Round 2: Esrati vs DPS and Dayton City Commission

Judge Skelton asked for both sides to file a memo arguing if ORC 121.22 trumped Rule 65, even though he made it clear that he believed it did to start the court arguments.

And he asked us to use a pen, not a shovel.

To me, the pen is the tool that changes history. Shovels are what you use to muck a stall. Lawyers love to shovel. I love to write.

So, my filing is 9 pages plus attachments. I strayed outside the lines of strictly interpreting the issue of ORC 121.22 vs Rule 65, by explaining all the actions of the task force amounting to repeated  and willful violations of the law. Since the defense tried to claim that a TRO as required by Rule 65 was moot, since they had already violated ORC 121.22, and that he believed that sticking to the law in the future would some how fix things- clearly had to be addressed (total bullshit, needing a bulldozer instead of a mere shovel).

Needless to say, the research was enlightening.

404 error of the county Clerk of courts site

The Montgomery County Clerk of Courts site doesn’t like my filing.

Unfortunately, the Courts website (the one with the 35 page instructions on use) gives a 404 error when trying to upload the the large document that the school task force was given during their illegal tour. I had to abbreviate it just to upload to the site. Acting in full transparency mode, I’m posting it here, now. I’m sure, this will give the advantage to the defense, who will now, re-write their memo, turning it in at the last minute- and wasting considerable tax payer dollars doing so.

That is the crux of the problem with ORC 121.22- the burden and risk, is all upon the plaintiff- who risks getting billed for court costs and attorneys fees if their motion is found to be frivolous. Public officials who break the law, on the other hand, suffer zero personal risk, having tax funded defense at their disposal.

It also turns out that removal from office has been a false threat, enforced almost never. Our “Sunshine Laws” are in practice, just blowing sunshine up our collective butt.

Or at least they have been in the past.

The actions of these elected officials and employees of the district have been so wrong, so wanton in their disregard for the law, that maybe, just maybe, this will be a case that makes a difference. Or not.

At this point, the judge will consider both filings, and then offer a conference call on how to proceed.

My call is that he issue the injunction, which allows me to begin the process of contacting the Open Government Unit to begin proceedings to remove Jeff Mims, Robert Walker, William Harris and Mohamed Al-Hamdani from office.

He should also order the task force disbanded, and all members ruled ineligible to discuss the issue of school closings because they participated in an illegal secret meeting. This means, Acting Superintendent Lolli, Associate Superintendent Burton and Treasurer Abraha would all have to sit this one out.

Mims would have to be replaced by election, the three school board members would be replaced by those chosen by current remaining members, John McManus, Sheila Taylor, Jocelyn Rhynard and Karen Wick Gagnet, from members of the community that ask to sit on the board.

The only thing left to decide in court, is how many times they broke the law, and how many times the $500 fine should be counted.

Here are the documents for you to read, which are also available on the County Clerk of Courts site.

thumbnail of Rule 65 or ORC 121 – v3

The Esrati filing on which law to use

thumbnail of A-1 Citizen Advocacy Center Explaination of Sunshine Laws SM

A guide on the sunshine laws in Ohio that is clearer than the AG’s version

thumbnail of A2 Violating government-access laws rarely results in punishment for the offenders | Reporters Committee for Freedom of the Press

Document From Media and the law explaining that Sunshine Laws are weak.

thumbnail of A-3 Re Public records request- tour docs

Public Records Request from David Esrati to the School Board for the documents used on the tour

thumbnail of A-4 Task Force Docs – Tour Day 2-6-18abreiviated

The abbreviated version of the task force document handed out on the bus

UPDATE

9pm Monday, 12 Feb 18 The city uploaded their response after 4pm. They had until midnight. It’s odd in that it focuses on the judges ability to shut down the task force, which wasn’t what he asked for, and some case law trying to grasp at straws that Rule 65 applies, without any specificity to the case.

UPDATE

9:15 am Tuesday, 13 Feb 18. The School Board attorney also filed a brief- more to the issue of Rule 65 and also arguing that the judge can’t disband a task force. Really? How can a task force that violates the sunshine law- by meeting in private, possibly contribute to any discussion the board will have about the issue of closing schools, and, how can any employee of the district, that helped coordinate these secret illegal meetings not put the board at risk of having any decision they make to close schools, instantly overturned? They can’t. And, the total page count of both their briefs equals mine. Yet, they miss the point of the special protections the sunshine laws are supposed to provide.

thumbnail of Brief Rule 65 and Disband.021218

The more competent response filed by the private attorney for the district. Still wrong.

thumbnail of Brief of defendants 31861677

The city filed for the school board. It’s short, and harmless

David vs Goliath: round 1, or what do you call four lawyers installing a light bulb?

