition to the agenda was for DC Prep to add an elementary school, along with a corresponding enrollment increase. The board voted to add both items to the agenda, with the vote on each to occur later in the evening.

So it was that at its June 19, 2017, meeting, without any notice to the public, the PCSB reconsidered and then reversed its April 24, 2017 decision, approving DC Prep’s petition to create two new charter schools. Before the June 19, 2017 meeting, the public had no idea this was going to be reconsidered and voted upon that evening. This is a violation of the charter board’s own rules for public notification.

It also is a violation of the District’s Open Meetings law, as the lack of any public notice that the DC Prep expansion vote would be revisited in all practical effect made the June 19 PCSB meeting a closed meeting, particularly with respect to those who had opposed the petition the first time around.

In addition, the PCSB failed to post at least one public comment on the DC Prep petition ahead of time. This too is a violation of the charter board’s own rules.

In response to a question from another member of the public about that reconsideration vote on June 19, 2017, a charter board staff member (Tomeika Bowden) sent the following:

‘Robert’s Rules of Order allows for board members to request to add items to the agenda during the meeting. Additionally, Robert’s Rules of Order advises that a prepared agenda should not prevent members from bringing up business items. In this case, the DC Prep items voted on at the June meeting were identical in substance to those voted on previously, which already went through the complete public hearing and comment process. The public had ample time to provide comments and testimony, which the Board received and considered in its decision. If the items added to the agenda were materially different or new, we would have held a new public comment process to ensure adequate notice.’

There is also a related problem of considering and making available all public comments received on the DC Prep petition.

The day before the June 19, 2017 PCSB meeting, on June 18, I emailed Ms. Bowden at the charter board, along with Scott Pearson, the executive director, and Darren Woodruff, the board chair, noting that my comments on the original proposals from DC Prep and KIPP DC (which I submitted by the charter board’s March 20 deadline) were not listed on the materials for the June 19 board meeting. I re-sent my comments to them in that same email.

Later on June 18, Darren Woodruff sent my comments to all the charter board members and copied me via email. But it wasn’t until days after that June 19 board meeting that my comments on KIPP DC appeared on the posted materials for the June 19 board meeting. And my comments on DC Prep have never been posted with any board materials for DC Prep at any time.

Moreover, in the materials for the March 20, 2017 PCSB meeting, a staff memo (dated that same day) noted that the DC Prep proposal, which was to be discussed but not voted on during the 3/20 meeting, had no public comment. That was not true—I had submitted my comments by then, as had others.

When the DC Prep proposal came up for a vote on April 24, 2017, only one public comment in opposition to DC Prep was posted with the board materials the day prior to the April 24 meeting. That was a comment by Suzanne Wells that was made at the March 20, 2017 PCSB hearing.

Finally, and worst of all, no one commented against the DC Prep proposal for the June 19, 2017, board meeting because no one knew before the June 19 meeting that this proposal was going to be re-visited and voted on by PCSB. While the public had been allowed to comment on the DC Prep petition before the March 20, 2017 PCSB hearing, new information about DC Prep’s suspension rates was learned at the April 24, 2017 PCSB hearing.

In addition, the public had every confidence that once the PCSB had denied the DC Prep enrollment increase petition in April, it would not be up for consideration again without further public notice. As it is, members of the public might have testified if they knew there was a likelihood two additional schools would open in Ward 7, where there is already an overcapacity of school seats in Ward 7 at the elementary, middle, and high school levels.

The charter board needs to suspend the vote they took on June 19, 2017, approving both the new elementary and middle schools for DC Prep. They need to announce this addition to their work agenda anew; open it up for public comment; ensure that the public comment is in fact posted well ahead of the meeting; and have another meeting to vote on it.

This would allow people who had no idea DC Prep’s proposal was going to be re-visited and re-voted upon a chance to testify in person or create new comments (and ensure they get posted).

The fact that the proposal for DC Prep was the same as it stood before the vote in April is a moot point: if the public doesn’t even know something is being considered, and voted on, the public is left in the dark not because it chooses to be, but because the public has no other choice.

Moreover, the only people who knew DC Prep’s proposal was under consideration at the June 19 PCSB meeting were those who stood to benefit from it materially: the school itself and the charter board, which depends on its funding in large part from fees from individual charter schools. This raises conflict of interest issues as well.”

In a ten page ruling dated August 9, 2017 the D.C. Office of Open Government sided with Ms. Jablow.  It reads in part:

“As previously stated, there was reliance by the DCPCSB on the “Renew the Motion” pursuant to Robert’s Rules of Order to bring the two disapproved DC Prep charter amendments back before the body for reconsideration on June 19, 2017.  Normally, revising a public body’s draft meeting agenda for adoption as the final meeting agenda under the protocol the OOG has provided to public bodies would present no affront to the OMA [Open Meetings Act] or SRA [School Reform Act]. However, the DCPCSB’s enabling legislation is unique.  The statute requires, without limiting language, for all DCPCSB’s meetings to be open to the public with a reasonable period for public comment on the agenda items.  It is also for this reason that DCPCSB’s “Renew the Motion” was not a lawful means to revise the DCPCSB draft meeting agenda before adoption as the final agenda.  This is because revising the DCPCSB draft meeting agenda at the start of its meeting to include additional items that require a public hearing and a period of public comment voids the statutory public notice and period for public comment mandated by the SRA.”

The Office of Open Government is not asking that the decision on D.C. Prep be reversed, and charter board spokesperson Tomeika Bowden states that the board will not revisit the vote.  It will, however, follow the law going forward and institute training on how to comply with its regulations.

The most ironic part of this whole story is that the findings of the Office of Open Government would normally be signed by its director Traci Hughes.  However, Ms. Hughes had to recuse herself in this case.  You see, she has a child that attends D.C. Prep.