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.

 

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.

 

Amateurs. School boards and quasi school boards.

If you have lots of meetings, it’s hard for people to pay attention. That’s been the modus operandi of the Dayton Public School Board under Dr. Adil Baguirov. Meetings were long, and many. Last night, where they had to pick a new president and vp and parliamentarian, the meeting ran 2 hours, and then into executive session for at least another 2.

Note- the president doesn’t make more money, has no more power, and has no extra duties other than to run the meeting. The district is run by the Superintendent, who is well paid to be the voice and leader of the school district. So, why it took 2 hours to do that is a pretty good indication of what’s wrong. They even had a long argument about their start times- so this year, their meetings will begin at 5:30 instead of 5pm. Sheila Taylor suggested they put an end time on their meetings- to be fair to the employees who have to be there, to be fair to the board members who don’t get paid more- and to try to put a damn cap on the long pontificating from the dais that became the norm under Baguirov. She was shot down.

She also voted as the only no to appointing Dr. Robert Walker (Div.) as president and Dr. Hazel Rountree (Ph.D.) as VP. I kept waiting to hear her resign in her later speaking opportunities- it was clear she had no faith in Walker.

Most bizarre was the speech by John McManus, who basically ushered Walker to the center seat- saying he’d promised to support Walker and would vote for him, but, if Lacey or Walker couldn’t get 4 votes, he’d step in…. really?

One change, it seems DPS is now going to record all meetings, but they take forever to post them, despite having the tools and bandwidth to do it in real time.

We recorded last night.

If you are looking for insight on how they are going to solve the RTA busing issue, don’t look here, they are still saying it’s not their problem and that they can’t organize a solution because of liability issues- both, untrue, especially next week when the state does count week for attendance for funding.

But as crazy as the DPS board is, we may have a new champion in amateur hour- the “Learn to Earn” board which is now in charge of $4.5 million a year from Dayton taxpayers thanks to the passage of issue 9. To start with- they meet in Riverside, not Dayton. And while they have managed to publish their meeting schedule, they haven’t published minutes, or much of anything on their website. They still have Lori Ward as the DPS superintendent.

We sent our video genius to try to film their first meeting- so the public could see exactly what this unelected body will do with your tax dollars.

First meeting- they got a lecture on the Sunshine Laws- from someone from “Nan Whaley’s office”- here’s that excerpt:

 

Every one who is interested in Ohio politics should learn about the Sunshine laws. Especially school board members (hint, hint).

They get to spend their money anyway they want- unlike the DPS board. So hiring consultants like UD Professor Richard Stock is not a problem for the Learn to Earn (or help our board earn) board. Stock is one of the people who helped guide the Miami Valley Regional Planning Commission on the abomination that is Austin Landing- with its two tier tax structure (only the little people pay taxes there).

Stock catches himself trying to self-edit, since this is a real public meeting- and, oops, maybe he shouldn’t share the facts that the pre-school promise won’t make a bit of difference to the residents moving into Dayton’s new tax abated projects- singles, empty nesters- not parents with kids- at least not parents with good jobs with kids.

The reality is, this board has to waste tax dollars, duplicating a lot of the things that DPS already has in place- finance, HR, health benefits, legal counsel, purchasing, video of meetings etc- as well as a website… that all are overhead- to help give money to people who have 5 star pre-schools? Really? Remember, DPS has the most 5 star pre-schools, and they aren’t at capacity- and have to scrounge for money.

The entire meeting is here:

Lastly, and most important- the pre-election report from  Neigborhoods for Dayton’s Future.PDF was the last filing of the organization that paid for this tax funded quasi-public slush fund. They have still not filed their post general election filing. You can see the big dollar donors in my last post about this.

Until they publish their campaign finance report, they shouldn’t be allowed to meet, or to spend any of the funds- in the name of Sunshine. Also, they need to provide minutes, organizational documents, and their articles of incorporation etc. as well as disclose all expenses. These are public tax dollars at work.

We’ll tape the Friday meeting, but after that, they should have to pay someone to do it. And, maybe, they should consider having their meetings in Dayton- since it’s our money, and our city they are working for- meeting in Riverside just doesn’t cut it.

Sunshine laws and Dayton Public School meetings

Sunshine law cartoon

Columbia Tribune: Sunshine John Darkow
03/09/2005

I had planned to write a post to define the Sunshine laws, how “work sessions” are supposed to work, and what a “business meeting” is.

I was also going to cover how most elected bodies manage going into executive session, what they are allowed to talk about behind closed doors, and what it means if there is a board that spends a LOT of time in executive session- but then, I said, maybe I should look back on the 2500+ posts on this blog… surely- I’ve covered it before? And, the answer is: of course I have- over and over. Even about DPS. Even with arguments in comments with Dr. Adil Baguirov, Joe Lacey, etc.

I could just send you to all the posts- and you know what, since I’m feeling stuffed and lazy this Thanksgiving, I’m going to do that. But, there are a few things I need to point out before I do that.

Most boards go into executive session at the END of their regular meeting. This is so guests who are invited to speak, don’t have to sit around and wait for them to finish in the back room. It’s also usually done this way, so people WON’T know how long they are in executive session.