The Ohio Sunshine Laws are laws that mean well, but are designed with so many gotcha factors that people have to feel really pissed before they jump through the hoops. Like the first one: Get a lawyer. Pay the lawyer. Then filing fee ($330.50), then show up in court. Watch the government agencies who broke the law, show up in court, unprepared, with 4 lawyers to tell the judge you are wrong, and this whole thing is just David being an idiot (while their meters are running full tilt.).

Then we have to argue about what laws apply, even though Judge Richard Skelton made that very clear right off the bat. His reading of my brief and the law in question, ORC 121.22 said to him that Rule 65- the procedural rule used for asking for a Temporary Restraining Order, said that since the Sunshine Law had remedies (what he’s supposed to do to punish the lawbreaker) there was no need to bring in Rule 65, which is a federal law. In other words, the specific rules of the State law apply because the the general rule (rule 65) is controlled by the specific one. Did I lose you? I hope not.

I was wondering why even with their expert on the Sunshine Laws they weren’t ready to discuss the merits of that part of my filing?

This wasn’t an actual trial, so I wasn’t allowed to introduce evidence. All I could do was to turn to my filing to ask for relief.

Skelton stated a few things that made a lot of sense to me (but apparently, Brian Wildermuth, attorney for the District, wants to pick a fight with a judge known for being feisty): one, that laws are generally in place to “do the right thing.” Two- that while unable to guide me, he’s working toward transparency, and understands that this law in particular is written in mostly plain terms- in order to make sure the people keep their elected officials in line.

Wildermuth tried to say that I’d been allowed to attend and video meetings and that they’d comply in the future, and that this one “bus trip” is over, and therefore there was no need for my case. Totally denying the fact that I was shut out of the bus trip- and that what happened in their closed rolling yellow conference room was a meeting held in secret, as was the tour of Valerie Elementary. They also claimed that they cut short the trip, after hearing from the judge that this may be a violation.

If you watched the videos from facebook live- or my edited video of the event, you’ll know that yours and mine idea of cutting off a bus tour would mean, stop doing what you are doing and return home. A go to jail, go directly to jail, do not pass go, do not collect $200 moment if there ever was one. The bus continued on from Valerie, to Meadowdale Elementary and Meadowdale HS and then to Wogamen middle school and then back to DPS.

Let’s also be clear, that the government bodies could send 4 lawyers on your tax dime to deal with my complaint, yet, none were prepared to answer the case.

Let’s also be clear, that the judge suggested to the lawyers yesterday to hold off on the tour, and that Dayton City Officials were told NOT to enter- hence my conversation with Jeff Mims outside Valerie on camera about my mom. Let’s also be clear, that Mohamed Al-Hamdani, the mastermind behind this task force, actually had the bus pull over between DPS HQ and Valerie so he could get off the bus. Some of the people knew better, but did it anyway.

My arguments were basic: That by participating in a single secret meeting, the committee has poisoned any decision that the schools may make on closing any buildings. School Board Members William Harris, Robert Walker and Mohamed Al-Hamdani would and should have to recuse themselves. Dr. Lolli, Burton, Treasurer Abraha, also have now poisoned themselves. Any closure could be challenged in court by the community saying deliberations were held in private- thereby, just like inadmissible criminal evidence, forcing whatever decision they make to be illegal.

The fact that Lolli keeps saying she has a right to do these things in public is an embarrassment. It’s really just time to do with her, what the board did with the woman who hired her- part ways. But, without the payoff. She can serve as a principal, or something until the end of the year, while we hire someone who can abide by the sunshine laws and not require a bunch of people picked illegally to advise them on what to do.

The sad thing about all this, is the lawyers want to continue with their charade of denial. This will be costly for the district. I look forward to depositions, and a trial, because, much like the Dr. Markay Winston EEOC investigation which ended up bringing the end to Rhonda Corr, I think I know the right questions to ask people under oath that will show that this district leadership, has acting illegally (I was chastised for calling it criminal, because there is a difference to lawyers- while the rest of us think that when you break the law, you are a criminal, they don’t think that way.)

Watch the video, read the briefs, examine how many times in the tour video that they said NO, YOU can’t come in. I believe everyone of those, times the number of people who should have known better equals $500 ea instance… but, we’ll see.

And remember while you’re on Youtube to subscribe to my channel. I need 1000 subscribers to monetize it. Thank you.

For the record, what do you call four lawyers installing a light bulb? More billable hours, and no one that actually knows how to turn on a light.

