Long time journalist and host of the KET program, Al Smith, said: "I was told, by a good source, that when they went into that meeting...Wednesday morning that there were seven votes against hiring Dr.Barbara Erwin from the St Charles, Illinois school district, which is about half the size of the Lexington district....but then, when they came out four hours later they hired her. What happened?
Ronnie Ellis, a reporter for the CNHI News Service, responded: "She went in for about two hours with them behind closed doors. Our information...was that her ratification might be in trouble. She had been called on inconsistencies in her resume - whether she had twice been named Superintendent of the Year in Texas. She brought with her plaques and rings indicating that she had, and apparently persuaded them that her resume was correct. While outside, even while she was in there, another controversy rose about her resume, and still another one has come up today. But, when they convened in public again, they had 10 votes to hire, and none against. Doug Hubbard, the 11th member of the board had said he would oppose it, but he was out of town and couldn't vote. He did participate by conference call in the discussion...Governor Fletcher came down later for a recpetion at which she again said that her resume was correct. He welcomed her to the state and said that he was sure she had gotten a good flavor of the Kentucky press.
Yes, and Kentucky has gotten a good flavor of Erwin's competence.
Tom Loftus, Frankfort Bureau chief for the Courier-Journal: "Well Ron, when does she start exactly and is there any chance that some of those problems, or some of the opponents she has raising concerns at least, can delay or stop that?"
Ronnie Ellis: I don't know about delay at this point. She has signed a contract..She will begin July 16th at $220,00 a year for four years, but there's a 90-day termination clause for either party. There continue to be questions about her resume and there are indications that even a couple of board members who voted to hire her Wednesday have buyer's remorse. I'm not sure this is over."
Al Smith: "What was the fourth discrepancy that showed up today, Friday?
Ronnie Ellis: I think it's Dick Innes of the Bluegrass Policy Institute in Bowling Green, a conservative think-tank, divulged that her resume indicated that for ten years she was on the executive committee of the American Association of School Administrators. She was, indeed on that committee, but only for three years. Mark Hebert of WHAS called and got a hold of their PR agent who confirmed those years and those numbers, so her resume in incorrect. Went on to say that she had been active in those disputed years, but had not been a member of the executive committee as her resume contends.
Kentucky School News and Commnetary contributed to this effort as well.
Al Smith: "Of course, Tom mentioned that point about the press. The Courier-Journal, the Herald-Leader, the Ashland Independent, the Frankfort State Journal; all said she was the wrong person. I wrote an...editorial column...emphasizing the attractiveness of having a little pause where people could look a little futher, discuss the issue, maybe get through the election...That was my argument...but none of it seemed to have any effect on the board. You know, the discrepancies keep beingSources in Chicago tell me that Erwin's student achievement numbers (like all Illinois district's numbers) benefitted from changes in the Illinois state testing structure. But I haven't had time to look into that. Yet.
mentioned...but the thing that has puzzled me is the temperament question. In every district, there...are these dismayng reports about a temperament that is difficult working with people. You've got to have powers of persuasion to deal with 665,000 school children in this state and their teachers, and parents, and the staffs. It's a big job calling for a lot of ability to get along with folks.
Ronnie Ellis: A couple of reporters who cover this story and I have spoken, and our reactions were all the same. When we talked with her we found her very engaging, very forthcoming - initially - and I think that's what happened with the board. But in Scottsdale, the teacher's association said she ruled by intimidation, there were some layoffs, or resignations, and several million dollars in a buyout for some of those staff, I think. I read the letter that accompanied her resume today...and she talks about some of her greatest strengths being people skills, communications...
Al Smith: The first person I called in Texas said she was an absolute disaster in the Allen school district, that they had the highest turnover rate of any school district in the state, and it fell from 26% to 14% after she left.
Ronnie Ellis: In fairness, her supporters on the board will say that everywhere she's been she's significantly increased student achievement and you know that's wha they're all worried about. We're supposed to get to proficiency for all students in Kentucky by 2014, and the current projection is that we're only...at about 37%. So they're looking for somebody who will come in there and shake things up.
Al Smith: But there's 90-days where they can change their minds, where they can get out of it?
Ronnie Ellis: Either party.
Al Smith: Either party.
Ronnie Ellis: I think the board has to have cause on that.
~
These, and other comments in the press have led me to think there was some kind of a 90-day window for reconsideration; with or without cause...after which there might be some kind of buy-out required.
For expert help in thinking about these questions, I wrote to the Kentucky Law Review blog.
Coincidentally, I was contacted by Kentucky School News and Commentary reader and former state board member, David Tachau. Tachau who is an attorney with Tachau, Maddox, Hovious & Dickens PLC., in Louisville, and was involved in drafting a portion of the previous contract for former Commissioner Gene Wilhoit. He suggested to me that a 90-day window might be the wrong way to think about Erwin's contract, and by looking at an early draft, thinks the language used on Gene Wilhoit's contract may have been:
7. EMPLOYMENT AND TERMINATION. The Commissioner’s employment with the Board shall be at-will and may be terminated as follows:
a. Voluntary Termination. The Commissioner may terminate his employment in his discretion upon written notice to the Chairperson of the Board, ninety (90) days in advance of termination if possible. If this occurs, the Commissioner shall be entitled to his salary and applicable benefits, including transportation, through the date of termination, although no additional benefits shall accrue after delivery of notice.
b. Termination without Cause. The Board may terminate the Commissioner’s employment at any time in the sole discretion of the majority of the entire Board, by providing a minimum of ninety (90) days’ prior written notice to the Commissioner.
c. Termination For Cause. The Board may terminate the Commissioner’s employment at any time upon written notice to him following a determination in the sole discretion of a majority of the entire Board that there is “Cause,” as defined below, for such termination. If this occurs, the Commissioner shall be entitled to the Commissioner’s salary and applicable benefits, including transportation, through the date of termination, less any amount due by reason of any misuse of funds or
embezzlement, which shall be due and owing to the Commonwealth immediately.
For purposes of this Agreement, the term “Cause” shall mean the Commissioner is convicted of, or pleads no contest to, any crime, whether a felony or misdemeanor, involving misuse of funds or moral turpitude; or a determination is made by a majority of the entire Board, after giving the Commissioner notice and an opportunity to be heard, in closed or executive session to the extent permitted by law, that in carrying out his duties the Commissioner has engaged in serious neglect of duty or willful misconduct, resulting in material harm to Department or to the elementary and secondary education system of the Commonwealth.
But neither Tachau or I have read Erwin's actual contract to see if it conforms to the language of Wilhoit's. For that, I have written KDE legal counsel, and current interim commissioner, Kevin Nolan requesting details and clarification on Erwin's contract.
Responding to my request for on the Kentucky Law Review blog, Ken Henry offered a the following comment: "The Commissioner serves at the pleasure of the Kentucky Board of Education. What the implications are vis-a-vis Ms. Erwin's contract will depend on the terms of the contract itself. I am of the opinion that Kentucky Constitution Sec. 184-186 prohibits buy outs of public school leaders' contracts, and I believe this would also apply to Erwin. I do know, however, that many school districts have been quite creative when executing a buy out of a superintendent's contract, e.g., "special consultant to the Board."
I hope to have this issue clarified in the near future.
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