Why is the length of executive session meaningful? Typically, the limited issues that are allowed to be discussed in executive session are ones in which a board/commission/etc. is reviewing the findings and options that are presented by those they supervise- for DPS that means the Superintendent and the Treasurer. They should be getting well prepared documents in advance, with cost benefit analysis, organizational charts, performance reports, contracts, bids, etc. By the time they arrive, they should have their questions ready, and should know the material inside out. Then it comes down to are there 4 votes to support the action? This really shouldn’t take long if the organizational leadership has provided cogent, succinct, relevant briefing material. So, when you have long sessions behind closed doors- it means you are questioning your leadership. Not a good sign.

Competent leadership guides the board in the direction they are taking the organization. Weak leadership relies on the board to guide them in doing their job.

Based on the amount of time the Dayton Board of Education is spending behind closed doors- our new superintendent must be floundering in their eyes. Have they recognized yet that they made a huge mistake in hiring Rhonda Corr? Is that why there have been long executive sessions- ones that she’s not in? That most likely means they are discussing her future here.

Executive sessions are usually not needed for things that need immediate action if an organization isn’t flying by the seat of their pants. Announcing a list of layoffs, then going into executive session, then voting on it- in a “work session” instead of a “business meeting” has so many flaws in it, there is the potential for 20 separate or one-class action lawsuit for managing it incorrectly. The former board Treasurer is already suing them for his illegal firing. Items like this, should be discussed in executive session- and decided on, then posted on the next business meetings agenda- with good notice, and then acted on. At least in theory – that’s how it’s supposed to go.

But, this post is already longer than it needs to be.

You could have just read this post: What is a legal meeting of the Dayton City Commission? Yes- it’s about the city commission, but it spells out the differences between public meetings and work sessions- which the board of ed calls different things- review sessions, strategic planning discussion, various committees etc. It’s why Dayton Daily news education reporter says that this board meets more, longer than any other school board in the region. Hmmm, maybe that’s why the district is failing?

Or this post: Dayton Board of Ed votes 4-3 to donate taxes to GE/UD
This one doesn’t really get into the nitty gritty of the sunshine laws, but is interesting because Joe Lacey denies screaming and gets involved in the comments. The reality is- the board didn’t really want citizen input- and gave away a big tax break to General Electric. The fact that the vote was 4-3 shows there was a little common sense on the board at the time with current board members Lacey, Taylor and Lee all voting yes. None of the no votes are still on the board. There are 87 comments on this post- a lot of insight for those who want to learn more.

This post isn’t about public bodies meeting- it’s about people who buy off public bodies meeting. The cast of characters has a similar lineup of the people who bought and paid for Issue 9. Public officials, Private meeting. Our Dayton – discussed behind closed doors as always- follow the money if you want the truth.

And, saving the best and most relevant for last, including comments by Dr. Baguirov and Joe Lacey, is the one about how the meeting was handled when the Board was in the process of subverting former Superintendent Lori Ward as she was about to attend a forum with local groups. Time for some sunshine in DPS meetings The labeling of the local New Black Panther Party and the Nation of Islam as hate groups was just one more indication of the racist overtures of the current board president. Again, comments are illuminating with contributions from Baguirov and Lacey.

Several former employees have said that they felt they were being discriminated against because they were African American. The list of firings from the November 8th meeting- had a preponderance of African Americans on it. Several former African American employees said they wouldn’t come back to the district unless Dr. Baguirov is either off the board, or minimally not board president. Ideally, they’d like to see a majority of the board no longer on the board, but Baguirov was the main sticking point.

One last observation, strong black males, outspoken competent leadership, seem to have been high on the list for the recent cuts that were made with bad enrollment and financial data. Something else to think about.

If you go back to my speech at the October board meeting, I said the number one thing that is required for building the school brand back is trust. The “Sunshine Laws” are key to building trust through transparency. The board needs to make a few key changes immediately if they want to restore trust after this latest round of fiascos:

  • All board meetings should be filmed and put online.
  • All board meetings should have complete agendas published at least 48 hours before a meeting- and ideally 72 hours before.
  • All business, items to be voted on, must be done at a business meeting, or a meeting where citizen participation is welcome.
  • Executive sessions should be held at the end of regularly scheduled meetings, so people don’t have to wait while you futz around in the back room.
  • The system of using “Board Docs” to publish agendas needs so many improvements it should be abandoned. It’s not mobile friendly- or ADA compliant. It seems to be fluid- without clarification of when changes are posted (some info seems to be posted while or after the meeting took place), the sections are confusing and overly complex. It’s not easily searchable. That they pay for this joke of a system is another indication that their IT director deserved his termination more than most.

See you at the Tuesday December 6 2016 meeting, at 5pm where we will learn if John McManus becomes president, if the rest of the cuts using bad data are acted upon, if Rhonda Corr will keep her job.

The meeting the citizens are organizing to plan for this meeting is:

Thursday December 1, 2016 6-7:30 p.m.
Corinthian Baptist Church
700 S James H. McGee Blvd, Dayton

“Parents of DPS students are invited to join a conversation about proposed changes to the yearly budget and personnel in our classrooms.
Please join us to ask questions, provide feedback, and share our vision for the future of our children and community. School board members have been invited to attend to answer questions and provide greater understanding for their plan for Dayton Public Schools.”

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