The good news is that Board President Gina Daleiden has put a review of the district’s complaint procedures, as well as follow up to the board direction to explore alternative conflict resolution mechanisms, on the May agenda.
But it’s hard to imagine a more antiquated system for enacting and reviewing complaints. There are problems from top to bottom in the process. This week we finally started getting answers on the complaint and investigation system itself and, unfortunately, none of them are good.
The district needs to understand that they may have come to the right conclusion on every one of the complaints that were filed in the district, but, given the privacy concerns and the opaqueness of the process, the public is going to be skeptical.
We understand that personnel matters and even student complaint processes are hidden behind privacy laws enacted to protect employees and students. Ironically, it seems at times those processes end up hurting the very people they are supposed to help by keeping matters out of the eyes of the public and making accountability difficult.
So we have identified a number of key problems.
Lack of accountability. As we have noted before, the school board does not even become aware of a complaint until it reaches the appeal stage. That means, as Gina Daleiden told us a few months ago, the school board really does not see a majority of complaints.
The decision to investigate a complaint externally comes from the Assistant Superintendent of Human Resources and/or the Director of Student Services. The process may get overseen by the Superintendent, but unless the complaint gets appealed, the school board has no say over any of the key components: cost, time, seriousness of the complaint.
Over the four years we received records from the school district, 11 investigations were handled externally out of 70, at a cost of $252,000 and the use of 1148 hours.
Lack of transparency. If the investigation is going to be conducted outside of the public’s view, there has to be some sort of transparency in the process. The problem is that there is none. The closest link to the public is again the school board, and they see the investigation only in the appeal stage. Moreover, the other safeguard would be for the parties involved to be able to review the full complaint.
However, we know from the Peterson-Crawford case that the Petersons received a letter of summary from Matt Best, the Assistant Superintendent in charge of HR. We know that Julie Crawford was not even allowed prior to her appeal to see the full report and thus the evidence against her.
Lack of Independence. If we had an open and transparent process, this next problem would be less. But given the lack of accountability and transparency, it is difficult to know if there is a problem or not.
One of the key questions that has not really been answered is how the district selects the investigator. What we have learned is that the district has essentially used two law firms: Atkinson, Andelson, Loya, Rudd & Romo (AALRR); and Van Dermyden Allison/Maddux (VM).
What makes it more intriguing is that the School District’s Attorney, Eve Peek Fichtner, has actually been employed by both firms. Ms. Fichtner was Senior Counsel at AALRR from 2000 until September 2013 when she went to Van Dermyden as a Partner in October 2013.
Coincidence? The pattern suggests that the district simply used their attorney’s firm to conduct the investigation.
Is that a conflict of interest? Not necessarily. But the whole set up suggests perhaps something else going on here. As we know from the most recent investigation, Eve Fichtner herself was one of three attorneys involved in the report.
We also know from the release by the school district that one of the criteria for launching an external investigation is potential litigation.
The problem, therefore, becomes quite evident. The district’s chief interest here is in reducing the potential for litigation. They hire firms associated with an attorney, Eve Fichtner, with whom they contract for the same purpose – reducing the potential for litigation.
That means that anyone hired to investigate is potentially hired not to uncover the truth but to reduce the district’s exposure for litigation.
That calls into question the veracity of a report that, as we know, in most possible ways attempted to split the baby.
Questionable Results. All of this leads to questionable results. Our analysis with Leigh Choate illustrates this problem perfectly. She and her daughter spent an hour of time with investigator Alexander Sperry.
She provided him with a list of witnesses. He apparently failed to contact any of them. So half the dispute used one hour. Yet there are 48 billable hours, a finding that denied her complaint, with no explanation.
Is this any way to do business? Is it no wonder that this dispute festered as it did until it blew up in the worst way and caused a sitting board member to resign. The genesis of that community turmoil was in an outdated and antiquated plan.
Code 3. Gina Daleiden in her dissent made the point, “I do believe that our district’s response to complaints and the way that we handle the procedure and the investigations needs to be in proportion, I do believe in this instance the district went Code 3 on something that maybe didn’t warrant that.”
“I do not find in reading the investigation that there is a preponderance of evidence to support the findings and the conclusions,” she said. She added that they “ended up jumping right into the deep end of the pool” and she would have preferred to have seen this resolved “at a much lower level, a whole lot earlier.”
Later, Nancy Peterson would respond, “So President Daleiden, since your biggest issue seems to be why this wasn’t handled before sending a Code-3 in motion, here is my answer: that would have required someone from the district or even DHS to speak to the student and that I can assure you, never happened.”
The interesting thing is that both are right here. The district lacks an alternative conflict resolution mechanism that can take the immediate complaint from a formal investigative system and turn it into some sort of restorative justice-based conflict resolution.
Imagine if, in 2010, instead of the district launching into a $10,000, 48-hour investigation, they created a structure where Nancy Peterson, Leigh Choate, and Julie Crawford participated in a restorative justice process that highlighted what the points of dispute were, identified the harms done, and empowered the participants to find ways to remedy those harms.
Nothing is 100% percent, but that seems a much more viable and fiscally responsible policy than launching immediately into a Code-3, $10,000 investigation.
We should not have to be using these kinds of resources on a student who was cut from a sports team, but we also should have had that situation resolved much earlier.
Appointment Process. I would be remiss if I did not point out at least a potential fatal flaw in the appointment process. There is no doubt that the school board has to be pleased with the large number of highly qualified applicants for the vacancy. But only one so far has stated they will not run again.
What’s the problem? The problem is that in November there are two parallel elections. Unless the Board names BJ Kline and he follows through on his commitment not to seek reelection, then you have two ballot conditions. First, you have an open seat that will have at least one incumbent not running and possibly all three. So, potentially three open seats for a four-year term.
In the second ballot condition, you have a two-year seat with an appointed incumbent.
Now, who in their right mind is going to run for a shorter term against an appointed incumbent when there is a fully four-year seat with no incumbents?
Now one of the candidates told the Vanguard they will run for that two-year seat regardless of whether they get the appointment, but the problem still stands that while it appears you leave it for the voters in six months, the incentive structures of the choices constrain competition in the two-year seat.
The school board at least needs to keep that in mind as they make their decision.
—David M. Greenwald reporting