 

Short thoughts on DPS school closings

Instead of a long post- I’m just going to share a few thoughts in a bite size chunk.

First off- if the district hadn’t been run by fools, this wouldn’t be an issue. The students are still in Dayton- they are just choosing to go elsewhere. Sure, better marketing might help, but DPS has failed to address a basic issue of safety, and academic performance is still perceived as mediocre overall.

The typical DPS High School is 450 students. We have Stivers, Ponitz, Belmont, Dunbar, Meadowdale, Thurgood Marshall. That’s 6 schools, with 6 staffs- including principals. I went to a three year high school that had 2,400 students and routinely had between 30 and 40 National Merit Scholars.

Dayton could have a lot less high schools and do just fine. Note, 9th grade is the critical point where DPS loses young black males. A dedicated 9th grade building, is one solution. The other problem is that DPS has Stivers, Belmont and Meadowdale going 7-12 which screws numbers up too.

When it comes to placement- Thurgood is almost in Trotwood- a district that only has 2400 students or so- and pays a superintendent, a treasurer, a school board and all the rest of that overhead. DPS could just merge with Trotwood and with Jefferson a district of 800- and save a ton of money  on overhead and balance things out.

The real reason the city gives a shit about which buildings close you ask? Well, other than Nan Whaley’s megalomania? Meadowdale Elementary and HS are both in Harrison Twp- where the teachers don’t have to pay the 2.5% Dayton income tax. Close them down- and Dayton doesn’t care- close 2 others down- and they lose a few million in taxable income. How many of you think about stuff like that?

DPS just screwed parents twice in the last two years without asking- one was the switch to middle schools- which really pissed off a lot of Wright Brothers parents- and DPS switched to 4 bell times- which can be confusing and a pain in the rear for those with kids in the district in multiple buildings. DPS never asked the community about either switch- DPS just pulled the trigger- and shot themselves in both feet.

Maybe, if DPS went back to what was convenient for parents- they might come back to the district? Nah, DPS wouldn’t think about that.

And lastly- before DPS goes on and talks about involving the community in this discussion- maybe you can publish the exact numbers, trends, staffing and costs- for each building- so maybe the community can actually work with real data in doing an analysis? That’s how the big boys do it.

I’m placing a bet, a real, competent school board, hiring a superintendent that really knows and understands the district and the community- could solve these problems in less than 2 years.

DPS starts 2018 out illegally

There they were, Jocelyn Rhynard, John McManus, Mohammed Al-Hamdani, Rev William Harris, Reverend Walker, the superintendent, their legal council, sitting in Board Chambers agreeing to join together with an illegal meeting of the Dayton City Commission where Nan Whaley, Jeff Mims and Chris Shaw to create a task force – consisting of mostly people who don’t live in Dayton to provide guidance of the Dayton Public Schools.

First up: There was no legal meeting of the DPS board to discuss and authorize and direct the Superintendent in this course of action. Rhynard and Al-Hamdani haven’t been sworn in yet. Technically a quorum would be Harris, McManus, Taylor and Walker. Superintendent Libbie Lolli is acting to subvert the new boards authority before it has even been seated.

Required action: voiding this action until the new board has been sworn in and this has been discussed at a Business meeting. Reprimands should be handed to Lolli and the board attorney for violating state law.

On the City Commission side- the city prosecutor should file against the commission for holding a public meeting, without proper calling of a meeting. It is a violation of the Sunshine laws.

Their action is also null and void.

As to the “Task force” – since the Ohio Constitution puts a strong emphasis on local control- and grants school board members special leeway (in that it’s incredible hard to remove them for cause- one of which is residency- see Baguirov) there is no way a task force of non-residents should have input on the future of DPS – at least until it’s taken over by the state (which as this continues, looks more imminent).

Acting Superintendent Libbie Lolli is not looking too good on the PR front already. First she sabotaged her tenure by letting associate superintendent Sheila Burton spring an incompetent presentation on school utilization via spread sheet in the Dec Review session. This opened up a total and complete shits storm since most of the underutilized schools were on the West Side. The lack of a proper prepared statement and course of action has led to a Dayton Business Journal article fueling fear mongering of 9 building closings (the original estimate was up to 3).

No clickable link on the email on this incompetent press release

No clickable link on the email on this incompetent press release

The press release on the DPS site concerning this task force (where the meeting wasn’t properly announced through channels- I didn’t get any wind of this until both Ch 2 called and Mama Glenn sent me a message on FB)- only had a non-functioning email link on how to suggest ideas, with no background info (you are supposed to have ideas without the data to work with) and no listing of the people on the task force and their qualifications.

My post, “DPS doesn’t need no stinkin taks force” is the only place I know where you can find the listing of members and their relation to the district.

To fully understand the folly of this nascent boards actions, they are sworn to protect the district and have a fiduciary responsibility to oversea the district- giving Dr. Tom Lasley, head of a competing board, funded with Dayton tax dollars, that actually serves to fund kids who go to private pre-schools instead of Dayton’s 5 start pre-schools – leading to underutilized buildings is flat out criminal.

This task force idea is a good reason to start a search for a Superintendent smart enough to know when she’s being played.

A good superintendent’s first plan of action should have been to start working on identifying ways to bring students back to the district. Apparently we have a superintendent who wants to retreat instead of fight the battle that needs to be fought.

I’m going to leave this board with two words to consider to solve your problems, or at least have a real shot at not closing buildings and bring leadership back to this district: David Lawrence.

 

DPS don’t need no stinkin task force

The new school board hasn’t even been seated, and Mayor Nan Whaley has a new task force on “rightsizing” the schools.

And of course, we name 16 people to this that are part of the status-quo, starting with Commissioner Jeff Mims who quit the DPS board to be a state board of ed member- which he quit to become a city commissioner.

His Co-chair- is Mohamed Al-Hamdani- who refers to Mims as his mentor, yet Mims can’t even pronounce his name.

I warned people of Al-Hamdani’s ego being an issue and already we see him jumping off as a co-chair of an unsanctioned organization, representing a board that hasn’t been officially sworn in.

If we want to be real for a minute, let’s talk about the tenuous relationship between the board and the city commission, who stopped having joint meetings last year as the district fell into the abyss caused by Superintendent Rhonda Corr and the levels of distrust caused by the manipulations of Dr. Adil Baguirov. For them to be all kissy faced already smacks of the fear many had of the slate- that Nan was pulling the strings. This was suggested to me by Board Member and patronage puppy, Sheila Taylor who told me she was told to nominate Harris as an African American to the board presidency by some unknown power. My guess: Nan who is joined at the hip with Mark Owens, the party chief and Sheila’s boss.

Not that Nan isn’t already flexing her megalomania by running for Governor- while being Mayor. Remember, her Issue 9 funnels tax dollars to a private, unregulated school board- “Learn to earn” that pays its board members a lot more to just deal with pre-school- and also funnels money to private businesses. Nan’s also backed tax abatement for everything from GE to Emerson to 80% of the buildings downtown. This hurts DPS.

When I called everyone and their mother to investigate Baguirov for his residency violations- she sat on her thumbs, as did all her minions.

Before we look at the “best opportunities for kids” as Mr. Mims promises, let’s point out, we wouldn’t be closing schools if DPS was every parents first choice. Fix the schools, fix the “enrollment problem.” First and foremost- kids need to be safe in school- we’ve shown you videos of what has happened at Ponitz. Was there an outcry? An investigation? Nope.

As always, this is about money- and Nan wants her fingers in the half a billion budget that DPS controls. Lots of opportunities to add more patronage people to her command is the way she sees it.

The list of people on this new task force almost makes me vomit.

  • Mims and Al-Hamdani- co-chairs.
  • Brian Bucklew- runs Greater Dayton Area Hospital Association- an illegal organization that helps the health care powers that be collude and raise prices. Considering they don’t pay property taxes to the schools- this is an affront to the citizens of Dayton. For the record- I like Brian, I just don’t like his organization.
  • Ron Budzik- Dayton Business Committee
  • Bing Davis-same old tired faces. I like Bing. But, do we have to keep turning to our antiques? Where are the young voices?
  • Shelly Dickstein- Dayton City Manager. Really?
  • Debra Feldman- Children’s Medical CEO. Pay property taxes, then talk.
  • Bill Harris- on school board now. Did anyone appoint him to this from his elected body?
  • Tim Kambitsch- CEO of Dayton Metro Library. This is the guy who won’t spend money on implementing the Dolly Parton Imagination Learning Library program- a program that’s proven to help improve reading scores.
  • Tom Kelley- from JFDS.
  • Dr. Tom Lasley- head of Learn to Earn- and a proponent of charter and privatization of education.
  • Brandon Policicchio: Dayton RTA Chief Customer and Business Development Officer. These are the people who don’t like transporting DPS students.
  • David Romick – DEA head
  • Richard Stock from UD. This is the guy who helped decimate downtown business real-estate by justifying Austin Landing with their no income taxes for white collar workers policy.
  • Reverend Walker- again, of the school board, without a vote. Also, should resign as I posted last night.

We just elected a new school board. We’ve not even finished firing Rhonda Corr. It’s time to let the new board do their job.